Culhane v VWA
[2021] VCC 1731
•10 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-00425
| MATTHEW JOHN CULHANE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | Ginnane | |
WHERE HELD: | Melbourne via Zoom | |
DATE OF HEARING: | 20 September 2021 | |
DATE OF JUDGMENT: | 10 November 2021 | |
CASE MAY BE CITED AS: | Culhane v VWA | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1731 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords: Serious Injury - spine - pain & suffering - range
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Ellis Management Services Pty Ltd v Taylor [2013] VSCA; Sutton v Laminex Group PtyLtd [2011] 31 VR 100; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Leave Granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh with Mr P Haddad | LHD Lawyers |
| For the Defendant | Mr D McWilliams | Minter Ellison |
HIS HONOUR:
The nature of the claim
1The plaintiff seeks leave to pursue damages for pain and suffering only. He relies on paragraphs (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”).
2At the hearing of the application the plaintiff was represented by Mr Walsh of leading counsel together with Mr Haddad of counsel. The defendant was represented by Mr McWilliams of counsel.
3Matters such as the occurrence of the work injury and the fact that it is compensable are not contested. Counsel for the parties agreed that the principal issue before the Court is that of “range”. In other words, and although there were some additional but ultimately largely peripheral issues, the question is whether the consequences of injury are sufficient to satisfy the statutory test for serious injury.
4The part of the body said to be impaired for the purposes of paragraph (a) is the plaintiff’s spine with particular attention directed to pain and restriction to the lumbar spine.
5The relevant definition of “serious injury” contained in s134AB(37) of the Act reads:
“‘Serious injury’ means –
Permanent serious impairment or loss of a body function ….”
Legal principles
6To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of or due to the nature of his employment with the employer on or after 24 October 1999;[1]
(b) “the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
(c) the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[3]
[1] Section 134AB(1) of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622.
[2] Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33 at [33].
[3] Section 134AB(38)(b) and (c) of the Act.
7The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
8In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
9Furthermore, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” 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”;[4]
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[5]
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[6]
[4] Section 134AB(38)(h) of the Act.
[5] Section 134AB(38)(j) of the Act.
[6]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at [23]- [26].
10The question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[7]
[7]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at [67].
The documentary evidence
11The plaintiff relied on the following evidence in support of his application for a serious injury certificate:
· Form A dated 24 September 2020;[8]
[8] Exhibit P1, Plaintiff’s Court Book (“PCB”) 9-16.
· Affidavit of the Plaintiff dated 8 September 2021[9] and Further Affidavit of Matthew Culhane dated 14 September 2021;[10]
[9] Exhibit P2, PCB 17-24.
[10] Exhibit P2, PCB 54-58.
· Mr Marcus Rawlings dated 5 April 2016;[11]
[11] Exhibit P3, PCB 30-33.
· Mr David Oehme (Operation Record) dated 20 December 2018;[12]
[12] Exhibit P4, PCB 34-35.
· Mr David Oehme (to Dr Ubhi) dated 31 October 2019;[13]
[13] Exhibit P5, PCB 36-36.
· Eastern Health Maroondah Hospital Emergency Department dated 9 December 2018;[14]
[14] Exhibit P6, PCB 37-38.
· Epworth Patient Discharge Summary dated 21 December 2018;[15]
[15] Exhibit P7, PCB 39-40.
· Medico-Legal Report of Mr Thomas Kossmann dated 27 July 2021;[16]
[16] Exhibit P8, PCB 41-52.
· MRI Lumbar Spine dated 15 October 2019;[17]
[17] Exhibit P9, PCB 53.
· Workers Injury Claim Form dated 23 December 2013;[18]
[18] Exhibit P10, PCB 59-60.
· CGU Notice Accepting Claim dated 17 January 2014;[19]
[19] Exhibit P11, PCB 61-65.
· CGU Notice Approving Surgery Request dated 23 April 2014;[20]
· Worker's Claim for Impairment Benefits Form dated 28 March 2019;[21]
· CGU Notice of Impairment Benefit Liability, Assessment and Entitlement dated 4 May 2020;[22]
· Mr Clive Jones report dated 8 April 2014;[23]
· CT Lumbar Spine dated 22 October 2013,[24] MRI Lumbar Spine dated 27 December 2013;[25] and MRI Lumbar Spine dated 12 December 2018;[26]
· Mr David Oehme (to CGU Workers Compensation) dated 25 February 2019;[27]
· MRI Lumbar Spine dated 1 February 2016;[28]
· Professor Richard Bittar (to Dr Ubhi) dated 9 August 2016;[29]
· Dr Ali Kian Mehr (to Dr Ubhi) dated 23 August 2016;[30] and
· Records of Gippsland Physiotherapy Group Cowes dated 20 September 2021.[31]
[20] Exhibit P12, PCB 66-67.
[21] Exhibit P13, PCB 68-69.
[22] Exhibit P14, PCB 70-78.
[23] Exhibit P15, PCB 79-84.
[24] Exhibit P16, PCB 85.
[25] Exhibit P16, PCB 86.
[26] Exhibit P16, PCB 87-88.
[27] Exhibit P17, PCB 89.
[28] Exhibit P18, PCB 91.
[29] Exhibit P19, PCB 92-93.
[30] Exhibit P20, PCB 94-96.
[31] Exhibit P21, PCB 97-99.
12The defendant relied on the following in opposing the grant of a serious injury certificate:
· Associate Professor Anthony Buzzard report dated 29 April 2020;[32]
· Dr Joseph Slesenger report dated 27 April 2021;[33]
· Associate Professor Peter Doherty report dated 28 April 2021;[34]
· Marcus Rawlings report dated 21 February 2019;[35]
· CoWork Vocational Assessment Report dated 28 May 2021;[36]
· Clinical records of Cowes Medical Centre;[37] and
· Clinical records of Balance Health Phillip Island.[38]
[32] Exhibit D1, Defendant’s Court Book (“DCB”) 3-9.
[33] Exhibit D2, DCB 10-23.
[34] Exhibit D3, DCB 24-32.
[35] Exhibit D4, DCB 33-33.
[36] Exhibit D5, DCB 34-92.
[37] Exhibit D6, DCB 93-94.
[38] Exhibit D7, DCB 95-99.
13In reaching my conclusions I have had regard to all of the exhibits filed on behalf of the parties, the cross-examination and re-examination of the plaintiff and the opening and final addresses of counsel.
Prior history
14The plaintiff has had no shortage of injuries. He suffered a broken left arm when he was 16 years old. He also had dislocation of his shoulders. He broke his right and left ankles when he was aged 20 or 21. He suffered stress fractures to his knees which was linked to running too much in his twenties. He broke his nose when he was 15. He had broken fingers whilst playing football. The plaintiff explained to doctors that he had a pre-existing lumbar problem in 2008 when walking down some stairs and felt a twinge in his lower back. He underwent a clinical examination and x-rays. He was diagnosed with musculoskeletal back pain. He was treated with Diazepam, Tramadol and Panadeine Forte, and discharged home.
The compensable event
15The plaintiff was injured during the course of his employment on 21 October 2013, when he was repairing a condenser water pump. He was working in a plant room. He was forcefully pushing and pulling whilst performing these tasks, using a wrench and, whilst in the process, he developed immediate and severe lower back pain with pain radiating into his right leg. He reported the incident.
Subsequent to injury
16Following his injury, the plaintiff was off work for a period of time before returning to work with the defendant performing office duties. In early 2015 he commenced his own business which he continued with until late 2018.
17The plaintiff underwent surgery in December 2018 and it seems he was off work for some time.
18The plaintiff returned to work in October 2019 with a Melbourne refrigeration company as a service manager for a period of about six weeks. He then secured a job as a project manager with B&G Air Conditioning in Carrum Downs. It was a full time position and he worked up to 60 hours per week. The plaintiff said in his affidavit that his role was predominantly in the office.
19The plaintiff said[39] that since March this year, he has been working full time for BSA Advanced Property Solutions, a construction company, as a project manager in the mechanical services division. He can be required to work up to 60 hours per week, working two days from home, and three days in the office. He does site visits, liaises with customers, does estimating and quoting and project management work. The office is located in Dingley. The plaintiff resides in Cowes.
[39] Transcript (“T”) 47, Line (“L”)15-16.
The course of treatment following 2013 injury
20Following injury, the plaintiff was driven to a doctor in Epping, who arranged a CT scan. His pain did not dissipate and so he saw his general practitioner, Dr Greg Wilkes, at the Maroondah Super Clinic as well as a myotherapist, Mr Steven Hunt. He was referred to an orthopaedic specialist, Mr David de la Harpe, and he also obtained a medical opinion from Mr Brazenor on referral from Dr Wilkes. He was seen by Mr Brazenor on 13 December 2013, who recommended rest, weight loss and walking as well as avoiding bending and lifting.
21X-ray and MRI were performed on 27 December 2013.
22The plaintiff saw Mr de la Harpe on 10 February 2014. He did not recommend surgery at the time but rather conservative treatment.[40]
[40] Exhibit P8, PCB 41 quoting the 10 February 2014 report of Dr del la Harpe.
23Mr Brazenor also referred the plaintiff to a physiotherapist, Mr Marcus Rawlings.
24The plaintiff commenced seeing Mr Rawlings on 25 March 2014 and continued under his care for about a further 12 to 14 months.
25The plaintiff did not obtain any resolution of pain over the following 18 to 24 months. He described his pain as constant with flare-ups.
26He was referred to Professor Bittar, neurosurgeon, by Dr Wilkes on 15 March 2016 and was reviewed on 9 August 2016. Professor Bittar documented that the plaintiff was suffering from an L5-S1 disc prolapse, which was contacting but not compressing the S1 nerve root. He recommended a standing MRI of the lumbosacral spine and also that the plaintiff undertake a pain management course.
27Dr Mehr is a Rehabilitation Specialist who reviewed the plaintiff. In report to Dr Ubhi of the Lilydale Medical Centre dated 23 August 2016,[41] Dr Mehr wrote that he believed the plaintiff was suffering from chronic axial lumbar spine pain which he thought could be either discogenic, facetogenic or muscular. The plaintiff returned to Dr Mehr on 12 October 2016, who recommended a multidisciplinary pain management program.
[41] Exhibit P20, PCB 94.
28The plaintiff said his back condition was not improving but getting worse. He was now becoming despondent and depressed.
29The plaintiff attended the Emergency Department of the Maroondah Hospital on 30 November 2016. He was complaining of intermittent sharp pain to the left side of his chest for the previous five weeks. He was investigated and diagnosed with a classical description of precordial catch syndrome plus non-specific lethargy. A viral syndrome could not be explained and he was discharged home.
30The plaintiff continued to undergo treatment with Mr Rawlings. However, his symptoms persisted. Mr Rawlings referred him to a sports and exercise physician at the Metro Pain Group.
31The plaintiff attended the Emergency Department of Maroondah Hospital on 9 December 2018 complaining of lower back pain. He was diagnosed with acute on chronic lower back pain with sciatica. He was treated conservatively.
32An MRI of the lumbar was performed on 12 December 2018.[42] The radiologist documented the following:
“Compared to previous MRI lumbar spine dated 1 February 2016: Interval development of sequestrated disc material at the right L5/S1 lateral recess with stable posterior central disc protrusion effacing the right lateral recess and impinging on the right descending S1 nerve root. Specialist referral recommended.”[43]
[42] Exhibit P16, PCB 87.
[43]Exhibit P16, PCB 88.
33The plaintiff had similar symptoms on a subsequent admission to the Emergency Department of Maroondah Hospital on 13 December 2018. He was treated with oral analgesia.
34The plaintiff was treated by Mr Oehme, who arranged an epidural and advised the plaintiff that if the injection was not successful, he would need surgery. The epidural was not successful.
35The plaintiff underwent surgery by Mr Oehme at the Epworth Private Hospital on 20 December 2018.[44] A right L5-S1 hemilaminectomy was performed. A microdiscectomy procedure was performed at right L5-S1 decompressing the nerve root. The plaintiff said Mr Oehme told him that the surgery was due to the LS-SI disc prolapse that he had sustained on 21 October 2013.
[44]An operation report from Mr Oehme contains a preoperative diagnosis: “right L5/S1 disc prolapse” and the operation performed was a right L5-S1 microdiscectomy and rhizolysis.
36The plaintiff deposed that he was off work following surgery for approximately 12 to 18 months.[45] Following the surgery, he noticed that his sciatica improved.
[45] Exhibit P2, PCB 21.
37Mr Oehme reviewed the plaintiff via a telehealth consultation on 17 January 2019. He documented that the plaintiff’s severe right sciatica had improved. He was still complaining about general aches and pains, including back pain and some paraesthesia in the right leg. However, Mr Oehme was happy with his progress.
38A report from Mr Rawlings dated 21 February 2019,[46] about two months after the plaintiff’s surgery, described a significant improvement in the plaintiff including an absence of a reporting of pain or problems. The consultation with Mr Rawlings took place over the telephone because the plaintiff was about to embark on a trip around Tasmania and was not available to present personally.
[46] Exhibit D3, DCB 24.
39The plaintiff had an MRI of the lumbar spine on 15 October 2019.[47] The radiologist described disc space narrowing with loss of T2 signal at the L4-5 level and particularly at the L5-S1 level. The L4-5 disc was protruding and, at this level, there was a right foraminal annular fissure. The L5-S1 disc was narrowed. The radiologist could not find the cause for the plaintiff’s complaint of left sided back pain.
[47] Exhibit P9, PCB 53.
40The plaintiff returned to Mr Oehme on 31 October 2019, who documented that the plaintiff was complaining about “grumbling back pain”[48] of 1/10. He observed that the plaintiff’s L4-5 and L5-S1 discs showed degeneration. He thought that the plaintiff was “doing pretty well”[49] and, although he had mild paraesthesia in his right foot, it was not troubling him.
[48] Exhibit P5, PCB 36.
[49] Ibid.
41The plaintiff last saw Mr Oehme in November 2019, at which time he was told that, provided his pain was bearable, he should continue with his activities. Mr Oehme also told the plaintiff that it was likely his condition will require a fusion sometime in the future.
42The plaintiff was seen by Ms Kirsty Greig, a vocational assessor and labour market analyst, on behalf of the defendant on 28 May 2021.
Clive Jones, orthopaedic surgeon, report 8 April 2014
43Mr Jones reported that the plaintiff’s medical condition was one of a relatively severe low backache, without sciatica, associated with a central protrusion of the lumbosacral disc. As far back as 2014, Mr Jones proposed surgery to excise the disc and fuse the disc space. He wrote that the surgery may alleviate the plaintiff’s pain to a degree, but it would be unlikely to make it disappear entirely.
Marcus Rawlings
44I have already mentioned that Mr Rawlings referred the plaintiff for an MRI scan of the lumbar spine, that was performed on 1 February 2016.[50] The radiologist described that the L5-S1 was narrowed and protruding with a midline annular fissure. The disc protrusion was contacting the thecal sac but was not causing an S1 radicular compression or displacement. The L5 nerve roots were clear.
[50] Exhibit P18, PCB 91.
45A report dated 5 April 2016 from Mr Rawlings is largely historical and details the plaintiff’s history since presenting at the Physica Spinal and Physiotherapy Clinic on 25 March 2014 with marked bilateral lumbar symptoms. Mr Rawlings wrote that the plaintiff’s symptoms were waking him four to five times per night.
Thomas Kossmann report
46Mr Kossmann, in a report dated 27 July 2021, noted that the plaintiff continues to suffer from pain in his lumbar spine, which is radiating into his left leg and abdominal wall. The plaintiff complained about loss of feeling of the fifth toe on the right side. He has difficulty sleeping. He has difficulty putting on his socks and shoes and cutting his toenails. He said he cannot sit or stand for too long. He has good and bad days.
47The plaintiff told Mr Kossmann that the injuries have had a profound impact on his social, domestic and recreational activities.
48The plaintiff told Mr Kossmann that he goes for walks. He undertakes swimming and self-exercises. He shares the household chores with his wife. He does a lot of the cooking. Although he tries to work in the garden, he has difficulties in doing so. He had to give up fishing and sold his boat.
49Mr Kossmann thought the plaintiff’s lumbar spine prognosis was poor. He said the plaintiff will continue to suffer from pain, for which he will require further treatment with pain medication and anti-inflammatories.
50Mr Kossmann recommended that the plaintiff continue with self-exercises; however, this would need to be monitored to avoid any aggravation. Mr Kossmann opined that in the long term the plaintiff will develop further degenerative changes in his lumbar spine and based on his symptoms, will require further treatment. He thought there was a small to moderate risk that he may have to undergo further surgery and potentially an anterior fusion of his lumbar spine.
51I observe that Mr Kossmann wrote that the plaintiff has been unable to return to his pre-injury work as a refrigeration mechanic. He reported that the plaintiff is working on modified/light duties on a full time basis. There is no evidence that the plaintiff is working modified duties with his current employer.
52Mr Kossmann wrote that the plaintiff is at risk that he may become partially or even totally incapacitated should he suffer from increasing pain issues or even neurology as a result of his work-related lumbar spinal injuries from 2013, although he was unable to anticipate a timeframe for such a dire prediction. He recommended that the plaintiff not engage in any physical work, or work where he has to walk long distances, on uneven ground, upstairs and downstairs, kneel, squat and carry heavy items weighing more than 5 kilograms.
53Associate Professor Doherty is a psychiatrist on whom the plaintiff attended for medico-legal purposes at the defendant’s request. His report, dated 28 April 2021, described that following surgery and after the plaintiff sold his business, he travelled with his wife and three children around Australia for a year, describing to Associate Professor Doherty that “it was the best thing he ever did.”[51] He said that his marriage was “really good” and that “he still has a high energy level.”[52] He said, “his driving is going well. He told me he drove some eight hundred to one thousand kilometres last week” but that nonetheless, “Sometimes it ‘feels crap’. He told me he chooses where he lives, and the problem with driving is discomfort, and he occasionally has to stop to stretch himself.” [53]
[51]Exhibit D3, DCB 26.
[52]Exhibit D3, DCB 27.
[53] Exhibit D3, DCB 27.
54Although there are references in several reports of the plaintiff having suffered with his sleep as a consequence of the injury, it was noted by the CoWork vocational assessor, Ms Greig, that the plaintiff did not think he had ever been a big sleeper.[54] This assessment may be compared with Associate Professor Doherty who took an account from the plaintiff that, in relation to:
“falling off to sleep, he said it is very hard and it takes thirty to forty-minutes because of difficulty becoming comfortable and he has discomfort and has difficulty turning off his head. He worries about the pain and getting out of bed, as he is worse in the morning. He told me he cannot lift his legs in the morning, and it is the worst time of the day.”[55]
[54] Exhibit D5, DCB 43.
[55]Exhibit D3, DCB 27.
55As to his quality of sleep, Associate Professor Doherty recorded that, “he told me he tosses and turns.[56]” However, he did not record, that the plaintiff wakes during the night due to pain.
[56] Ibid.
56The plaintiff told Associate Professor Doherty that “he has a full capacity for work right now”.[57]
[57] Exhibit D3, DCB 29.
57Associate Professor Doherty recorded that the plaintiff explained how his interests and hobbies have changed. Whereas he used to fish, and once had a boat, that is no longer the case, and also, he no longer plays football which he had played “religiously” in the past. He described “all sorts of sports but cannot do other sports now. He told me there are no outdoor activities. He told me he cannot sit on the ground and cannot go to picnics.”[58] He said he is not as outgoing socially.
[58] Exhibit D3, DCB 27.
58The plaintiff self-assessed his level of pain as 3/4 out of 10 but with flare-ups it can get up to 8/10.[59] In his affidavit, the plaintiff described pain of the order of 6 out of 10[60] or 6/7 out of 10 most days.[61]
[59] Ibid.
[60] Exhibit P2, PCB 22.
[61] Exhibit P2, PCB 55.
59The plaintiff told Associate Professor Doherty that he occasionally takes Panadol.[62] He said of his general health, that “he only goes to a doctor when he is dying”.[63]
[62] Exhibit D3, DCB 28.
[63] Ibid.
60The plaintiff said he has not been to a general practitioner since taking up residence in Cowes. However, he has attended a physiotherapist at Balance Health Phillip Island[64] three times in the last six months, because of an injury he suffered to his right shoulder as a result of wrestling with his five year old son.[65]
[64] Exhibit D7, DCB 95.
[65] Exhibit D7, DCB 96.
Dr Slesenger
61Dr Slesenger is an occupational physician who prepared a report on behalf of the defendant dated 27 April 2021.[66] The plaintiff told Dr Slesenger that his surgery was partially successful in relieving his symptoms, particularly those associated with his right leg. Nevertheless, he told Dr Slesenger that he suffers with residual lower back pain that is moderate and occasionally severe. There is associated right leg pain, possible weakness and numbness in the right little toe. The plaintiff explained that he manages his symptoms with changes to his posture or maintaining activity through walking, but he is no longer attending his general practitioner, pain specialist or neurosurgeon. He said that he is also avoiding medication and is reluctant to take any.[67]
[66] Exhibit D2 DCB 10.
[67] Exhibit D2, DCB 13.
62Dr Slesenger reported the plaintiff’s current functional capacity to sit, stand and walk as between 30 and 45 minutes. The plaintiff told Dr Slesenger that he has difficulty putting on his shoes and socks in the morning, and he experienced a tightness in his back on waking of a morning.[68] These accounts are consistent with the report by Associate Professor Doherty.
[68] Ibid.
63The plaintiff told Dr Slesenger that he was no longer attending Dr Wilkes for review. He had attended a myotherapist prior to his surgery but not any longer, and he no longer sees Mr Oehme.[69]
[69] Ibid.
64Dr Slesenger reported that the plaintiff’s wife works in a part time customer service role. The plaintiff said he assists with cooking, light gardening and light cleaning tasks. His gardening duties aggravate his symptoms. His wife performs other duties. He said he struggles to provide childcare, and experienced particular difficulty lifting his younger children during their early years.
65The plaintiff told Dr Slesenger that he used to enjoy football, fishing, basketball and golf. He drives an automatic car for up to 40 minutes without a break (he travels 80 minutes to work and takes a break mid-journey).
66He recounted to Dr Slesenger that he had travelled for about six months with his family in 2019.
67Dr Slesenger recounted that the plaintiff had recently secured employment with BSA Allstaff on a full time basis (working three days a week in the office and two days a week from home). The job demands are sedentary and he has been provided with a sit/stand desk at his home and workplace. The job demands occasionally require him to perform site inspections to which he must travel by car.[70]
[70] Exhibit D2, DCB 14.
68Dr Slesenger was limited in his physical examination of the plaintiff because of the plaintiff’s attire but he made a number of observations. The plaintiff’s weight was 96 kilograms. He was able to climb onto his tiptoes.[71] He was able to climb onto his heels. He was able to perform a 1/3 squat. He walked with a normal gait.
[71] Exhibit D2, DCB 15.
69Dr Slesenger related that the lumbosacral spine results of examination were those of an incisional scar measuring 4 centimetres. On palpation there was tenderness over the lumbosacral junction and the paraspinal musculature. Dr Slesenger recorded the following range of movements:
· Flexion: 90 degrees.
· Extension: 20 degrees.
· Right rotation: 70 degrees.
· Left rotation: 70 degrees.
· Right lateral tilting: 20 degrees.
Left lateral tilting: 20 degrees.
· Calf circumference:
§Right: 40 cm.
§Left: 40 cm.
Lower limb neurological examination:
· Power:
§Right leg: reduced to 3/5, non-collapsing.
§Left leg: normal.
· Sensation: normal bilaterally.
· Reflexes:
§Ankle reflexes:
-Right: dull.
-Left: normal.
§Knee reflexes: normal bilaterally.
§Plantar reflexes: down going bilaterally.
· Tests: straight leg raise test:
§Right (supine): 45-60 degrees.
§Left (supine): 70 degrees.[72]
[72] Exhibit D2, DCB 15-16.
70Dr Slesenger reviewed accompanying documentation that included Maroondah Hospital Emergency records dated 9 December 2018 confirming the plaintiff’s attendance with chronic back pain commencing in 2013 following a work-related injury, and noting that he had trialled conservative management, including physiotherapy and had been reluctant to use medication.[73]He had been seen by multiple neurosurgeons who recommended surgery, but he preferred non-operative approaches. His symptoms had been well-controlled over the previous eight months and he had been travelling around Australia in a van. He had acute worsening of his back pain. He was diagnosed with “acute on chronic lower back pain”.[74]
[73] Exhibit D2, DCB 16.
[74] Exhibit D2, DCB 17.
Review of radiology and films
71Dr Slesenger reported that the plaintiff has been the subject of considerable radiology and imaging consisting of:
· Full spinal series erect by Dr Lynette Etzine dated 31 August 2010 that revealed:
“Cervical spine: loss of the normal cervical lordosis. No significant cervical vertebral body or disc space abnormality. Neuricentral, posterior facet and atlanto-axial joints normal in appearance.
Dorsal spine: no significant dorsal vertebral body abnormality. Alignment normal in the lateral plane. Pedicles intact.
Lumbosacral spine/pelvis: no significant lumbar vertebral body or disc space abnormality.
Normal alignment without spondylolysis or spondylolisthesis. Posterior facet joints, sacrum and sacroiliac joints normal in appearance. No pelvic abnormality; both hip joints satisfactorily enlocated.”[75]
[75] Exhibit D2, DCB 17.
· CT scan of lumbosacral spine by Dr Wayne Lemish dated 22 October 2013 that identified:
“The lumbar disc spaces maintain normal height. There is minor posterior disc bulge particularly at L5/S1. No focal disc protrusion or neural impingement is seen. The spinal canal and exit foramina appear adequate. The facet joints are normal.”[76]
[76] Ibid.
· MRI scan of lumbar spine by Dr Mark Percy dated 1 February 2016 who reported:
“History:? L5/S1 disc prolapse? left radicular symptoms. ? disc degeneration ?osteophytes.
Comment: the L5/S1 disc is narrowed and protruding with a midline annular fissure. The disc protrusion contacts the thecal sac but does not cause S1 radicular compression or displacement.
The L5 nerve roots are clear.”[77]
· MRI scan of lumbar spine by Dr Swan Yeong dated 12 December 2018 who commented:
“Clinical Notes:? L5/S1 disc prolapse. Right lateral leg radiculopathy.
Impression: compared to previous MR lumbar spine dated 1 February 2016: Interval development of sequestrated disc material at the right L5/S1 lateral recess with stable posterior central disc protrusion effacing the right lateral recess and impinging on the right descending S1 nerve root. Specialist referral recommended.”[78]
· MRI scan of lumbar spine with and without contrast by Dr Mark Percy 15 October 2019 who wrote:
“History: previous right L5/S1 microdiscectomy 20 December 2018. Left-sided back pain for investigation.
Results: no previous MR has been reviewed. Today’s MR demonstrates disc space narrowing with loss of T2 signal at L4/L5 and particularly at L5/S1. The vertebral alignment is normal. The spinal canal at the thoracolumbar junction is capacious. No pars defect is seen. The marrow signal is normal on T1 weighting. No compressive disc protrusion is seen from T12 to L4. The L4/L5 disc is protruding. There is a right foraminal annular fissure as previously shown. No L5 nerve root impingement is seen. The L5/S1 disc is narrowed, A right hemilaminectomy is noted. No recurrent disc protrusion or extrusion is seen. Enhancing perineural epidural tissue is noted, but a complication of the previous surgery is not seen. The left L5 and S1 nerve roots are clear.
Comment: a cause for the patient’s left-sided back pain is not seen. Complication of previous surgery is not shown. Surgical correlation is advised.”[79]
[77] Exhibit D2, DCB 18.
[78] Ibid.
[79] Ibid.
72Dr Slesenger offered the following diagnosis:
· Lumbar spine
§Mechanical injury to the lumbar spine.
§Aggravation of degenerative disease for which Mr Culhane underwent a right L5-S1 microdiscectomy and rhizolysis on 20 December 2018.
§Acute on chronic pain with associated right leg radiating features.
· Psychological impairment although outside his area of expertise.[80]
[80] Exhibit D2, DCB 22.
73Dr Slesenger considered that the plaintiff’s prognosis is guarded given the length of his impairment and disability and the comprehensive nature of the treatment received. He anticipated that the plaintiff is likely to suffer with residual lumbar spinal impairment into the foreseeable future. He recommended that the plaintiff remain at work with restrictions, namely:
· No push, pull, carry or lift over 10 kilograms on an occasional basis and 5 kilograms on a repetitive basis.
· Avoid prolong static postures.
· Avoid exposure to whole body vibration.[81]
[81] Ibid.
Report of Professor Anthony Buzzard dated 29 April 2020
74Professor Buzzard is an experienced general surgeon with expertise in lower limbs, the spine, and upper limbs. He wrote a report on examination of the plaintiff for the benefit of the defendant.[82] In it, he recounted that the plaintiff’s complaints include pain and tightness in the low back. His pain wakes him at night. He has a sensation in the lateral aspect of the right lower leg and outer aspect of the right foot involving the right little toe that he has had since December 2018.
[82] Exhibit D1, DCB 3.
75Professor Buzzard wrote that the plaintiff had played football up to the time of the back injury but has not since. He used to go fishing, using his boat twice a week up to the date of the back injury. He has attempted to fish on about five occasions since the back injury but he could not do so enjoyably. He said that up to the time of the back injury he used to seasonally and intermittently go motorbike riding but has not since injury. He played golf once every two to three weeks up to the time of the back injury but since the back injury has played golf on about four occasions. He said he played basketball about 10 times a year up to the time of the back injury but has not played since.[83]
[83] Exhibit D1 DCB 6.
76The plaintiff told Professor Buzzard that he can dress himself, wash himself, feed himself and toilet.[84]
[84] Ibid.
77Professor Buzzard found that on measurement movement of the lumbosacral spine by way of forward flexion was 80 degrees. All other movements were full, though he did note pain at the extremes of extension of the plaintiff’s back. No abnormalities were noted in the plaintiff’s arms. Both legs were equal in length and in muscular development by way of measurement. There was markedly decreased right ankle jerk. There was diminished sensation in the lateral aspect of the right foot and right little toe.[85]
[85] Exhibit D1, DCB 6-7.
78Professor Buzzard wrote that the plaintiff had suffered an injury to his back in October 2013 for which he was initially treated conservatively, but subsequently he had operative treatment because of an acute episode involving the right leg. The operative treatment had been largely successful. Professor Buzzard thinks it is unlikely that the plaintiff will require fusion surgery.
79As to future treatment, Professor Buzzard thought it would be reasonable for the plaintiff to have minor oral analgesic and like medications for symptomatic pain.
80As to his employment capacity, he assessed the plaintiff to have a light work back.
81So far as the plaintiff’s social and domestic situation is concerned, Professor Buzzard considered it reasonable to accept that the plaintiff can no longer enjoy his pre-injury activities.[86]
[86] Exhibit D1, DCB 7.
Plaintiff’s first affidavit[87] - pain and suffering consequences of lower back injury
[87] Exhibit P2, PCB 17.
82The plaintiff said he experienced difficulty performing his then current employment with B&G Air-conditioning as a Production Manager in Carrum Downs as he was limited in the amount of time he can sit or stand, and that he was required to stand and sit throughout the course of the day in order to relieve pain.
83The plaintiff said he suffers almost constant pain in his lower back which he rates rate at about 6/10 on a regular day, but on a bad day it is 9/10. He experiences an episode of bad pain at least once per week. Pain is relieved by walking. Although he used to get relief by lying down, that is not so much the case anymore.
84He has problems dressing. He has problems putting on his shoes and socks. He has problems going to the toilet. He has problems voiding. I note Professor Buzzard reported that on direct question the plaintiff said he was able to wash, feed and toilet himself. The plaintiff deposed to numbness in his right little toe.
85He used to enjoy fishing. Since his back injury he has tried fishing and boating on a few occasions but he struggles due to his back pain. He said he sold his boat because of his back problems. He said he has not returned to his sporting pursuits. He tried basketball on a few occasions but suffered afterwards.
86He said he has difficulty playing with his children. He is limited by pain in the range of movement in his back. He has problems picking up his children and playing with them as he expected he would be able to do as a father. He feels despondent because he feels he is rejecting them due to his physical restrictions.
87At times, he has problems going up or down stairs or traversing uneven ground. Also, at times, he has difficulty getting in and out of a car. He has problems bending over and washing his feet. He has problems kneeling and squatting. He has limited sitting and standing tolerances.
88He said that he avoids medication because he does not wish to mask the pain and his understanding of what activities cause an increase in it in order to help him avoid them. He said that he tries to forego medication because he does not want to become dependent, but from time to time he will take Panadol.
89He explained that if he undertakes too much activity then, in the days that follow, he feels as if he has been in a brawl. His pain and restrictions “knock [him] about”[88].
[88]Exhibit P2, PCB 23.
90He tries to undertake domestic activities as well as some gardening, but if he does too much then he similarly also experiences pain in the days that follow.
Plaintiff’s second affidavit[89]
[89] Exhibit P2, PCB 54.
91The plaintiff said he continues to suffer discomfort and pain on a daily basis. There is not a day that goes by when he does not experience significant pain mainly concentrated in his lower back. He said he also suffers at times from left sided leg pain that would exceed 6 or 7/10 most days. He said the pain varies from day to day and there are days where the pain is not as bad as others, which makes his life difficult to plan and predict.
92The plaintiff has not regularly attended a general practitioner for lower back pain because, as he put it, there is nothing or little they can do to assist his pain.
93The plaintiff has used physiotherapy over the years to assist his lower back pain. He currently attends Balance Health at Cowes. He said he has had physiotherapy for his back and for a painful shoulder on approximately three occasions over the last 18 months. He also relied on a late served report by Gippsland Physiotherapy Group dated 20 September 2021 in regard to recent Pilates.[90]
[90]Exhibit P21, PCB 97.
94The plaintiff said that he finds it very difficult to play with his children and he has to be very careful when attempting to lift them. He suffered a shoulder injury as a result of wrestling with his five year old son.
95Going to the toilet causes him pain.
96Bending and putting on his shoes can cause a significant flare-up of low back pain.
97On occasions putting on his socks has caused a significant flare-up of pain.
98Any activity involving bending of his lower back causes the plaintiff pain.
Plaintiff cross-examined
99The plaintiff agreed that the surgery performed in December 2018 made things better for a period of time but perhaps for only “five weeks. It’s something I can’t remember to be honest.”[91]
[91] T15, L15-16.
100Although initially the plaintiff said he was never pain-free, he subsequently accepted that he suffered pain in his back “almost all the time.”[92] He agreed he has pain-free days.[93] Although defendant’s counsel may have intended to impute to the plaintiff a lack of candour about the consistency of his pain, I regard it as more probable than not that the account that he is “never” pain-free was intended to identify the chronic and frequent experience of variable pain. I did not assess the plaintiff as untruthful.
[92] T16, L14.
[93] T16.
101The plaintiff accepted that his pain does not stop him working.[94] In his current employment he can work up to 60 hours a week.[95] He works two days a week from home. He works three days a week from the office at Dingley Village.[96] He attends to emails in out of work hours and on weekends as required.[97] On some days between Mondays to Friday he can work up to 12 hours a day.[98] On those days that he works at the office he drives from his home, and the journey takes approximately 90 minutes.[99] Then, from the office, he is required on occasions to drive to various client locations.[100]
[94] T17.
[95] T19.
[96] T19.
[97] T19.
[98]T19.
[99]T20.
[100]T20.
102Of his travelling around Australia with his family in early 2019, he said he did most of the driving but, because the youngest child at the time was three years of age and required frequent attention, he would seldom be driving for more than an hour and a half to two hours at one time.[101] He said his walking varies depending upon how he feels of the day, but there has been “times when I can walk ten and other times when I can walk five K, give or take”.[102]
[101]T21.
[102]T23, L19-20.
103The plaintiff was asked about events in February 2019. He was directed to a note from Mr Rawlings following his discharge from hospital and being told by the plaintiff that he had experienced a significant improvement in his back. The plaintiff agreed. He accepted that at that point in time he was not experiencing pain or problems.[103] This coincided with the plaintiff about to embark on travelling around Tasmania. He thought that the trip to Tasmania was of the order of three or four weeks.[104] At that stage he said he was taking prescription medication.
[103]T24.
[104]T24.
104The plaintiff was directed to his attendance on Mr Oehme on 31 October 2019 and of Mr Oehme’s note that he was doing pretty well. The plaintiff said, “I felt pretty good I think at the time if that’s what it says.”[105] He was also directed to Mr Oehme, who recorded that he was experiencing “a bit of grumbling back pain.”[106] The plaintiff said, “if that’s what it says yes. I can’t remember the exact conversation.”[107] However, the plaintiff later in cross-examination disagreed that he has been left only with what Mr Oehme described as “a grumbling back pain”.[108] Mr Oehme recorded that the plaintiff reported his level of pain as about 1/10. The plaintiff said he could not remember if that was so.[109] Later, the plaintiff said his pain would be “at least a five or more on a regular”.[110]
[105]T25, L21-22.
[106]Exhibit P5, PCB 36.
[107]T25, L24-25.
[108]T26.
[109]T25.
[110]T27, L1-2.
105Mr Oehme also noted that by October 2019 the plaintiff was working full time and that although he had a bit of mild numbness in his right foot it was not troubling him. Again, the plaintiff said he could not remember the conversation.[111] He said he still has a bit of numbness in his little toe of the right foot and when asked if it bothered him he said, “To a point it does but it doesn’t, you know.”[112] He agreed it did not stop him from doing anything.[113]
[111]T26.
[112]T26, L7-8.
[113]T26.
106The plaintiff was asked about his attendance this year on a physiotherapist for right shoulder problem. The plaintiff said he also attended for his lower back.[114] He attended his physiotherapist on 7 July, 14 July and 23 July 2021.[115] He told the physiotherapist that he had a sore right shoulder and that he wrestled a good deal with his five year old son. The plaintiff agreed that wrestling his young son had been the cause of his right shoulder.[116]
[114]T27.
[115]T27.
[116]T27.
107It was suggested to the plaintiff that he is not precluded from playing with his children. He said, “When I can, yes.”[117] When it was suggested to him that he was able to play with his child to such a degree that he hurt his right shoulder in the process, he said, “Yes, but it’s a five year old boy.”[118] He told the physiotherapist that he felt pain in his AC joint with the result he had been unable to do chin-ups or push-ups”[119] The plaintiff maintained that it was his back pain as well that limits his ability to do push-ups or chin-ups.[120]
[117]T27, L25
[118]T27, L27-28.
[119]T28.
[120]T28.
108The plaintiff was asked about his surfing pursuits. He said he had undertaken a little bit of surfing when travelling around Australia.[121] He thought he had surfed twice this year. He said he could not remember doing any surfing in 2020 “because I didn’t have a wetsuit and it’s freezing.”[122] He told his physiotherapist that one of his hobbies was surfing. He said, “because I’m trying to get back into it, that is correct.”[123] When it was suggested to him that it was pain associated with his shoulder that was stopping him from surfing he said, “The shoulder at that point of time was increased, yes”.[124] He accepted that it is pretty hard to surf if one suffers from a bad shoulder because, in part, of the need to paddle out on the board.[125] He said, however, that his inability to push himself up on a board to stand was not because of his shoulder, but then added “I’ve never been able to stand on a board”.[126]
[121]T28.
[122]T28, L28-29.
[123]T29, L5-6.
[124]T29, L12-13.
[125]T29.
[126]T29, L20-21.
109He disagreed that what is presently preventing his surfing is the problem with his right arm and not his back.[127] He said the shoulder is fine and had been for the last three or four weeks.[128] He said he has not been able to surf since, largely because “it hurts my back”.[129]
[127]T30.
[128]T30.
[129]T30, L10.
110He explained that after his shoulder improved with physiotherapy he had not returned for physiotherapy in relation to his back condition, because he was now doing Pilates “and they’re helping my back.”[130] He said he commenced Pilates about six weeks ago twice a week with Gippsland Physiotherapy.
[130]T33, L19.
111He agreed that he told the vocational assessor that he can cook, can tidy the kitchen, can undertake some work in the garden, can help with the housework but added that in respect of all these activities they are “limited”.[131] He did not dispute the statement attributed to him and referred to in the vocational assessor’s report that, as of April this year, he was able to do push-ups four to five times a week but he said, “I don’t remember doing them four or five times a week”.[132]
[131]T35, L12.
[132]T37, L3-4.
112The plaintiff said that sleeping:
“is pretty much the bane of my day because when I lie down I cannot find a comfortable, I feel pressure I feel pressure along my core and then it builds up and tightens and it's hard - when I wake up in the morning it can be hard to breathe because you've just got that tightness, residual tightness, because there's no balance in my core from the muscles. I don't know what they're doing but it's just sore, my back.”[133]
[133]T37, L18-25.
113He said he wakes “regularly through the night”.[134] He says that when he wakes in the morning he does not feel as if he has had the best sleep, “you know, you feel a bit drained and sluggish.”[135] However, he said he takes nothing by way of assistance for his disturbed sleep.[136]
[134]T37, L28-29.
[135]T38, L1.
[136]T38.
114In re-examination the plaintiff said that generally he wakes up a minimum of twice a night.[137] Usually it will take him 15 to 20 minutes to return to sleep.[138] He said this has been the case since the 2013 injury.[139]
[137]T42.
[138]T43.
[139]T44.
115The plaintiff deposed in his affidavit to takin Panadol from time to time. In re‑examination he was asked to estimate over the last six months how often he would have taken that pain relief medication. He said, “Once a fortnight, once every-yeah, two weeks.”[140] He said his pain needs to be at the higher end of the scale and in the order of an 8 or 9/10 before he resorts to using Panadol.[141] He said the burning sensation he experiences down his right leg occurs once a week to once every eight days.[142] The pain can last up to a couple of hours or as little as 20 minutes.[143] The pain can restrict his walking and standing.[144]
[140]T46, L24.
[141]T46.
[142]T46.
[143]T47.
[144]T47.
116The plaintiff said he commenced work with his current employer in March 2021.[145]
[145] T47.
Defendant’s final address
117Mr McWilliams referred to the decision of the Court of Appeal in Haden Engineering Pty Ltd v McKinnon[146] (“Haden Engineering”) and the often referred to but non-exhaustive indicia to which a Court will normally give consideration as relevant when assessing a plaintiff’s pain and suffering and they are:
(i)what the plaintiff says about the pain in the court documents and also to doctors;
(ii)what he does about the pain – by way of medication, rest or treatment;
(iii)what doctors say about the extent and intensity of the pain;
(iv)what the objective evidence shows about the pain and its disabling effect.
[146](2010) 31 VR 1 at 4-5 [11]. Applied in Sutton v Laminex Group PtyLtd [2011] 31 VR 100 [31].
118In the context of the plaintiff’s evidence, Mr McWilliams submitted the following is revealed:
(i)He continues to work full-time earning more than he was at the time of the injury.
(ii)There is no known physical restriction placed on him in his work.
(iii)He is able to work up to 60 hours a week.
(iv)He is able to drive at least three hours per day, three days per week to work and back.
(v)He has in recent times driven between 800 kilometres and 1000 kilometres in the course of a working week.
(vi)His experience of pain has been fairly constant since surgery in late 2018.
(vii)His complaints of pain to doctors shortly after surgery were minimal and described by him as around 1/10.
(viii)He takes no medication and is receiving no ongoing treatment for his back injury save for Pilates.
(ix)Whilst he complains of difficulty toileting he has never sought any medical assistance in that regard.
(x)He has recently sought help from a physiotherapist for a shoulder complaint, thereby demonstrating a readiness to obtain medical treatment when required, such that it can be inferred that his lack of treatment with respect to his back or other complaints arising from the work injury is indicative of a low level of inconvenience and consequence.
(xi)He complains of interruption with his sleep but has always been a poor sleeper as reflected in the comment attributed to him by the CoWork vocational assessor, and there is an absence of any reliance on disrupted sleep attributable to the work injury in his two affidavits.
(xii)He travelled around Tasmania and later around mainland Australia with his family without any apparent difficulties after his surgery.
(xiii)He travels for work and seemingly so without any impediment or time off work to recover, and has not had a day off work in his current job because of back pain.
(xiv)Although the plaintiff complains of bowel issues (constipation) and some urinary problems, there is no evidence of any complaint to a treating practitioner of these problems nor any treatment sought in relation to them.[147]
[147] Exhibit D3, DCB 27.
119Mr McWilliams submitted that the plaintiff’s subjective assessments of pain are inconsistent with his general presentation, and that the extent to which he remains active is inconsistent with him qualifying as suffering a serious injury under the narrative test.
120Mr McWilliams also referred to and placed some emphasis on Hawkins v DHL Express (Australia) Pty Ltd[148] (“Hawkins”) in which the plaintiff presented with a number of similar characteristics to Mr Culhane save of course for the considerable age disparity between Mr Hawkins and the plaintiff. In Hawkins, the trial judge’s finding that the plaintiff’s pain and suffering consequences were less than serious was not disturbed on appeal. Some of those findings that are worth noting included that:
[148] [2013] VSCA 26 per Redlich and Tate JJA.
(i)The worker had retained a capacity to work notwithstanding his impairment.
(ii)The worker was able to work for four days one week and three days the following week as a driver for Pro Air, delivering plans or air-conditioning products to various sites throughout the Melbourne metropolitan area, and that the only restriction imposed upon his work activities by his employer was that he was not to unload the company vehicle and that others were to assist him in that exercise.
(iii)There were “no medical restrictions placed on the [worker’s] duties.”[149]
(iv)Although the worker had reported constant pain, he had not required medication to assist in the carrying out of his work duties nor had he sought medical treatment or complained of increased neck problems to any treating doctor since resuming work.
(v)The work for Pro Air involved prolonged driving activity for the whole day, driving between various sites in accordance with a work plan and calls on the day.
(vi)With respect to the assessment of the pain suffered by the worker, the trial judge noted that it was important to consider what he had done about his pain. Although he had complained of constant pain for over five years since the incident, he had “not taken any medication or required any treatment, explaining that it did not provide him with any benefit.”[150]
(vii)The trial judge concluded that the worker’s pain did not amount to an “endurance of permanent daily pain requiring frequent medication” as described by Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd.[151]
(viii)The trial judge also noted that, although the worker had problems sleeping, “he has not required any medication or sought any treatment in this regard’.[152]
(ix)The trial judge also took into account, amongst other matters, the fact that the worker had not complained of increased neck trouble to any treating doctor since returning to work, that the nature of his sleep disturbance had not been such as to require medication or treatment and that he had remained as active as possible, including pottering in the garden and doing some light home maintenance.
[149]Ibid at [50].
[150] Ibid at [52].
[151] (2007) 17 VR 592 at [199].
[152] Hawkins [2013] VSCA 26 at [52].
Plaintiff’s final address
121Mr Walsh relied on the relative youthfulness of the plaintiff. He is currently 40 years of age and suffered his injury at 33 years of age. The injury was a frank disc prolapse to the L5-S1 disc. He came to surgery and has been left with a vulnerable back. His future will be limited to duties that can accommodate what is essentially a “light back”.
122In answer to the lack of medication for pain relief or recourse to treatment, Mr Walsh relied on the oft expressed principle that a stoical plaintiff ought not be treated less favourably. I accept the validity and utility of that observation. On the other hand, the absence of the same can, in a suitable case, be because of a lack of need for pain relief or for treatment.
123Mr Walsh relied on the report of Professor Buzzard who considers that the plaintiff’s injury is consistent with the 2013 accident and who said:
“I think there is a reasonable evidence of him having radiculopathy. In particular I draw your attention to the sensory disturbance that he has had and the diminished right ankle jerk.”[153]
[153] Exhibit D1, DCB 3.
124He also described pain that radiated down the plaintiff’s leg and also the numbness in the small toe of his right foot. These, Mr Walsh submitted, are objective manifestations of consequences of ongoing problems at the discal level as opposed to a temporary problem. Mr Walsh emphasised that they had been an issue for the plaintiff for a period of some seven years by the date of Professor Buzzard’s report. Mr Walsh relied on what he submitted has been a considerable and demonstrable change in the plaintiff’s functioning of his lower back because of the nerve impingement as well as extending down his leg.
125In addition, Mr Walsh referred to Dr Slesenger’s report dated 27 April 2021,[154] in which he noted that the plaintiff’s surgery in December 2018 was “partially successful” in relieving symptoms but nevertheless the plaintiff still suffers from residual lower back pain that is moderate and occasionally severe. He noted associated right leg pain, possible weakness and numbness in the right little toe. His opinion culminated with a prognosis that:
“must be guarded given the length of Mr Culhane’s impairment and disability and the comprehensive nature of the treatment received. I anticipate he is likely to suffer with residual lumbar spinal impairment into the foreseeable future.”[155]
[154] Exhibit D2, DCB 21.
[155] Exhibit D2, DCB 22.
126Mr Walsh submitted that such an opinion from a defendant’s medical assessor paints a significant and fairly bleak picture for a still relatively young man who, in the years ahead, is likely to continue to suffer impairment.
127Mr Walsh addressed the matter of need because of the injury for the plaintiff to have given up his former job that was well paid. True enough the plaintiff is being paid more in his current job, but it is not a position he would have taken up, and neither was his past work something he would have surrendered, but for the need to retrain and find alternative employment due to his compensable injury. It may sound trite but, even though he is earning more, that arises on the back of an injury that has for the foreseeable future locked the plaintiff into a reduced scope of future employment opportunities.
128Mr Walsh addressed the issue of sleep. He acknowledged the omission in either of the plaintiff’s affidavits to any reference to sleep loss or disturbance as a consequence of the plaintiff’s impairment. However, he submitted that there is a sufficiency in the reporting of the plaintiff experiencing disturbed sleep such that I should not treat the absence of reference to it in the plaintiff’s affidavits as a matter of significance and adversely to him.
129The plaintiff’s sleep has been referred to by Mr Kossmann, Mr Jones, Mr Rawlings, Dr Mehr, Associate Professor Doherty and the vocational assessor. It has also been mentioned in the clinical notes of Christina Laws, physiotherapist.
130Mr Walsh noted that the plaintiff’s mobility is affected to some extent although not significantly.
131Mr Walsh acknowledged that the plaintiff now surfs to some extent, that is, he can paddle and he can use his arms when doing so, but he cannot manoeuvre his legs up onto the board due to the ongoing vulnerability and consequent functional limitation that comes from his lower back.
132Mr Walsh submitted that not only has the plaintiff been inhibited in his capacity to fully surf, something he has tried to take up after his injury, but that it is as I understood the contention, “small beer” in comparison with the numerous past recreational activities he has been required to surrender, and that the evidence suggests he engaged in on a reasonably regular basis.
133He has problems with toileting and dressing. He said he needs to be guarded when going up and down stairs, walking on uneven ground and he can experience difficulties getting into and out of motorcars. He has limitations on sitting and standing, the effects of which Mr Walsh submitted was evident during the course of the hearing. I note the fact of these cautious approaches to everyday activity was not really challenged.
134The plaintiff estimated in the course of his evidence of having perhaps between 20 or 25 days pain-free during the course of the year.
135I am satisfied of the following matters:
(i)The plaintiff suffered a compensable injury that is, a mechanical injury to the lumbar spine.
(ii)As a result of the plaintiff’s injury, he underwent a right L5-S1 microdiscectomy and rhizolysis on 20 December 2018.
(iii)The plaintiff was a young man when he suffered his injury. He was still relatively young when he came to surgery in 2018 and at age 37. He faces a possibility of a fusion, but at some uncertain point in the future.
(iv)Even if a fusion does not eventuate, I accept the prognosis from Dr Slesenger, who examined the plaintiff on behalf of the defendant, that he can expect “…to suffer with residual lumbar spinal impairment into the foreseeable future”.[156]
[156] Ibid.
(v)I am satisfied and accept that the plaintiff suffers from residual lower back pain and that the pain he suffers is moderate and occasionally severe. He does not experience pain daily, but I am satisfied that it is regular and that, over the past year, he has been pain-free for less than 1/12th of it. Thus, I accept the plaintiff suffers chronic pain associated with an organic injury. I am satisfied on the balance of probabilities that this requirement to live with pain will remain a feature for the plaintiff in his future life.
(vi)I also accept that the plaintiff experiences pain that radiates down his right leg and that is accompanied by some numbness in the small toe of his right foot.
(vii)The plaintiff’s impaired functioning does appear to intrude on his domestic activities to an appreciable extent.
(viii)I accept that the plaintiff has lost the ability to engage in all of his pre-injury recreational pursuits of football, fishing and basketball, and I accept that he appears to have engaged in them on a regular basis. The extent of the loss of the capacity to engage in the recreational activity of fishing has also led to him to sell his boat. I regard these consequences as significant matters.
(ix)I also accept that the plaintiff’s mobility is affected to some extent. I accept that he needs to alternate his posture between standing in one spot and being seated, and this was evident in the course of the giving of his evidence.
(x)To the extent the plaintiff’s capacity to drive is affected by his back pain, I am satisfied he is able to accommodate his pain when engaged in that activity even when required to drive considerable distances as part of his work week. He is able to drive at least three hours per day, three days per week to work and back. It has been noted in recent times that he has managed on one occasion to drive between 800 kilometres and 1000 kilometres in the course of a week. I accept that to accommodate his driving he does require to take breaks in his journey as has been described in connection to his commute to work and home.
(xi)I accept that the plaintiff experiences some sleep difficulties. I do not underestimate the importance of regular, sound sleep and that the interference with it can be a significant consequence for a man or woman. I accept that there are accounts reported by various doctors to whom I have referred that report on the plaintiff referring to interrupted sleep. However, I think it is important and relevant that the issue was not referred to in either of the plaintiff’s affidavits and neither was any evidence sought to be led from the plaintiff concerning sleep by way of additional viva voce evidence by way of leave. There is also an absence of evidence that a lack of sleep interferes with the plaintiff’s employment, but I again note that for two days a week he works from home. Although the plaintiff only commenced his current employment in March this year, he has not required any time off work due to his injuries.
(xii)In respect of employment, I accept that as a result of his injury the plaintiff is unable to undertake work of the type in which he was engaged prior to his injury, that is the work of a refrigeration mechanic.
(xiii)The employment that the plaintiff obtained earlier this year is more remunerative than his previous employment with the defendant. Also, there is no physical restriction placed on the plaintiff in his work in order for him to undertake and discharge his employment. He has a capacity to work on occasions up to 60 hours a week, and he also performs some general duties outside work hours by way of attending to emails as required.
(xiv)I think it is relevant that the plaintiff is working two days a week from home and attending his employer in Dingley for three days a week. I note that it was not suggested this arrangement or splitting between office and home was COVID-19 related, and therefore he may well be expected to attend the office more frequently post-COVID-19 related restrictions. Such accommodations as now exist may not of course necessarily prevail over the balance of plaintiff’s anticipated future working life.
(xv)I also regard it as a relevant consideration that the plaintiff’s future employment will most probably be limited to jobs that can accommodate a scope of duties commensurate with a light back.
(xvi)I have paid regard to the plaintiff’s complaint of difficulty toileting, and I accept that it appears from the evidence that the plaintiff’s surgery has left him with some residual bowel and bladder difficulties but for which no treatment or medication has been obtained.
(xvii)The plaintiff accepted that his experience of pain has been fairly constant since surgery in late 2018.
(xviii)His complaints of pain to doctors shortly after his surgery were minimal and has been described by one as around 1/10.
Evaluation and assessment
136On the issue of pain and loss of enjoyment of life generally and the effect of a loss of employment even though other employment has been found, it is worth noting that otherwise in Haden Engineering, Maxwell P set out various principles in evaluating the “pain and suffering consequences”. In particular, at paragraphs [14]-[15] under the heading “The disabling effect of pain”, Maxwell P states:
“As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained’.[157]
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[158] What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.”[159]
[157]Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [27].
[158] Reference was made to Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at [47].
[159]Reference was again made to Dwyer v Calco Timbers Pty Ltd(No 2) [2008] VSCA 260 at [25].
137This emphasis on work in the content of a determination of a serious injury assessment was also referred to in Ellis Management Services Pty Ltd v Taylor,[160] wherein the Court of Appeal stated:
“As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.”[161]
[160] [2013] VSCA 326 (‘Ellis’).
[161] Ibid at [35].
138I have already noted that the area of work in which the plaintiff was engaged prior to his compensable injury as a refrigeration mechanic has been closed off to him. The consensus is that from here on in, he is limited to work that can accommodate a light back. The plaintiff could be expected to have many further years of the need for gainful employment, and a limiting of future light back work, in my judgement, is a permissibly acceptable relevant consideration in assessing the consequences of his injury. It is an important consideration.
139As regards the plaintiff’s limited attention for medical treatment and absence of prescribed medication, I have considered the possibility that the plaintiff is a stoical man. I have remained mindful not to use the fact of the plaintiff’s evident work ethic to his disadvantage by way of precluding otherwise an entitlement to a serious injury certificate. I have also considered what insight I can gain into the extent of the plaintiff’s pain and suffering consequences on a daily and ongoing basis from his compensable injury by the limited recourse to medicine and treatment as well as his disclosed work capacity.
140I have concluded, in light of the extent of the plaintiff’s disclosed capacity to work and to drive and to fulfil his employment, that on balance it is it more probable than not that the level of his regular but not daily pain is moderate. Whilst it may not be a 1/10, as the plaintiff appears to have recounted to Mr Oehme after the surgery in 2018, nonetheless, neither is it of a level that impedes his current work.
141I consider there to be only minimal probative value to be gained from the comparative response of the plaintiff to his shoulder injury whilst wrestling with his son, and the assistance he sought from a physiotherapist, as opposed to the comparatively lengthy period of time the plaintiff has not sought medical treatment or attended a local treating practitioner for his back despite pain.
142I do not adopt the conclusion urged on by counsel for the defendant, that the relative positions adopted by the plaintiff in seeking recourse to treatment for his shoulder inferentially reveals that his back or other complaints arising from the work injury are indicative of a low level of inconvenience. After all, I have borne in mind and I accept, that the plaintiff’s explanation for not having seen a local doctor since he moved to Cowes is that there is little than can be done for him. That was not gainsaid by contrary opinion. As far as the lack of recourse to stronger medication other that an occasional Panadol is concerned, the plaintiff explained that he was alert to not wanting to become dependent on strong painkillers or to masking the source of pain and so confound his ability to adopt remedial efforts in his everyday life to counter situations that might cause any aggravation. I accept his explanation.
143I am satisfied that the plaintiff suffers interrupted sleep but, by the same token, I also accept it as more probable than not that he has always been something of a poor sleeper, as was reflected in the comment attributed to him by Ms Grieg from CoWork and that was not contested in a meaningful sense by the plaintiff. There is a reference in the clinical notes of Ms Laws dated 23 July 2021 that the plaintiff “does not get much sleep at night with kids in the bed”. [162] It was noted he had a bed that could be adjusted with a dial and the children jump on it and “feel tight to sleep”.[163] On the other hand, I am unwilling to ignore the accounts of sleep disturbance and broken sleep that are contained in the reports earlier mentioned. It is troubling that the matter was not addressed in the plaintiff’s affidavits prepared by his solicitors and that the plaintiff adopted as true. On the other hand, I have not found the plaintiff to be other than credible and someone who gave direct testimony. His efforts at work are indicative of his genuineness. Whilst the plaintiff’s sleep may not have been impaired to the extent canvassed by Maxwell P in Haden Engineering[164] I am nonetheless satisfied that there has been an appreciable deterioration to his sleep by reason of the compensable injury.
[162] Exhibit D7, DCB 99.
[163]Exhibit D7, DCB 96.
[164] Supra (n146).
144I have taken into account that the plaintiff was able to travel with his family without any apparent difficulties some 12 months after his surgery.
145I accept that it has been necessary for the plaintiff to have relinquished his pre‑injury sporting and recreational pursuits because of his injury. I think the taking up of surfing is some indication of a capacity for enjoyment of life. However, I prefer and accept that it is more probable than not, that he is limited in that range of movement required to become upright on a surfboard and thereby fully embrace the sport because of the consequences of his lumbar spine, as opposed to a lack of proficiency. He is limited to paddling and can use his shoulders to do so. That strength appears also to be reflected in the plaintiff’s capacity to do chin ups and push ups based on the note of Ms Laws.[165]
[165] Exhibit D7.
146Although it seems the plaintiff has retained a capacity to engage in a range of everyday domestic activities, that said, his evidence is that in respect of them all, his capacity to do so is more limited to what it had been before the injury.
147The plaintiff deposed that he experiences problems dressing and putting on his socks and shoes. I accept his evidence on these matters.
Assessment and conclusion
148Sensibly and justly, there is no exhaustive checklist of factors that when toted up on either side of a ledger can be determinative of an outcome in the determination of a serious injury application. The considerations identified in Haden Engineering, for example, are just that, considerations. They are, however, helpful. In this case, the plaintiff is able to affirmatively rely to some degree upon a number of them, such as household and family activities, recreational activities, social activities, sleep and the enjoyment of life generally, all having been diminished by comparison to what he enjoyed before his injury.
149The plaintiff’s injuries are not trivial. He has suffered a long term impairment of his spine. His impairment is permanent. In consequence of it, to be compelled to relinquish all previous sporting and leisure activities, and to see no utility in holding onto his boat that he previously used for fishing which he can longer pursue, cannot, I think, be thought to have been ameliorated by a subsequent and yet incomplete ability to pursue a limited form of surfing.
150The plaintiff’s capacity to work is the issue that most directly challenges if the compensable injury has resulted in consequences that are “at least very considerable” and “more than merely significant or marked”.[166] Having explained my reasoning in regard to the plaintiff’s work capacity, on balance, I am satisfied that on an analysis of all the evidence, the consequences come to be assessed and fall to be characterised against that measure of being at least very considerable and more than merely significant or marked. That expression means naturally enough that there will be cases that readily and easily meet that minimum threshold and more, but they need not be “more” so long as, by an objective measure of the plaintiff’s impairment when measured against a range of like impairments, I can be satisfied that the pain and suffering consequences are at least “very considerable and more than merely significant or marked”.[167] For the reasons I have endeavoured to express, I am satisfied that they do meet that test. I am satisfied they are long term and permanent. The application, therefore, is granted.
[166]Section 134AB(38)(b) and (c) of the Act.
[167]Ibid.
151I direct that within 7 days of the publication of these reasons the parties furnish a minute of proposed orders in the absence of which I will list the matter for mention.
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