Cucilovic v Pacific Brands Holdings Pty Ltd
[2012] VCC 1877
•11 December 2012
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-02345
| ZELJKO CUCILOVIC | Plaintiff |
| v | |
| PACIFIC BRANDS HOLDINGS PTY LTD (ACN 098 704 646) | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 July 2012 | |
DATE OF JUDGMENT: | 11 December 2012 | |
CASE MAY BE CITED AS: | Cucilovic v Pacific Brands Holdings Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1877 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Pope v W S Walker & Sons (2006) 14 VR 435
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages and pecuniary loss damages in respect of lumbar spine injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith | Zaparas Lawyers |
| For the Defendant | Mr T Ryan | Thomsons Lawyers |
HIS HONOUR:
1 This is an application which relies on part (a) of the definition of “serious injury” in ss(37) of s134AB of the Accident Compensation Act 1985 (“the Act”); that is, “permanent serious impairment or loss of a body function”. The body function relied upon by the plaintiff is the lumbar spine.
2 The claim by the plaintiff is instituted by an Originating Motion dated 27 May 2011 by which the plaintiff seeks leave from the Court pursuant to ss(16)(b) of the Act to commence a proceeding which will claim damages for pain and suffering and loss of earning capacity.
3 Mr S Smith of Counsel appeared on behalf of the plaintiff and Mr T Ryan of Counsel appeared on behalf of the defendant.
The Evidence
4 The following evidence was adduced during the hearing.
5 The plaintiff swore two affidavits. The first affidavit was sworn on the 12th day of January 2011 and the plaintiff swore a further affidavit on the 11th day of July 2012.[1]
[1]PCB 6-14; 14.01-14.02
6 The plaintiff filed with the Court a number of medical reports and other documents. Pages 6 to14.02, 26 and 32-92 inclusive of the Plaintiff’s Court Book (“PCB”) were tendered in evidence and I marked them as Exhibit “A” (PCB). The plaintiff also tendered pages 6 to 14 and 55 to 62 inclusive from the DCB, which I marked as Exhibit “B”.
7 The defendant tendered a number of medical reports comprised in its Court Book (“DCB”) at pages 1 to 5 inclusive, 15 to 20, 34 to 38 and 98 to 145, which I marked as Exhibit 1. The defendant also tendered an extract from the Hygieia Medical Centre, being the clinical notes of Dr Peter Pjesivac of 8 July 2005, which I marked as Exhibit 2. Further, the defendant tendered an extract of the clinical notes of Dr Quek of the McKinley Medical Centre of 7 July 2005, which I marked as Exhibit 3.
8 In giving consideration to this application, I have considered all of the evidence adduced by the respective parties.
9 The application is brought under the definition of “serious injury” contained in ss(17) of s93 of the Act, which requires the plaintiff to prove that he has suffered a “serious long term impairment or loss of a body function”.
10 The relevant considerations which apply to such an application are as follows:
(a)the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of a transport accident occurring on or after 20 May 1986;
(b)the injury and the impairment must be permanent; that is, permanent in the sense that it is likely to last for the foreseeable future;
(c)the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d)to be “serious” the consequences of the injury must be serious to the plaintiff. In forming a judgment as to whether, when regard is had to such consequences, an injury is held to be serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments or losses be fairly described as “very considerable” and certainly more than “significant” or “marked”?
11 I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test. I have applied the principles set out above in reaching my conclusions in this application.
12 At the outset of this proceeding, Mr Ryan, who appeared on behalf of the defendant, made application on behalf of the defendant that I refer questions to a Medical Panel pursuant to s45(1)(b) of the Act. For the reasons set out in my separate ruling given ex tempore, I refused that application.[2]
[2]Transcript 24-27 inclusive
13 Following on from my ruling, the defendant chose to take an unusual course for this kind of application. No doubt expecting the defendant wished to cross-examine the plaintiff on his affidavits, Mr Smith, who appeared as Counsel for the plaintiff, called his client to give evidence and he was sworn in through an interpreter. No further evidence was called viva voce by the plaintiff. Mr Ryan then told me that he did not seek to cross-examine the plaintiff.[3] This was somewhat of a regrettable and time-wasting exercise, and I was left to wonder why it was that the plaintiff had to grace the witness box at all. In the end however the plaintiff’s evidence in his affidavits remains unchallenged. I assume that that evidence is true and correct and I act on that evidence.
[3]Transcript 40
14 Before dealing with the plaintiff’s unchallenged evidence and then moving to the medical evidence, it is helpful I think that I set out briefly how the issues emerged in the trial of this matter, having regard to the approach taken by counsel for the defendant in the conduct of the hearing. For the purposes of the hearing, Mr Ryan handed up a written submission, part of which is headed “Agreed Facts and Facts in Dispute”.
15 The defendant agrees that the plaintiff was born in Serbia and is forty-six years of age. He completed his secondary education in Serbia, which included eights years of general education followed by a total of four years vocational training. He attended the School of Mechanics in Novi Sad, where he obtained a vocational certificate as a mechanical fitter in August of 1986. The plaintiff later attended a technical college in Pristina for an additional twelve months, where he obtained a certificate as a mechanical technician/inspector quality control, which he completed in June 1988. The plaintiff also completed about twelve months national service in the army in about 1986 to 1987.
16 After completing his education, the plaintiff used his technical qualifications to obtain work for a river barge company, where he worked for about three or four years prior to migrating to Australia in March 1990 with his first wife, from whom he separated in 2000.
17 The plaintiff re-married in about 2004 and has a twelve-year-old son from his first marriage who lives with his former wife. Upon migrating to Australia, the plaintiff worked for about four years at the Toyota Manufacturing Plant.
18 The plaintiff commenced work with Dunlop Flexible Foam (as the defendant was then known) on 8 August 1994. He was employed as a process worker, operating a “peeling machine” which involved manhandling blocks of rubber foam. The plaintiff deposes, in paragraph 8 of his first affidavit, that prior to 2005, he experienced occasional intermittent back pain in the course of his employment over the years but recalls having had only “a couple or so days off in 2002 but otherwise I was able to work my normal duties”.
19 The plaintiff claims that in or about June or July of 2005, he began to experience worsening back pain, which he reported to his employer on 7 July 2005. On the same day, the plaintiff consulted Dr Quek at the McKinley Medical Centre. Dr Quek was not called to give evidence and did not provide a medical report. However, the defendant has tendered as Exhibit 2 the clinical notes from Dr Quek which read as follows:
“Persisting shoulder pains. Also complaining of back pains. Pains mild. Both injuries minor muscular strains. W/c certificate. Mobic (15 mg) prescribed.”
20 On the following day, 8 July 2005, the plaintiff consulted his own general practitioner, Dr Pjesivac. There is no report from Dr Pjesivac and he was not called as a witness. However, the clinical records tendered by the defendant as Exhibit 2 include the following entry on 8 July 2005:
“Complaining of pain in shoulders and upper back over the last 3-4 months.
Apparently repetitive above shoulder length jobs (lifting).
Apparently some mid/lower back pain – over the last 3-4 months.
ROM NAD shoulders + lower back. SLRT –.
Neuro NAD.
Light duties.
Attending Physio.
.. Mobic (7.5 mg) prescribed.”
21 The plaintiff deposes in his first affidavit that subsequent to seeing Dr Quek on 7 July 2005 and Dr Pjesivac on 8 July 2005:
“I continued to work full time with only an occasional day off work but had ongoing back pain.”
22 On 1 August 2005, the plaintiff underwent plain spinal x-rays, and on 19 August 2005, he underwent a lumbar spinal MRI scan. Both investigations were reported on by his treating orthopaedic specialist, Mr Brian Barrett, and I will refer to that later. Mr Barrett examined the plaintiff and reported on a number of occasions both to the plaintiff’s general practitioner Dr Pjesivac and to his solicitors.
23 The plaintiff ceased working for the defendant in September 2009 and has not resumed work.
24 On 1 April 2010, QBE Insurance wrote to the plaintiff advising him that on 1 May 2010, he would no longer receive any worker’s compensation benefits, because the claims agent had determined, inter alia, that:
“Your incapacity for work is no longer materially contributed to by an injury arising out of or in the course of your employment.”[4]
[4]DCB 167
25 This determination was disputed by the plaintiff, who requested conciliation of the dispute.
26 On or about 25 June 2010, a conciliation officer, exercising powers under s56(6) of the Act, caused a referral to be made to the Medical Panel. On or about 1 October 2010, the Medical Panel answered three questions asked of it in the following terms:
“Question 1. What is the nature of the worker’s medical condition (including any sequelae relevant to the injury?
Answer:In the Panel’s opinion the worker is suffering from an Adjustment Disorder with Anxious and Depressed Mood relevant to the claimed lower back and top of shoulders injury.
Question 2.Is the worker capable of performing his/her pre-injury duties?
Answer:The Panel concluded that the worker has no present inability arising from an injury such that the worker is not capable of performing his pre-injury duties.
Question 3.If the worker is not capable of performing his/her pre- injury duties, does the worker’s incapacity for work result from, or is it materially contributed to by, the (claimed) injury?
Answer:In the Panel’s opinion any claimed incapacity does not result from and is not materially contributed to by the claimed injury.”[5]
[5]DCB 154
27 The defendant’s case essentially is that the Medical Panel, having concluded by its answers that the plaintiff was then not incapacitated from work because of his claimed back injury, then I should have regard to the certificate given by the Medical Panel on 1 October 2010 and reject the plaintiff’s claim on the basis that he no longer suffers any injury arising out of or in the course of his employment, much less an injury to the lumbar spine which could be regarded as “serious” within the meaning of the Act.
28 As I understood Mr Ryan, he effectively said that it would be perverse if I granted the plaintiff’s application in the face of the certificate of the Medical Panel. The documents and reports which the Medical Panel had before it in order to make its determination are set out in a schedule of attachments to the referral listed in the DCB at page 166. Whilst a number of the medical reports there listed have also been tendered on this application, the parties have before me filed a much more extensive list of medical reports and, as previously referred to, I have before me the two uncontested affidavits of the plaintiff and they were not before the Medical Panel.
29 Mr Ryan did not, and could not submit that I am bound to follow the certificate of the Medical Panel. [6] He submitted however that I could and should have regard to it. In deciding this matter, I have given consideration to the certificate of the Medical Panel, as I have all of the other evidence. However, the defendant’s submission effectively requires me to ignore unchallenged evidence, especially the affidavit evidence of the plaintiff. In giving consideration to this application I have accepted the plaintiff’s unchallenged evidence. I now turn to that evidence.
[6]Pope v W S Walker & Sons (2006) 14 VR 435
30 In his first affidavit, the plaintiff deposed to the kind of work that he was performing for the defendant. He said that he operated a peeling machine and three processes were involved. A forklift would bring large blocks of rubber foam to the plaintiff’s workstation. The blocks were about 2.2 metres by 2.2 metres by 1.4 metres in size. They varied in thickness with the texture. ? They weighed between 30 and 70 kilograms. From about 2006, some of the blocks were cylindrical shaped, which were slightly lighter. The plaintiff deposed that he had to bend down to the floor and lift one end of the block of foam and roll the block into a boring machine over a lip of the machine. He said a hole about 10 centimetres in diameter was then bored by the machine through the centre of the block. The foam that was bored out was then put in a bin. The plaintiff’s evidence, uncontested, is that he then had to place a metal bar known as a spool – which was about 2.4 metres long and 10 centimetres in diameter, weighing about 4 kilograms – in an opening in the peeling machine where it was then pushed through the hole in the centre of the foam. An automatic lifting device then lifted the spool and the foam into the peeler. Each end of the spool fitted into support on either side of the machine.
31 The plaintiff went on and said that when the block of foam was in the peeling machine, he had to manually push the foam to rotate it and the spool. ? The pushing was done at a height of about 1.5 metres from the floor. At the base of the foam in the machine was a blade cutting off sheets of foam from about 2.5 millimetres to 30 millimetres in thickness. The plaintiff had to push the foam around about ten to fifteen times before the edges of the block of foam would be cut off and the machine could then cut a continuous sheet of foam from the cylindrical block that was left. The first cuttings from the foam would fall to the floor in front of the plaintiff’s feet where he was pushing the block. The plaintiff had to pick these cuttings up and put them in a bin before turning the block further. When a continuous sheet of light thickness began to emerge from the machine, the plaintiff had about 3 metres of length of such sheet which he would thread in between two other spools and a roller. The plaintiff said he would place a cardboard core on one of these spools. The roller would automatically rotate such spools which would pull the sheet from the block and wind it onto the spool with the cardboard core. The roll of foam sheet would then be ejected from the machine onto a bench. The plaintiff would then pull about 4 to 5 metres of plastic, the width of the spool, from a roll of plastic and manually wrap it around the roll of foam sheet and then pull the roll with the metal spool onto the floor and remove the metal spool and roll the foam sheet to despatch. When the plaintiff first started peeling the foam blocks, the quota was forty two a shift, but it became fifty two blocks a shift in 2003.
32 The plaintiff, in his first affidavit, deposed that the heaviest part of his job was rolling the original block of foam into the borer and manually turning the roll on the peeling machine. The plaintiff usually worked between 6.30 am and 3.00 pm and he averaged about five hours of overtime per week prior to his injury in 2005. He was earning approximately $950.00 gross per week from his employment with the defendant.
33 The plaintiff deposed that he had occasionally intermittent back pain during the course of his employment with the defendant over the years and as far as he can remember he only had a couple of days off in 2002, but otherwise he was able to work his normal duties.
34 The plaintiff deposed that in about June or July of 2005, he began to experience worse back pain. He complained about this and the injury was put in the Injury Book and the employer sent the plaintiff to the McKinley Industrial Clinic where he attended on 7 July 2005 and saw Dr Quek. I have referred to the clinical notes of Dr Quek above. The plaintiff deposed that he was referred for x-rays and put on light duties, and he was also referred for physiotherapy, which he said he attended about ten times over the next few months, although this did not assist him.
35 For light duties the plaintiff was transferred to the packing area. There, he said he worked in a team of two, packing foam products such as pillows, compressed foam parts for cars, parts for foam furniture and mattresses. He worked at a bench about 80 centimetres from the floor. The material to be packed was brought to the bench on pallets by pallet jacks. The plaintiff had to wrap the material in black plastic from a roll about 30 centimetres in diameter when full, and about 1.1 metres wide, kept on a spool suspended about 40 centimetres above the plaintiff’s workbench. The plastic was doubled over the rolls so that the plaintiff could open it up on the bench to make it 2.2 metres wide. He would lift the material to be packed and put it on a bench on the black plastic. The heaviest item he had to wrap were king-size mattresses, which weighed about 45 kilograms. To wrap these, the plaintiff had to get a second piece of plastic and join it together. He also wrapped other mattresses. The lightest item that he would pack weighed about 3 kilograms, involving an order of small foam. He said, in his affidavit, that at least fifty per cent of the packages that he assisted to weigh were each over 15 kilograms in weight.
36 The plaintiff continued doing light duties pursuant to certificates provided by Dr Quek and his own general practitioner, Dr Pjesivac, whom he saw in July of 2005, and I have referred to his clinical notes above. The plaintiff said that he continued to work full time with only an occasional day off but still had ongoing back pain. He deposed that Dr Pjesivac arranged for an MRI scan of his back on 19 August 2005.
37 Importantly, the plaintiff deposed that in the second half of 2006, he began to be aware of pain and pins and needles in his left leg which were worse in the area of the left calf and heel.[7] He consulted Dr Pjesivac who referred him to Mr Barrett, an orthopaedic surgeon, whom he first saw on 12 September 2006. The plaintiff deposed that Dr Barrett arranged for an MRI scan of his back on 19 December 2006. He said that he was advised by Dr Barrett to be careful with his back and to perform only light duties, and he was given a light duties certificate with no lifting above 5 kilograms. He said that notwithstanding his certificate for light duties, the light work that he was provided with by the defendant was the work involving lifting of heavy mattresses and packing them et cetera, which I have referred to above.
[7]PCB 10
38 The plaintiff remained doing packing work until the middle of 2009, when he said his back pain became worse. He said “I do not remember any specific incident” and Dr Pjesivac put him off work on 25 August 2009 until 10 September 2009 and referred the plaintiff back to Mr Barrett. The plaintiff saw Mr Barrett again in September 2009 and he arranged for a further MRI scan of the plaintiff’s back which was carried out on 16 September 2009.
39 The plaintiff deposed that Dr Pjesivac gave him a certificate to return to work on or about 11 September 2009 with a restriction to lifting no more than 2.5 kilograms and there was to be no standing or sitting for longer than thirty minutes and no repetitive bending or twisting of his back. Upon his return to work, the plaintiff was given clerical type work to perform, but he said that there was not much for him to do. He said he worked performing these clerical type tasks for about two weeks and then the defendant’s manager told him there was no more light duties for him. This was about the end of September 2009 and the plaintiff has not been able to return to work since that time.
40 The plaintiff deposed that Dr Pjesivac referred him to Mr George Kokovas, a physiotherapist, and he said that he saw him weekly for about four to five months, stopping in April 2010 as WorkCover would not pay for further treatment. Dr Pjesivac also referred the plaintiff, according to his first affidavit, to a Stojanka Stefanovic, a psychologist, as the plaintiff said that he was becoming anxious about his ongoing back pain. The plaintiff deposed that he saw her monthly until about May of 2010, at which point WorkCover refused to pay for any more attendances.[8]
[8]PCB 11
41 The plaintiff deposed in his first affidavit that he was continuing to see Dr Pjesivac about once a fortnight, and Dr Pjesivac continued to prescribe medication in the form of Tramal in the morning, afternoon and evening, together with Mobic and other blood pressure medication.
42 In his first affidavit, the plaintiff deposed to suffering –
“… pain in my low back all the time which feels like a needle has been pushed into my low back. I also have intermittent pain in my left leg and numbness in my left foot. I can only lift a few kilograms now and have found that if I try and lift more I get more back pain.”[9]
[9]PCB 11, paragraph 17
43 The plaintiff deposed that when he is on his feet for more than an hour, he wants to sit down and rest his back. But, he deposed, sitting also is painful and he gets a heavy tight feeling in his low back. The plaintiff deposed that –
“… I am usually more uncomfortable if I put more weight on my right buttock and take some weight on my arms.”
He said:
“… When getting up from a sitting position I have to use my hands and when I first get up my back pain is usually worse and I can limp on the left leg because of leg discomfort.”[10]
[10]PCB 11, paragraph 18
44 The plaintiff deposed in his first affidavit that he can drive a car but he tries to limit the duration of his trips because of increasing back pain with the sitting and twisting involved. He says he has to drive slowly, especially over speed humps –
“… as any jarring of my back makes the back pain worse”.[11]
[11]PCB 12, paragraph 19
45 The plaintiff deposed that he is usually most comfortable when lying on his back but he still finds it difficult to sleep. He said:
“… I used to sleep on my stomach but have found that this is too painful for my back now. It is best if I lie on my right side. I wake several times a night because of back pain.”[12]
[12]PCB 12, paragraph 20
46 The plaintiff went on to say that the morning is usually the worst time of the day for his back pain and all movements at this time are usually painful. He says that he tries to do some exercises suggested to him by Mr Kokovas whilst lying on his back in bed. These exercises involve slow rotation and stretching of his back and legs.
47 The plaintiff deposed in his first affidavit that he has progressively provided his wife with less help around the house with vacuuming and mopping. He says that these tasks make his back pain worse. He is also unable to attend to work in the common garden in the block of units where he and his wife reside. He said:
“… I can squat to get to the ground but it is painful to get up and I try to avoid this. I also can not bend too far.”[13]
[13]PCB 12, paragraph 22
48 The plaintiff deposed that prior to his back injury he liked fishing on the Mornington Pier where he would go four to five times per year with friends from his place of work. He said that he has not been fishing since the middle of 2009 as he could no longer cast his rod and the travelling and standing around would increase his back pain.[14]
[14]PCB 13, paragraph 23
49 The plaintiff said that he used to enjoy senior soccer on Monday evenings at the Serbian Community Centre in Keysborough and he used to enjoy watching soccer. He said that he can no longer play senior soccer and he no longer goes to watch soccer because the standing and sitting around make his back pain worse, especially in cold weather.[15] He said he now only occasionally attends the Serbian community centre for dancing et cetera and he now only attends on special religious holidays to light a candle.[16]
[15]PCB 13, paragraph 24
[16]PCB 13, paragraph 24
50 The plaintiff said that he has not been seeking work because he cannot think of a job that he would be able to do with the restrictions caused by his low-back pain.[17]
[17]PCB 13, paragraph 25
51 In his second affidavit, the plaintiff deposed that he continues to see Dr Pjesivac fortnightly and he prescribes medication which remains Tramal and Mobic. He says that he continues to have difficulty sleeping and feels very lethargic and drowsy, and his back pain with pain spreading into his left leg has remained much the same since the time of swearing his first affidavit. He said in his second affidavit:
“… I have discomfort in the back all the time. However I have had more frequent exacerbations of my lower back pain to the extent that I have very little mobility for a number of days until it resolves. During these periods I increase my pain killing medication and it slowly resolves. I have not been able to return to any work.”[18]
[18]PCB 14.02
52 As I indicated, the plaintiff’s affidavit evidence is unchallenged. As I said earlier in this judgment I accept that evidence. Much of what the plaintiff has deposed to is consistent with what he has told various medical specialist from time to time especially Dr Barrett. I turn to that evidence.
53 The plaintiff was referred to Mr Brian Barrett, orthopaedic surgeon, by Dr Pjesivac, and a number of reports from Mr Barrett have been tendered in evidence.
54 On 2 January 2007, Mr Barrett reported to Dr Pjesivac following an MRI scan which was carried out on 19 December 2007. In his report, Mr Barrett said, inter alia, as follows:
“These changes are really quite subtle and show that the L4-5 disc has a small and very lateral bulge present on the left side, pushing into the intervertebral foramen at that level and closely applied to the left L4 nerve root.
In addition there is a tiny posterior bulge at the L5-S1 disc, this time slightly more on the right than the left.
I have telephoned your patient regarding these changes and asked him to return for explanation, in my rooms, and so that I can give him the films back for safe keeping. He is still working at light work, on a full time basis, and I will warn him that he must continue to avoid heavy lifting, prolonged stooping or heavy pulling activities so that his symptoms are not aggravated. There is really little else that we can offer him for this type of injury and as long as he is careful, both at work and at home, he may keep managing reasonably well. However if he goes back to heavy lifting his symptoms will surely increase in severity. I will write after I have seen him in my rooms.”[19]
[19]PCB 32
55 Mr Barrett saw the plaintiff ten days later and again he wrote to Dr Pjesivac, reporting after he had spoken with the plaintiff. He reported, inter alia, as follows:
“Your patient had been working full time at light work, with Dunlop Foam, since about last August and he tells me that he is currently on holidays and is due to return within the next week or so. He states that he still has considerable back pain and left sciatica, of an intermittent variety.
I carefully explained the findings in the MRI, to your patient, stating that there was no evidence of a serious lumbar disc injury and the radiological features were relatively mild, being a small and very lateral left sided L4-5 disc bulge and a tiny L5-SI disc bulge as well.
As I cannot detect any serious lower lumbar disc injury, that would prevent him working, I have suggested that he return to full time and light work, when his holidays cease and to ‘see how he goes’. I have stressed that he is not to return to prolonged stooping and heavy lifting activities as he was previously involved in, otherwise his symptoms will be aggravated and he will have a more troublesome problem on his hands.”[20]
[20]PCB 33
56 In argument, Mr Ryan submitted that there was no evidence whatsoever of radiculopathy relating to the plaintiff’s lower back injury. I reject that submission. In my view, and accepting as I do the evidence provided by Mr Barrett, there was evidence at an early time of radiculopathy demonstrated by the MRI consistent with the plaintiff’s complaints. The plaintiff was warned to only do light work and the defendant was advised of this, but apparently the light work that he was asked to re-engage in was not light work at all.
57 The plaintiff returned to see Mr Barrett two-and-a-half years later at the referral of Dr Pjesivac, and on 2 September 2009, Mr Barrett again wrote back to Dr Pjesivac, in the following terms:
“He now returns, having continued to work for Dunlop Foam now in the Packing Department this work including considerable bending and lifting of these large mattresses, which could weigh up to 50 kg, this between 2 people from the floor up to bench level and down again. This constant bending and lifting has recently increased his lower back pain over the past 2 or 3 months, associated with some intermittent left leg numbness and pins and needles. These symptoms are somewhat aggravated by prolonged sitting as weIl and after attending your rooms he has been put on light work, followed by currently off work for 2 weeks.
Orthopaedic examination shows a cooperative, tall fellow who was moving fairly slowly and stiffly, his lumbar contours were normal and his lumbar movements are fairly limited, particularly in forward flexion and extension and all seemed to produce lower back pain at the various limits. Straight leg raising is about 70° bilaterally while power, reflexes and sensation in lower limbs lower limbs remain normal and symmetrical.
Because of these increasing symptoms in the past 2 or 3 months, I have arranged for a repeat lumbar spinal MRI to he carried out, to compare with the films of December 2006 and to see if there has been any significant deterioration.”[21]
[21]PCB 34
58 Dr Barrett arranged for a further MRI scan, which was carried out on 16 September 2009. He reported again to Dr Pjesivac in the following terms:
“You will see that there has not been any significant change or deterioration in these films, since the earlier films of December 2006, and I am sure that his increased symptoms are due to the fact that he is needing to bend and lift heavy Dunlop foam Mattresses from the floor up to a bench and then down on to a Pallet. He tells me that these Mattresses can weigh up to fifty kilograms each, and so that means that he is lifting at least twenty-five kilograms on a regular basis.
… .”[22]
[22]PCB 35
59 After Mr Barrett received the findings of the MRI scan, he reported again to Dr Pjesivac on 24 September 2009, inter alia, as follows:
“Careful comparison of these 2 sets of lumbar spinal MRI films, does show some quite mild deterioration over the almost 3 year period, but as the official report states, there is not significant changes between the 2 sets of films.
I consider that your patient’s increased symptoms are due to the heavy lifting activities he is carrying out in the Packing Department of Dunlop Foam, rather than some marked physical deterioration of lumbar spinal physical injuries.
As before, I consider this man is not fit to perform this heavy type of physical work, as his back will inevitably deteriorate markedly if he continues in this manner.
… .”[23]
[23]PCB 36
60 Mr Barrett wrote a detailed medico-legal report which he provided to the plaintiff’s solicitors on or about 18 November 2009. In that report, he noted that when the plaintiff first attended upon him, he was complaining of pain in the lumbar region and low-back pain radiating out to the right buttock region, and pain into the left calf, into the left heel, associated with intermittent pins and needles in the left heel and foot. In that report, Mr Barrett opined, inter alia:
“I consider the lumbar spinal injuries of Mr Cucilovic, are clearly related to the prolonged stooping and heavy lifting, and heavy pushing activities, involved in his work with Dunlop Foam, over this fifteen year period, and his earlier films show no evidence of pre-existing injury or disease.
Diagnosis is that of a left and lateral rupture of the L4-5 lumbar intervertebral disc, intermittently irritating the nearby left nerve roots and producing his intermittent left sciatica.
I consider that Mr Cucilovic would be able to manage genuine light work, provided he was not required to perform bending and heavy lifting, or heavy pushing activities, a situation which has unfortunately continued in his Packing Department work. He is certainly not fit to return to his pre-injury full duties.”[24]
[24]PCB 40
61 Mr Barrett provided a medical report to the plaintiff’s solicitors for the purposes of the referral to the Medical Panel, dated 20 April 2010. After referring to the MRI scan carried out on 19 August 2005 and then the second MRI scan on 19 December 2006, which revealed lumbar disc bulges at L4-5 and at L5-S1, he reported, inter alia, as follows:
“… these are not changes of a degenerative nature, but lower lumbar disc ruptures at the two lower lumbar intervertebral disc levels, clearly following the heavy nature of his work with Dunlop Foam.
In addition, the somewhat advanced condition of his lower lumbar disc injuries, in the later MRI investigation, shows that his lower lumbar disc injuries have worsened, have not healed or repaired in the interim, but have clearly worsened over this period of time.
…
I have come to realise that even the most benign looking lumbar disc bulge, as revealed on the CT scan or the MRI (both being non weight bearing investigations) can represent a very painful disrupted lumbar disc, and the degree of pain produced at that same disc bears no relationship to the size of the disc bulge.
… .”[25]
[25]PCB 46-47
62 Mr Barrett provided a further report on 15 September 2011. In that report, he reported, inter alia, as follows:
“I have examined Mr. Zelijko Cucilovic on 6 separate occasions initially on 12/12/2006 and now most recently on the 14/9/2011, during which time there has been quite marked physical deterioration of his lumbar spinal injuries, ceasing work in September 2009, now remaining off work continuously for 2 years, initially because no light work is available and subsequently his WorkCover payments ceased in May 2010 and as his wife is working, he is not able to receive any alternative pension or disability payment.
On the 14/9/2011 Mr. Zelijko Cucilovic continues to complain of gradually increasing lower back pain and pain radiating into his left lower limb down the thigh, calf as far as the left foot and toes, associated with intermittent numbness and pins and needles into these left toes. His right leg remains pain free.
… .”[26]
[26]PCB 43
63 Mr Barrett went on to provide the following opinion:
“This patient has sustained significant ruptures particularly of the L4-5 lumbar intervertebral disc, producing his ongoing and gradually increasing lower back pain and left sciatica, clearly related to his long standing and heavy physical activities in the course of his work in the packing department of Dunlop Foam, now causing him to be off work continuously for the past 2 years.
…
These symptoms and ongoing and gradually increasing disability is related to his prolonged and heavy physical work in the course of his employment with Dunlop Foam, finally having to cease work continuously over the past 2 years, these symptoms and ongoing disability clearly related to the nature of his work, while earlier radiological features revealed no pre-existing injury or disease in the lumbar spine.
Diagnosis is that of a left and lateral rupture of the L4-5 lumbar intervertebral disc, intermittently irritating the nearby left nerve roots and pushing into the intervertebral foramen, in close relationship to the emerging left L4 and passing L5 and S1 nerve roots.
Mr. Zelijko Cucilovic is clearly quite unfit to return to his pre-injury employment or even light and part time work and has been continuously so for the past 2 years and as previously predicted, this disability continuing and increasing, into the foreseeable future.
I consider it unlikely that operative treatment is likely to significantly alter the symptoms or disability of Mr. Zelijko Cucilovic.
Prognosis remains poor, his symptoms are genuine, physical and gradually increasing in severity and I can not foresee him improving from his current and ongoing condition.”[27]
[27]PCB 44-45
64 The plaintiff saw Mr David Brownbill, neurosurgeon, for medico-legal purposes on 2 February 2010. Dr Brownbill did not disagree with the various opinions provided in a number of reports by Mr Barrett. Mr Brownbill thought that the plaintiff had suffered organic damage in the lower back at work, having regard to his work activities involving lifting, twisting and bending in a repetitive fashion. He opined, inter alia, as follows:
“On the information provided, I consider that on probability this man has suffered organic lower lumbar damage to either musculo ligamentous structures or the L4-5 intervertebral disc (with resulting back pain and radiating left leg pain).
He should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. He would not be capable of returning to his described full pre injury employment (which involved those actions). However from a neurosurgical point of view, he would be capable of continuing work activities avoiding those actions.”[28]
[28]PCB 55
65 The plaintiff also consulted with Mr Richard Pease, orthopaedic surgeon, who saw the plaintiff for medico-legal purposes on 30 November 2009. Mr Pease examined the MRI images taken on 16 September 2009 and the earlier MRI scan of December 2006. He described the disc pathology of the plaintiff as demonstrated in the two MRI scans as “significant disc pathology”.[29] He diagnosed an L4-5 disc pathology with a foraminal prolapse and an annular tear, almost certainly irritating and causing L4 nerve root symptoms on the left side.[30]
[29]PCB 64
[30]PCB 64
66 In a second report, after again examining all the available reports, Mr Pease said:
“However, I suspect that as a consequence of the combination the lumbar spine pathology, confirmed by MRI, his own perceived level of disability, his lack of English and reluctance of employers to take on back injured workers, he will prove to be effectively unemployable.”[31]
[31]PCB 71
67 Associate Professor Richard Bittar, neurosurgeon and spinal surgeon, saw the plaintiff for medico-legal purposes on 12 October 2011 and he provided a report dated 23 December 2011. He thought that the plaintiff suffered from an L4-5 intervertebral disc prolapse which had been significantly contributed to by his employment. He thought that the repetitive heavy lifting that the plaintiff undertook in mid-2005 has been the dominant contributing factor and his workplace activities in 2009 further aggravated his condition. Associate Professor Bittar thought that it was extremely unlikely that the plaintiff would be able to return to the workforce in any manual labouring type capacity, and in his view, he was permanently incapacitated for his pre-injury duties.[32]
[32]PCB 73
68 The defendant had the plaintiff medically examined by Dr Phillip Mutton on three occasions. He first saw the plaintiff and reported on 10 October 2005 and then again on 3 November 2005 and the plaintiff tendered those reports, which I marked as Exhibit B. In the first report from Dr Mutton dated 10 October 2005, he reported, inter alia, as follows:
“What is the nature of the worker’s condition?
Chronic musculoligamentous strain of the lower back. Mr. Cucilovic does have pathology at L3-4 and L4-5. His complaints of low back pain are in the right lower ribs and right loin area. These MRI findings may be consistent with his presentation although he has no left lower limb symptoms or left sided symptoms.
Was employment a significant contributing factor to the injury? How?
By the description provided by Mr. Cucilovic, his job is repetitive and requires repetitive back flexion. Under these circumstances a chronic musculoligamentous strain and/or development of disc pathology may well have occurred in the course of his employment and therefore employment appears to be a significant contributing factor. There are no non-vocational factors that I can identify.”[33]
[33]DCB 9
69 In a further report dated 8 January 2007 which the defendant tendered,[34] Dr Mutton reported, inter alia, as follows:
“I do not believe that Mr. Cucilovic has a current injury but suffers vague low back pain on account of a combination of constitutional disc changes in addition to musculoligamentous strain. Based on presentation, he had recovered from his condition. There was never a specific injury in the course of his employment but rather general soreness throughout the course of the working day. I would suggest that employment is no longer a contributing factor to the claimant’s injury or incapacity for work. The limitations described above are largely to prevent further injury due to the findings on MRI.”[35]
[34]DCB 15
[35]DCB 19
70 The defendant relies heavily upon the opinion of Dr Mutton, who has not seen the plaintiff for a number of years. I do not accept, in the circumstances of this case, the opinion of Dr Mutton. I prefer the evidence provided by the plaintiff’s treating orthopaedic surgeon, Mr Brian Barrett, who has seen the plaintiff on many occasions since 2005 and reported to his general practitioner. I accept his evidence that there is clear evidence demonstrated on MRI imaging that the plaintiff suffers from a low-back injury at L4-L5 and L5-S1 level which produces sciatic pain. I do not accept that the plaintiff’s pain level could be described as “vague low-back pain”, nor do I accept that it is caused on account of a combination of “constitutional disc changes”, nor do I accept that there was “never a specific injury in the course of his employment but rather a general soreness throughout the course of the working day”. These were the opinions of Dr Mutton. Mr Barrett also has support from other specialists who have seen the plaintiff for medico legal purposes, namely Mr Brownbill and Mr Pease and Mr Bittar.
71 The defendant also had the plaintiff medically examined by Mr J Kendall Francis, general surgeon, who reported on 16 March 2010.[36] He thought that any work-related aggravation of degenerative condition had ceased and the plaintiff’s employment was not materially contributing to his current condition. He said:
“My opinion was that although the worker may have originally reported his symptoms occurring in the course of his work so many years ago, he had been able to continue modified duties up until the time he was informed that these duties were no longer available. My impression was that, although the worker’s symptoms may have originally presented in the course of his work, the ongoing continuance of these symptoms was no longer related to his original work-related presentation but was related to the underlying ongoing degenerative spondylosis occurring in his lumbar spine.”[37]
[36]DCB 34
[37]DCB 34
72 I do not accept the opinion of Mr J Kendall Francis in this case. I prefer the evidence provided over a long period of time by the plaintiff’s treating orthopaedic surgeon, Mr Brian Barrett. I have taken the view that the medical evidence provided by Mr Barrett shows that there was an injury to the plaintiff’s lower back in about 2005 which deteriorated and was aggravated by heavy work that he was continuing to carry out in 2009. It is that aggravation from which the evidence shows the plaintiff continues to suffer impairment and pain and suffering consequences of which he complains on an uncontested basis.
73 The defendant relies upon a very lengthy report of an occupational therapist, Joanne Bryant, from a company CoWork Pty Ltd, dated 22 September 2011. That report recommends that the plaintiff would be suitable to find employment as an electronic assembler or a packer or a courier. I do not accept these recommendations. Accepting as I do the opinions of Mr Barrett, I find that the plaintiff is presently unfit for his pre-injury employment and he is presently unfit for any work that requires him to be involved in lifting, bending or twisting, or sitting for lengthy periods of time. The plaintiff speaks limited English, has limited education and his work is restricted to labouring type duties. I have formed the view on all of the evidence that the plaintiff’s injuries are permanent and he is presently unfit for any form of employment, and that is likely to be the case, having regard to his low-back injury, for the foreseeable future.
74 Mr Ryan criticised the plaintiff for failing to provide any medical reports from Dr Pjesivac and Dr Quek. He also criticised the lack of any report from any treating physiotherapist. He asked me to draw an inference adverse to the plaintiff’s case applying Jones v Dunkel principles. I decline to do so in the circumstances of this case. The plaintiff’s medical care was essentially placed into the hands of Dr Barrett. He reported frequently. He was not required for cross examination and so his evidence is also unchallenged. Further, the medical notes of both treating general practitioners were tendered in evidence and they do not highlight any inconsistencies in the plaintiff’s case. In those circumstances it is difficult to see what further facts could have been added by further reports from the treating general practitioners especially where the plaintiff’s credit is not in issue.
75 At the end of the day in this case, the plaintiff’s evidence remains unchallenged and I accept it. In his affidavits, the plaintiff refers to the pain and suffering consequences of which he presently suffers. In summary form his affidavits detail his current medication regime of Tramal and Mobic. The affidavits give evidence of the fact the plaintiff suffers from constant low back pain radiating into the left leg and left foot. The plaintiff describes his pain increasing upon movements involving lifting or bending or from having to sit for long periods. He cannot drive a car for other than short trips and his sleep is disturbed frequently. He is restricted in assisting with basic household chores and his social life is affected. He no longer goes fishing and he no longer enjoys social soccer. I accept his evidence as to his continued impairment and the pain and suffering consequences from which he suffers in consequences of his injury in the course of his employment with the defendant.
76 In my view the evidence shows, the plaintiff probably suffered a low-back injury during the course of his employment with the defendant in approximately 2005 which was aggravated in 2009 and he presently suffers pain and suffering consequences and impairment consequent upon that aggravation. The plaintiff’s pain and suffering consequences as detailed in his affidavit material, in my view, can be regarded as “very considerable” and certainly more than “significant” or “marked”.
77 The plaintiff, having proved his case on the balance of probabilities, succeeds on his application. The plaintiff will have leave to commence a proceeding claiming damages for pain and suffering and loss of earnings and loss of earning capacity.
78 I will hear the parties on the question of costs.
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