Culic v CSR Limited
[2016] VCC 1031
•22 July 2016 (revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03751
| SLOBODAN CULIC | Plaintiff |
| v | |
| CSR LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 June 2016 | |
DATE OF JUDGMENT: | 22 July 2016 (revised) | |
CASE MAY BE CITED AS: | Culic v CSR Limited | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1031 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – low-back injury – paragraph (a) – serious injury – pain and suffering only – “throughout the course of the employment” – range
Legislation Cited: Accident Compensation Act 1985, s134AB; County Court Act 1958, s74; s10(1)(c) of the Supreme Court Act 1986, s10(1)(c)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511; Moorabbin Transit Pty Ltd v Bekhit [2016] VSCA 70; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Humphries v Poljak [1992] 2 VR 129; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Altona Bus Lines v Lococo [2002] VSCA 159; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Transport Accident Commission v Kamel [2011] VSCA 110
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages in respect to low-back injury suffered in the course of his employment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr J Angenent | Zaparas Lawyers |
| For the Defendant | Ms J Forbes QC with Mr S Dawson | Sparke Helmore |
HIS HONOUR:
1 By way of Originating Motion, Slobodan Culic (“the plaintiff”), seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for an injury to his lower back suffered by him during the course of his employment (“the injury”) with CSR Limited (“the defendant”).
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering” damages only, within the meaning of s134AB(37) of the Act. The plaintiff was the only witness who gave evidence, and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure A
Relevant legal principles
3 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a serious injury within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
4 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function … .”
5 The part of the body said to be impaired for the purposes of paragraph (a) is the lower back.
6 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“The injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant on or after 24 October 1999;[3]
(b)“The injury”, and resultant impairment, must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)The “consequences” of the injury in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function is:
“… when judged by comparison with other cases in the range of possible impairments or … disfigurements … may be, fairly described as being more than significant or marked, and as being at least very considerable.”[5]
This test is sometimes referred to as the “narrative test”.
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[4]See Barwon Spinners Pty Ltd & Ors v Podolak (supra)
[5]See s134AB(38)(b) and (c) of the Act
7 In determining the application, 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”;[6]
(b)Must make the assessment of “serious injury” at the time the application is heard;[7]
(c)Must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[8]
(d)Notes that the question of whether an “injury” satisfies the narrative test is largely a question of impression or value judgment.[9]
[6]See s134AB(38)(h) of the Act
[7]See s134AB(38)(j) of the Act
[8]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]
[9]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
8 When queried as to what were the issues in the proceeding, Senior Counsel for the defendant stated that there were essentially two issues:
(a)The application by the plaintiff alleges that the plaintiff suffered injury throughout the course of his work process and also, in particular, injuries in 2007 and 2011. The defendant submits that the plaintiff cannot aggregate the incidents in 2007 and 2011;
(b)In any event, the defendant disputes that the plaintiff satisfies the narrative test.
The evidence of the Plaintiff
9 The plaintiff relies on two affidavits – the first affidavit sworn on 30 March 2015 (“the first affidavit”) and a second affidavit sworn on 8 June 2016 (“the second affidavit”). The plaintiff acknowledged that he had read those affidavits knowing that they were going to form part of his evidence in this matter.[10]
[10]Transcript “T” 38, Lines “L” 30 – T39-L1
10 Leave was given to Senior Counsel for the plaintiff to examine the plaintiff in relation to the nature of the work process that he was involved in and the state of affairs following the 2007 back injury. In particular, the following evidence was given:
Q:“Before that incident in 2007, did you ever have right leg symptoms?---
A:No.
Q:As a result of that incident, did you have right leg symptoms?---
A:Yes, I have, and lower back, yes.
Q:After that incident, have you ever been completely free, that is no back or leg symptoms at all?---
A:No, never, there [is] always pain there.
Q:Come back to your work process - - -
HIS HONOUR:
Q:I am sorry Mr Mighell. (To witness) When you say the pain is always there, are you referring to the back pain or the right leg pain or both?---
A:Back pain is always there, but right leg pain is on and off.”[11]
[11]T40, L20 – 31
11 The plaintiff also gave evidence that he had worked for the defendant for the last thirty-six years. Furthermore, since 1999, he had been a plaster mill operator, which involves cooking the plaster. In particular, he described that from time to time, he was required to fill in for others and to perform work as an assistant plaster mill operator which involved filling up the gypsum in the gypsum hoppers. The plaintiff gave evidence that it was in 2007 that he was covering for someone when he slipped off the front-end loader.
12 In particular, the plaintiff also gave evidence in relation to his “work process”. The following evidence was given:
Q:“Your work process in operating the mill, was that the same every day or would it vary?---
A:Usually the mill – usually it’s the same but sometimes we’ve got some sort of issues, feed problems, things like that, and then you have to act and try to unblock the system or get going or sometimes something comes off then called in people to reset and we help them out, things like that, yeah.
Q:Was that work when you are called in from time to time, as you have described, would you describe to His Honour that work as being light work or heavy work or did it vary?---
A:Look, sometimes it getting a bit hard, sometimes lighter, yes. So when there’s a rotary well blocked up, is torn, so we have to get a big long bar, then move around to make sure it release that stone or piece of steel sometimes comes through, so it gets heavier, yes, and during the maintenance day, we have to do a bit of housekeeping and is awkward position to clean under the conveyors you have to squat, bend, pushing the access or gypsum around, so, yeah.”[12]
[12]T41, L18 – T42, L5
13 By way of his first affidavit, the plaintiff gave evidence that he was born in the former Yugoslavia (known as Bosnia and Herzegovina) in September 1955. He is naturally right handed.
14 The plaintiff attended school to Year 8 in the former Yugoslavia, after which he completed a three-year mechanical apprenticeship and, then, in 1974, he was in the Yugoslav Army for about fifteen months. Thereafter, he worked in Iraq as a mechanic for about eighteen months.
15 The plaintiff came to Australia on 28 June 1979, after which he worked on a production line at Toyota, assembling car parts for a few months and then, in December 1979, he commenced employment with the defendant as a contractor performing maintenance work. He continued in such role until 7 July 1980, when he commenced full-time work with the defendant as a plasterboard operator.
16 The plaintiff recalls that in or about 1987, he hurt his back, although has no memory of seeing a doctor or taking any time off work. In particular, he described that he “got over this”. Over the next twenty years or so from 1987, he describes having a bit of back pain, as his back would “play up now and then”.[13]
[13]See exhibit 2, paragraph 4 of the first affidavit, PCB 18
17 The plaintiff describes that in or about 2007, he remembers “slipping at work and hurting my back with pain going down my right leg”.[14] He recalls consulting the company doctor, obtaining physiotherapy for about one year and taking some pain medication.
[14]See exhibit 2, paragraph 4 of the first affidavit, PCB 18
18 The plaintiff describes that in or about 2010, several jobs were combined into one and his workload increased, causing him to be required to operate three other machines and a forklift, which involved more bending, lifting and twisting. He was experiencing more back pain, causing him to consult a doctor, who arranged for him to undergo an x-ray of his lower back in November 2010. Although he kept working, he has a memory of taking either “Advil or Panadol for the pain”[15] and does not recall taking any time off work.
[15]See exhibit 2, paragraph 5 of the first affidavit, PCB 18
19 In or about 2011, because part of the machine was not working, the plaintiff had to bang the sides of the hopper using a large steel bar which was about 2.5 metres long. He was performing such activity for about five to ten minutes every half-an-hour or hour during his twelve-hour shift. In particular, on or about 4 August 2011, he was using the metal bar to repeatedly hit the wall when he, again, experienced lower back pain which went down his right leg, together with neck and right shoulder pain.
20 The plaintiff reported the injury to his supervisor, but continued working to the end of his shift and when coming back to work the following day, he felt pain in his lower back, neck and right shoulder.
21 After a few days, the plaintiff consulted his family doctor, Dr Zenon Gruba, who gave him some acupuncture and referred him to physiotherapy over the following two weeks. He describes that over time, his neck and right shoulder pain got better; however, his “lower back and right leg pain were still playing up”.[16]
[16]See exhibit 2, paragraph 8 of the first affidavit, PCB 19
22 The plaintiff recalls that on the day that he first saw his family doctor, he also saw the company doctor, who arranged for him to have six months of light duties. He recalled that in or about the middle of 2012, he was referred for a CT scan of his lower back by the defendant and in or about July 2013, because of his back pain not getting any better, he was referred for an MRI scan of his lower back, which he believes showed he had a disc bulge at the L4-5 level.
23 The plaintiff recalls that he was referred by the family doctor to the neurosurgeon, Mr Timms, who informed him that he may need an operation to his lower back. He recalls taking Celebrex and undergoing acupuncture for about one month from his family doctor. In particular, he describes that since August 2011, he performed light duties and then, from about October 2013, he has been working in the laboratory as a full-time product tester, which is not a physically demanding job.
24 At the time of his first affidavit, the plaintiff described experiencing lower back pain and pain that goes down his right leg, in particular, he describes this pain in the following way:
“… This pain goes up or down depending on what I have been doing. It is a spasm type of pain that goes from my lower back down my right leg into my calf. This pain comes on if I have been doing some physical work. My lower back and leg pain gets worse if I have been doing lots of bending. I also find it hard to squat because of my lower back pain.
A lot of the time, I get tingling in my right leg and spams in my right calf. Sometimes, I also get weakness in my right leg. Sometimes, I get pain that shoots down my right leg when I cough or sneeze. Sometimes, I get a burning and itching pain in my right heel.”[17]
[17]See exhibit 2, paragraphs 13-14 of the first affidavit, PCB 20
25 The plaintiff describes that it is hard sitting or standing for more than thirty to forty-five minutes and after about thirty or forty minutes, he has to try and change his position or his posture to help his lower back and right leg pain.
26 At the time of his first affidavit, the plaintiff was attending his family doctor about once a month or two months and during such consultations, his doctor gave him acupuncture and “drops”, which he understands were some form of naturopathy. He has also been given prescriptions for Celebrex, but would only take such tablets if the pain was really bad.
27 At the time of the plaintiff’s first affidavit, he described the “consequences” of his lower back injury to include the following:
(a)Waking up at night because of his lower back and right leg pain and finding it hard to find a comfortable position to sleep in;
(b)Prior to his “injury”, he used to enjoy walking for 3 or 4 kilometres most evenings in the parks around his home, but is now limited to walking about once a week for a shorter period. When trying to go for his usual walk, he finds it hard to keep going and has to stop and sit down and rest for ten or fifteen minutes. He describes that “exercising was important to me and now I feel like I have lost the ability to do this”;[18]
[18]See exhibit 2, paragraph 18 of the first affidavit, PCB 21
(c)When driving an automatic Commodore for about thirty-five or forty minutes, he gets worse back and right leg pain and tends to avoid driving for long distances. He gave the example that over Christmas, he and his wife drove to Bright and he had to stop a number of times to have breaks because of lower back pain. He avoids going for long drives to Deniliquin or Echuca, like he did prior to his injury;
(d)He describes himself as barracking for the Collingwood Football Club and prior to “the injury”, he used to go to a lot of the games at the MCG and watch them play, but now hardly ever goes to watch them, as sitting for a long time makes his back pain “worse”. Furthermore, he used to enjoy watching state league soccer games with friends, but since the injury, has found it hard going, as standing for a long period of time makes his back pain worse;
(e)Before “the injury”, he used to help his wife with the house work, the vacuuming and stacking and unstacking of the dishwasher, but now finds it hard performing vacuuming work and he tends to avoid stacking and unstacking the dishwasher as bending over like that makes his back pain worse;
(f)He used to mow the lawn, sometimes once a week, or once a month. Now his son and his wife help him with this task, although sometimes he attempts to mow the lawn, but has to break up the job. He finds gardening much harder, especially weeding and rather than bending, he would now kneel down to do such activities. Prior to the injury he used to help his wife in the vegetable patch, but he is now only capable of limited assistance because of his lower back pain;
(g)He used to do bigger shopping trips with groceries with his wife, but now is only capable of helping his wife with smaller shopping, as this is easier to carry with his back condition;
(h)Before the injury, he enjoyed camping with friends and family in Deniliquin and Echuca and used to perform such activity a couple of times a year for a few days. When camping, he enjoyed going for long bush walks, but since the injury he has found it hard to go camping because sleeping in a tent is not comfortable with his back pain and, furthermore, he is unable to go for long bush walks as he did before;
(i)He enjoyed playing billiards with friends’ and family at friends’ homes and, also, at the Serbian Orthodox Community Hall in St Albans. Sometimes he would go to such hall and play billiards two or three times a week or two or three times a month, but now finds it hard to play billiards and plays far less than before. In particular, he finds it hard bending over and playing, especially when his back pain is worse than usual. Furthermore, he also enjoyed playing bocce with friends at the Serbian Hall for similar periods of time. Now he finds playing bocce “hard”;
(j)He believes that his sex life is more limited because of his lower back pain and when he does perform sex he has pain in his lower back;
(k)He finds it difficult putting his socks and shoes on due to back pain and has to be careful when he is doing this. He believes he has put on about five kilograms, as he is not as active as he used to be because of his lower back condition.
28 In his second affidavit, the plaintiff describes how he has continued to work with the defendant performing light duties in the laboratory as a product tester. In October 2015, he was requested by his employer to train a new worker as a plaster mill operator and was there until April 2016, performing his old work, before moving back to the laboratory.
29 The plaintiff describes that he is coping well with his duties as a product tester in the laboratory as this is not particularly heavy work, but does find that his back is tighter and more painful after a day’s work.
30 The plaintiff also describes that on 27 February 2016, he suffered injury to his left shoulder when attempting to remove a PLB core that had been stuck within a machine. In this respect, he considers that because he always tries to protect his lower back when working, and making sure that any movements will not increase his back pain, he had to use more force in his upper body to remove the cord, which he believes is the reason he injured his left shoulder.
31 The plaintiff has obtained medical treatment in relation to his left shoulder, involving an ultrasound on 29 March 2016 and an MRI scan of the shoulder on 4 April 2016. Following these investigations, he has continued to be treated by his general practitioner, Dr Gruba, who also treats his lower back condition.
32 On 4 May 2006, the plaintiff underwent a cortisone injection which has relieved some of the pain in his shoulder, although has been advised it may take up to eight months for the shoulder to “get better”.
33 The plaintiff continues to see Dr Gruba about once a month, who describes naturopathic drops which help with his lower back pain, and he takes such drops daily. Dr Gruba also prescribes Celebrex, to take when the pain is “really intense”, and the plaintiff believes he takes these a few times a month, although he tries to bear the pain as best he can in order to avoid the medication.
34 In particular, at the time of swearing his affidavit on 8 June 2016, the plaintiff deposed:
“9.I continue to have lower back pain present all the time although it varies in intensity. I find that I constantly need to be conscious of my movements and how I go about my work and daily activities so that I don’t jar my back or cause the pain to intensify.
10.I have also found that no matter how careful I try to be, I tend to get a sharp stabbing pain in my lower back which can be so intense that it has caused me to drop whatever I am holding or carrying, which was most recently a cup of tea.
11.When I get this sharp stabbing pain, the pain lasts for some time and I need to carefully sit or lie down and will often put a heat back (sic) on my back to try and relieve some of the pain.
12.This greatly upsets me as I continue to be restricted in enjoying the things I liked doing before my lower back injury. My friends regularly go camping or hiking and I am no longer able to participate in this which has resulted in a diminished social life. I no longer get the same enjoyment out of socialising with my friends as I used to because the activities I am able to participate in are restricted by my physical limitations.
13.Having to consciously think about how I will bend, twist or lift anything over a few kilograms so as to not trigger the sharp stabbing pain takes away any enjoyment I might get from hobbies so I tend to just avoid them all together. … .”[19]
[19]See exhibit 2, paragraphs 9-13 of the second affidavit, PCB 26
35 The plaintiff also describes being upset that he cannot help his wife around the house and, in particular, around the garden, and feels guilty that the heavier tasks such as the handling of bulky cooking pots, weeding or mowing the lawn, which he did previously, have now mostly been left to his wife and son. Although he asserts that he attempts to do some of these activities when he is feeling better, he finds that usually when he gets home from work he just wants to rest his back and finds himself “being pretty useless around the house”.[20]
[20]See exhibit 2, paragraph 14 of the second affidavit, PCB 27
The cross-examination of the Plaintiff
36 In response to a number of questions, the plaintiff described his various jobs with the defendant as follows:
(a)When he commenced full-time employment with the defendant in 1980, he was employed as a paper pulp operator, where he worked for about three or four months;
(b)Then he was employed to work as a plaster machine operator, initially, on the left side and, after six months, on the right-hand side, which is considered a type of promotion;
(c) From about 1990 to 2000, he worked as a laboratory assistant;
(d)He was then employed as an assistant plaster mill operator and, later, a plasterboard operator;
(e)He continued to work as a plaster mill operator from 2007 to when the job description changed and he commenced to work in the laboratory.
37 The plaintiff confirmed that when employed as a plaster mill operator from 2005 up until the injury in 2007, the injury in 2007 was caused by him slipping off a front-end loader and falling “maybe 1.2 metres”, landing on his right leg.
38 Furthermore, although employed as a plaster mill operator at that time, the plaintiff gave evidence as to the circumstances leading up to the injury in 2007:
A:“… my day off, that particular day, the supervisor call me to coming in to cover because someone’s missing or sheets was coming with the gypsum, so we have to make a ramp or something like that, yes.
Q:That would be something which, in your job as a plaster mill operator, you could have been called upon to do any time, to help out like that.”---
A:Yes, yes.”[21]
[21]T43, L22 – 29
39 The plaintiff accepted that the work of a plasterboard operator is not a heavy job and involved pressing buttons to operate the machine, although there was some manual work as well. When queried as to what manual work was involved, the following evidence was given:
HIS HONOUR:
Q:“What do you mean sometimes you had to do manual? What does that mean?---
A:Well, when we – when we got system blockage, we have to stop and (indistinct) and work out, open up or clean up and – and when sometime you change a system, there is sort of changes to be done. You have to open up different (indistinct) …
Q:Is it a big machine you have to work on?---
A:They are big machine, yes.
Q:A machine that you have had to climb onto sometimes?
A:Yeah. We have – we have three levels, yes.
Q:There’s three levels on the machine?---
A:Yeah.
Q:If you have a blockage, what might you have to do as an operator?---
A:We have – like I say, we have to - we have to stop the system (indistinct) and start to clean up, work out what is wrong. Sometimes we got a bucket inside. We used to, before, open up the hatch and look at the bucket, take it out, go back, switch back on, going. If we cannot lift the bucket by yourself, we call maintenance department and they slow it down, the system. Sometimes we have to shut down the system as well.
Q:When you had to do something as an operator when the machine is not functioning correctly or stops, does that involve physical work?---
A:Sometimes it does, yes.”[22]
[22]T45, L14 – T46, L6
40 The plaintiff confirmed that, after the injury, he continued to work as a plaster mill operator until 2010, when the job description changed. He also confirmed that during this period of time, from 2007 to 2010, he was working twelve-hour shifts for two days and then he would have three days off to rest and, as he described, there was a “lot of time for a rest”.[23]
[23]T46, L18 – 19
41 Towards the end of March 2016, the plaintiff reverted to normal shift time.
42 At the time of his injury in 2007, the plaintiff confirmed that he saw his, then, general practitioner, Dr Zoran Ilic, in Altona, but had not seen that doctor for about “eight years”[24] and now attends Dr Gruba, who he considers to be a “lot better”.[25] He believed he had been seeing Dr Gruba for about eight years.
[24]T57, L8 – 9
[25]T47, L13
43 In general, the plaintiff described that in 2008 and 2009, he talked generally to Dr Gruba about his back, and sometimes he gave him the drops and other remedies. When it was put to the plaintiff that Dr Gruba had recorded that the first time that the plaintiff had presented with back injury was in August 2011, the plaintiff stated “That when I have a serious problem but he knows all about my medical problem”.[26]
[26]T48, L31 – T49, L1
44 When queried about any problems with his back before 2007, the following evidence was given:
Q:“Did you have any problems with your back before 2007, before the slip?---
A:Before 2007, no.
Q:When you say in your affidavit, ‘Over the next 20 years or so, from 1987, I’ve had a little bit of back pain as my back would play up now and then’, is that true or not?---
A:That’s true but that’s not something serious. I was young. In 1987, I know that, yes.
HIS HONOUR:
Q:Just give me an idea, you say in 2007 you had this incident and I think I understand your evidence, tell me if I’ve got this wrong, that generally going to Dr Gruba, you would have talked about your back. Is that what you’re saying?---
A:Yes that’s right. He know - he knows all about.
Q:Did he give you any treatment over that time?---
A:He did. He did give before, before 2011, yes.
Q:Just give me an idea again. After 2007, up to 2011, over those four years, roughly four years, how often were you getting your back pain? Were you getting it every day, once a week, once every couple of days?---
A:Back pain is always there. Sometimes more, sometimes less but my leg keep playing up. All depends what I do, how much I do, how much I walk, how much - not work, so yeah, depend on the – on the duties I do. And always I have – I always have to think. When I’m about to do something, I always have to think how I going to act, what I have to do to make sure not to hurt myself.”[27]
[27]T49, L10, T50, L4
45 The plaintiff confirmed that Dr Ilic sent him for a CT scan of his back in 2007 and he was told that he had a bulging disc at L4-L5. Furthermore, he was referred to physiotherapy for about one year, initially twice a week and later, once a week. Further, the plaintiff confirmed that he has received treatment from Dr Gruba, which consists of placing drops under his tongue, since 2007. Furthermore, Dr Gruba has prescribed Celebrex, but advised the plaintiff to only take them when he needs them. He believes that the Celebrex commenced in about 2011, although prior to then, he would use either Advil or Panadol.
46 The plaintiff also described being referred by Dr Gruba, who performed some type of therapy involving “magnetic things”, using something “like a jigsaw gun”.[28] Dr Gruba also performed acupuncture in relation to his lower-back condition from about 2011.
[28]T52, L11 – 12
47 The plaintiff also confirmed that he had seen another doctor, Dr Tim Bajraszewski, in Caulfield, on a number of occasions in 2007 or 2008, in relation to his back condition. The plaintiff described that that doctor ultimately moved from Caulfield to Brighton, and later transferred to Queensland. He also gave evidence that Dr Bajraszewski referred him for physiotherapy, which he believed was undertaken in about 2008 or 2009.
48 The plaintiff also gave evidence that, on occasion, he attends Dr John Whittaker, at the Millennium Clinic, for general medical conditions when it is very difficult to get an appointment with Dr Gruba on short notice. The plaintiff confirmed that Dr Whittaker is treating him for his shoulder injury and has sent the plaintiff for an ultrasound and also for an MRI scan of that shoulder.
49 The plaintiff confirmed that, shortly prior to the incident involving clearing the gypsum from the machine in 2011, his job as a plaster mill operator changed, becoming a lot heavier. The plaintiff gave evidence that he was not able to fully comply with the requirements of the job because of the problems that he had been having from 2007.
50 After the incident involving the cleaning of the gypsum hopper, he attended Dr Gruba, telling him about that particular incident and, generally, about his back. The plaintiff confirmed that the pain he experienced in his back and right leg in 2011, were in the same areas that he had been experiencing since 2007. In particular, the following evidence was given:
Q:“When you had, as counsel referred to it, the episode in 2011, the pain in your back, was that in the same area or a different area?---
A:The pain is the same.
Q:Did you have right leg pain at that time too?---
A:Yeah I got straightaway, yeah.
Q:Was the right leg pain in the same place as it had been before?---
A:Goes from the hip down to the calf muscles, stays there for a while and then after - - -
Q:But was that the same sort of pain as you - - -?---
A:All the time, same.
Q:Thank you.
A:And on the heel, itching and burning.”[29]
[29]T56, L27 – T57, L6
51 The plaintiff confirmed that on February 2016, he injured his left shoulder, for which he has been receiving some treatment. In this respect, the plaintiff said he estimated he would take Celebrex, maybe, sometimes a fortnight, sometimes once a week, depending on how he felt. He accepted that in warmer weather he may go two weeks without needing Celebrex, but in cold weather it is very bad (that is, his back). The plaintiff confirmed that he does take Dr Gruba’s “drops” every day.
52 The plaintiff gave this evidence when queried about the twelve-hour rotating shifts coming to an end:
Q:“What was the reason that you stopped doing the 12-hour rotating shifts in March of this year? Was it your shoulder?---
A:Shoulder and I want to go back on my job because I (indistinct) who get the works because my original position as now, I just help – the company ask me in October was you prepared to go train someone, but I’m that kind of person, I can’t go there and just sit and watch. I didn’t do that. I do some work, something what I can do and help the business.
HIS HONOUR:
Q:I just want to understand. You have told me about the left shoulder happening in – what - February of this year?---
A:Yes.
Q:And what happened in March? What happened then?---
A:The company ask me to go back on my - you can say, lighter job.
Q:A training job?---
A:No, not the training.
Q:Just a lighter job?---
A:The laboratory job.
Q:And is that where you have been since March?---
A:Yes.
Q:Why was it, or can you say as to why the company was talking to you in March about going back to that job, the laboratory job?---
A:Might be some site issue, whatever, that’s the company’s - - -
Q:I see?---
A:I didn’t go myself, the manager comes and says ‘Next week you go over there.’ Okay.
Q:All right. And you are just working normal shifts?---
A:Yes, eight hours from six to two.”[30]
[30]T60, L18 – T61, L11
53 The plaintiff did confirm that from October 2015 to April 2016, he was doing twelve-hour rotating shifts because he was training someone at the request of the defendant.
54 The plaintiff confirms that his wife works full time and they have two adult children at home. Sometimes he assists his wife going shopping, either to markets or to a supermarket. The plaintiff also confirmed that he was able to drive from his residence in Yarraville to see Dr Gruba in Camberwell – such driving taking twenty minutes, sometimes twenty-five to thirty minutes, depending on the traffic. He accepted that he can drive, but has difficulty over longer distances where he has to stop – for example when he attempted to drive to Bendigo or Echuca. In particular, he described how he and his wife, together with friends, would spend time in various places in the Victorian high country camping and walking around the Echuca area. He would go camping every couple of months with these friends and has not done that from about 2008, because of problems with his low back and right leg.
55 The plaintiff gave evidence that, in relation to walking, there are more days that he does not walk than walk and, when he does walk, he walks for about one kilometre, or a kilometre-and-a-half, when he needs to rest before walking back home.
56 The plaintiff was queried about ongoing symptoms, and the following evidence was given:
Q:“You say you had a constant pain in your back?---
A:Yeah, even now.
Q:You’re never free of pain in your back and what about the leg?---
A:The leg – the leg fluctuates. Sometimes very bad, sometimes not bad.
Q:But always some pain in your leg?---
A:Always some, yes, symptoms, especially the heel. Always burning and itchy all the time.
Q:The burning and the itching in your heel, what does – how does that affect your ability to walk?---
A:What do you mean?
Q:Does it affect your ability to walk?---
A:Sometimes I feel the heavy as well, the leg is heavier so I can’t walk and pain in the back, so I can’t.
Q:Does the burning and the itching in your heel affect your ability to walk?---
A:That one, no, no effect, but it affect me when I – when I got a heavy leg and sometimes I lost control of the leg too. Sometimes when I go up stairway, I hit a step. I loss control of leg.
Q:Do you get any symptoms in your right foot?---
A:That’s - that’s all the right foot.
Q:Sorry, in your left your foot?---
A:No.
Q:None in left foot?---
Q:No.
HIS HONOUR:
Q:So it’s always been just in the right leg and foot, has it?---
A:Yeah, always on the right,
Q:Yes. Thank you.
MS FORBES:
Q:The problem with your back means it is difficult for you to bend, is that so?---
A:Bad.
Q:Bend?---
A:Twist. Squat. Yeah, everything. Whatever action I have to do, I think how I going to move. When I have to lift something light from the – from the ground, I have to - from the knee. I have to bend my knee, not my bad (scil back).
Q:What sort of weights do you think you are able to lift if they are at bench height? So not bending from the ground. What sort of - - -?---
A:Maybe like this one, (indistinct) 10 kilo but if I go in front of me, I can’t do even 2 kilo.
HIS HONOUR:
Q:Sorry, I just want to understand that. If you had 10 kilos in a bucket, you could lift 10 kilos if it was beside you?---
A:Not – not on the side. Not from the ground. This height.
Q:I see, from that height there?---
A:Yea.
Q:But if the 10 kilos was out in front of you?----
A:If it’s a three, 4 kilo in front of me, I can’t.
Q:I see. Yes, thank you.”[31]
[31]T66, L13 – T67, L24
57 When it was put to him that he had told Dr Bloom (one of the doctors retained by the defendant) that he was “managing and coping well” in his work as a quality control product tester, the plaintiff stated:
“I manage but sometimes I struggle but when I get home, I have to – have to have a rest, yeah.”[32]
[32]T68, L6 – 7
58 The plaintiff also described that last year, his wife wanted drip lines around a vegetable patch in the backyard and he put the water drip system in, taking about four hours rather than 45 minutes. In particular, he described how he had to kneel down on his knees rather than do any constant bending. He described the vegetable patch as about 4 metres by 6 metres.
59 The plaintiff also accepted that he told Dr Bloom that he estimates that he is able to lift and carry loads weighing up to 10 kilograms if at bench height but not from the bending position. Furthermore, he tends to avoid bending and twisting because he gets pain like a razorblade can go across his back. In particular, he described an incident about two weeks ago when his wife came home from work and he made coffee for her and when putting the coffee on the coffee table, he dropped both cups because of the pain in his back. The experience of that pain has been “many many times”.[33]
[33]T99, L28
60 Under cross-examination, the plaintiff described that since 2007, his day-to-day activities have been affected by his ongoing low-back pain. In particular, he describes how he always has to be careful about doing something or moving something and tries to avoid bending. Furthermore, he is careful getting in and out of cars. Similarly, when putting on shoes, he has a long shoehorn to assist in putting on his shoes.
61 When queried about whether there was any lasting change in the level of pain after 2011 compared to prior to that, the plaintiff noted that the level of pain depends on what he is doing. When queried whether that has been the case since 2007, the following evidence was given:
Q:“And that’s been the case all the way through?‑‑‑
A:Yeah, all the way through. For instance, last week, we had one trial at work. It last for four hours and every 15 minutes I have to go up, down, up, down, get the (indistinct) and on Saturday, Sunday, I was three-quarters dead man.
HIS HONOUR:
Q: What?---
MR MIGHELL:
Q: A three-quarters dead man.
HIS HONOUR:
Q: Three-quarters of the man, yes?‑‑‑
A: My – my back killed.
MS FORBES:
Q: You say you have to move carefully?‑‑‑
A: Yeah, that’s right.
Q: Do you move slowly?‑‑‑
A: Slowly, yes.
Q:You wouldn’t – if you were running late, you wouldn’t go running down the street, for example, would you?‑‑‑
A:I don’t take that risk.
HIS HONOUR:
Q: Sorry, what was that?---
MS FORBES:
A: ‘I don’t take that risk.’
HIS HONOUR:
Q: Don’t take that risk?---
A: Yes.
MS FORBES:
Q:So you would stop and wait for traffic to be clear rather than run across the road top (sic) beat traffic?‑‑‑
A:Yes. Look, all depends whether (indistinct) little bit faster, maybe, but no run, no.”[34]
[34]T70, L27 – T71, L17
62 The plaintiff described that for the last couple of years he has not gone to Collingwood football matches because it was too cold and because of back pain, although he accepted that he watches them on television and follows the fortunes of the club. Similarly, with soccer, he used to go and watch all the time, even training on Thursdays, but not anymore because he cannot stand for too long because of his back problems.
63 The plaintiff described how, in his present job, he is able to walk, sit down and rest if necessary.
64 Under cross-examination, the plaintiff was shown a video taken of him on 1 and 2 April 2016. The total amount of video extended for about 9 minutes, with most of the video taken on 1 April 2016.
65 The video opens on 1 April 2016 when the plaintiff is driving to attend a doctor at the Millennium Clinic. He is seen to get out of a car and then commenced to walk with what would appear to be an x-ray folder in his hand. When at a roadway, he jogs across the road to avoid traffic and then when on the other side, performs what could be described as a very fast walk or a jog for a short period to get to the medical clinic. Later, he is seen to do some partial bends into the back of his car, placing foodstuff he has bought from a local market into his car and get in and out of the car on several occasions. On 2 April 2016, he was again seen getting into the car and driving for a short distance.
66 I believe it is worthwhile to detail the evidence given by the plaintiff in respect to such video:
Q:“Mr Culic, that is you in that video film, isn’t it?‑‑‑
A:Yes.
Q:On 1 April, the first part of that film, we see you - do you know where you were going to on that day?‑‑‑
A:I think that was a doctor.
Q:At the Millennium Clinic?‑‑‑
A:Yes.
Q:Were you carrying some X-rays or scans or something in your hand?‑‑‑
A:Yes, yes.
Q:You had driven yourself and parked the car to go to the medical appointment?‑‑‑
A:Yes.
Q:We see you cross a couple of roads on the way?‑‑‑
A:Yes.
Q:And we see you run across the roads?‑‑‑
A:No, that’s not run.
Q:You don’t say that's a run?‑‑‑
A:No.
Q:How would you describe it?‑‑‑
A:What’s a run?
Q:How would you describe it?‑‑‑
A:Just a bit of faster walking, that’s all.
…
MS FORBES:
Q:That faster walking was to beat the traffic, wasn’t it?‑‑‑
A:Whatever. Sometimes you get the - like all of us, we get in states to test ourselves as well, yes.
Q:To test yourself?‑‑‑
A:Yes, many times. At work as well.
Q:So you were running - sorry, you were walking fast across the road to test yourself?‑‑‑
A:I - I don’t say that I - I test myself, but that’s not running. To me, that’s not – that’s not running.
Q:When we see you going along the footpath, you are maintaining that same fast pace, aren’t you?‑‑‑
A:No, different.
Q:You say it’s different?‑‑‑
A:Different.
Q:Do you say that that is running or not - along the footpath where we saw you?‑‑‑
A:No, that’s not running at all.
Q:I want to suggest to you that you are certainly moving at a pace that is faster than walking?‑‑‑
A:Possibly, yes.
Q:And I want to suggest to you that, at the very least, it would be described as a jog. Do you agree with that description?‑‑‑
A:No. That cross the road, maybe you can call that a job because it’s a short distance, but there along the street, no.”[35]
[35]T73, L25 – T74, L31
67 When queried as to whether or not the videos showed any restrictions in his movements, the plaintiff ultimately stated:
“Like I say, sometimes - sometimes my leg, as I always say, the pain is there and it fluctuates up and down. Some days you feel better, sometimes worse. I’m not a crippled person and can say, ‘No, I cannot do that.’ They said, ‘You go for shopping?’ Yes, I do, and I do little shopping, not big ones, and if you have something – some more groceries, get more – more than 5 kilo, have to go three times, and go four.”[36]
[36]T75, L24 – 31
68 When queried about the video which seemingly did not reveal him hanging onto anything getting in and out of the vehicle, the plaintiff gave evidence that he does not do that all the time and although he has back pain, there is a variation in the severity of the back pain. The plaintiff stated that he would not describe reaching in and removing something from the backseat of the car as “bending”, which he described as reaching down towards the ground. In this sense, the plaintiff commented “many times” he has to do that type of movement of his back as shown in the film but he is unable to bend right down towards the ground.
69 The plaintiff confirmed that he considered that the incident involving his fall from the front-end loader occurred probably on 8 February 2007. When queried as to why he did not see Dr Ilic until 12 August 2007, the plaintiff responded that he considered that he had complained about his back to Dr Ilic prior to that time but the record on 12 August 2007 was at a time when he thought the back pain was getting worse and he was sent for a CT scan and x-ray. In particular, the plaintiff stated this when queried by the Court:
A:“I believe I see him before that but maybe no - he just take that serious when I talk - when I complain and say to doctor about incident and things are getting worst because it was just fresh so things are getting worse and I complain and say, ‘Look Doctor, I’ve got a problem’. I didn’t have a leg problem straight away. I got the back problem straight away. Then after a period of time I believe things start getting worse and I start feeling the problem in my leg as well.
MS FORBES:
Q:Yes. The leg problem didn’t happen in February at the time that you fell off the front end loader, it happened after that, didn’t it?‑‑‑
A:After that - after I start feeling the pain in the leg afterwards. In that - in that moment I can feel maybe pain when I drop on it but the worst pain was in my low back. Then afterwards, leg started - I start getting leg problems as well.”[37]
[37]T82, L14-32
70 When re-examined, the plaintiff was queried as to whether his present duties involving laboratory work are “modified duties”, the plaintiff stated:
“You can say like (indistinct) modified duties because it’s not much labour work involved, no. Or if there’s some, the person I train he do.”[38]
[38]T84, L16-18
The evidence of the treating doctors
71 Before referring to the evidence of the treating doctors, I make reference to the various radiological studies relied on by the plaintiff:
(a)Dr Zoran Ilic arranged for the plaintiff to undergo a plane x-ray and CT scan of his lumbar spine on 5 October 2007. The plane x-ray revealed a slight tendency to lumbar scoliotic curve convex to the left, with the L4-5 disc space moderately reduced in height. The CT scan of the lumbar spine was reported on as follows:
“A L4-5, there is diffuse disc bulging. This is more marked at the left para-central region. The disc material is compressing the thecal sac. No free disc fragment is suggested
…
There are some degenerative changes at the left L4-5 apophyseal joints. No pars defects are evident.”[39]
[39]See exhibit 4 and, in particular, a report from Dr Ilic, which contains the CT scan
(b)Dr T Bajraszewski referred the plaintiff for a plane x-ray of the lumbar spine on 4 November 2010. The radiologist reports that there was moderate disc space narrowing at L4-5;[40]
[40]See exhibit 4, at PCB 41
(c)The plaintiff was referred for a CT scan of his lumbar spine on 3 August 2012. The radiologist reported that at the L4-5 level, there is moderate annular bulge with effacement of the thecal sac;[41]
(d)The neurosurgeon, Mr Timms, referred the plaintiff for an MRI scan of his lumbar spine, which was undertaken on 1 July 2013. The radiologist reported, in particular, that:
“L4-5, broad based poster disc bulge with a posterior central
annular tear, facet joint and ligamentum hypertrophy.
Central vertebral canal is adequate.
Mild narrowing of both exiting foramina and moderate narrowing
of the subarticular recesses with contact of the traversing L5
nerve roots.”[42]
[41]See exhibit 4, at PCB 42
[42]See exhibit 4, at PCB 43
72 The plaintiff relies on a report from his then treating doctor, Dr Zoran Ilic, dated 5 December 2007.[43] Dr Ilic reports that the plaintiff presented on 12 August 2007 complaining about lower-back pain which had been occurring, and worsening since he slipped off the second-last rung of a frontend loader at work on 8 February 2007. At that time, Dr Ilic obtained a history that the plaintiff was employed as a plaster mill team leader and his normal duties consisted of monitoring production via computers in a control room, with occasional manual checking and sampling of processors. He was also informed that on “rare occasions” the job of the plaintiff would require the need to operate a frontend loader, or to assist with manual labour to clean up any waste material.
[43]See exhibit 4
73 Dr Ilic also obtained a history that the main reason that the plaintiff did not report the problem earlier was that he hoped that he would improve and then he would recover from his injury.
74 Dr Ilic noticed that the pain in the back and the leg discomfort was continuing, as were his limited range of back movements. The plaintiff also attended on 4 October 2007 with the same problem, at which time a WorkCover Claim was lodged. Examination at that time revealed his lumbosacral back region to be very tender on examination, with associated reduced range of movements of his back and hips.
75 The plaintiff was treated with anti-inflammatory medication, analgesia, and an exercise program and an x-ray and CT scan were undertaken on 5 October 2007, which Dr Ilic noted demonstrated diffuse bulging at the L4-5 level, with disc material compressing the thecal sac. Dr Ilic also referred the plaintiff to physiotherapy. Dr Ilic notes:
“Mr Culic has strong work ethics and determination to do his work effectively and diligently. I think his future work capacity and return to unrestricted work will depend on his response to Physiotherapy and medications mentioned previously. … .”[44]
[44]See exhibit 4
76 The plaintiff also relies on a number of reports from his present treating general practitioner, Dr Zenon Gruba. Such reports are dated 4 August 2011, 19 October 2012, 24 February 2014, 15 December 2014 and 7 June 2016.[45]
[45]See exhibit 3, at PCB 29 – 36
77 Dr Gruba carries on practice at the Whole Health & Wellness Institute. Medically qualified, he also has qualifications in naturopathy, herbal medicine, nutrition, and integrative medicine. Several times through the course of his reports, Dr Gruba makes the point that he does not practise conventional medicine, and in particular, asserts that he does not do “clinical history taking and examination in a manner that suits a work care (sic) claim environment”.[46]
[46]See exhibit 3, at PCB 30
78 Dr Gruba reports that the plaintiff first presented to him with his “back injury” on 22 August 2011, at which time the plaintiff was complaining of “lumbar back ache that radiated numbness into his right heel”.[47] Dr Gruba obtained the history that any lifting or carrying caused such pain.
[47]See exhibit 3, at PCB 29
79 Examination at that time revealed that flexion was limited to 90 degrees, and all other lumbar movements were stiff and uncomfortable. The plaintiff had plantar fasciitis and myofascial trigger points in his iliacus and para-lumbar muscle. Dr Gruba treated the plaintiff with myofascial treatments for the trigger points and symptoms, together with acupuncture. Later, he referred him to the neurosurgeon, Mr Craig Timms.
80 In a report dated 4 August 2011, Dr Gruba notes:
“No doubt his employment as a labourer would have contributed significantly to his disability.
Depending on how well he does on the oral analgesics and his new position at work, Mr Culic will have [to] make the hard decision as to whether he lives with his disability or chooses surgery.”[48]
[48]See exhibit 3, at PCB 29
81 In a later report dated 19 October 2012, Dr Gruba details various consultations with the plaintiff where it was revealed he had reduced lumbar movements and various right leg symptoms. He continued to be treated with acupuncture and myofascial treatment. At that time, Dr Gruba again expressed the opinion that the plaintiff suffers from myofascial triggerpoint pain as a result of his labouring work. Dr Gruba considered that such condition is “notoriously relapsing” with “even minor or silly movements”. He considers such condition to be not the same as arthritis or disc disease.
82 In a later report dated 24 February 2014, Dr Gruba also detailed a history where his activities would exacerbate his low back and right leg pain, and again stressed that:
“The condition is most certainly due to Mr Culic working as a labourer over several years. Like any machine that is constantly loaded to its capacity, begun to wear our (sic).”[49]
[49]See exhibit 3, at PCB 34
83 At that time (when Dr Gruba had obtained the opinion from the neurosurgeon, Mr Timms), Dr Gruba diagnosed the plaintiff to be suffering from a broad-based L4‑5 disc prolapse with vertebral canal stenosis. He considered he would never return to his pre-injury employment, and “his fitness for alternative employment should be assessed by a physiotherapist skilled in this area”.
84 In a later report dated 15 December 2014, Dr Gruba describes ongoing treatment involving acupuncture and myofascial therapy, analgesics, adequate rest, and working within his capacity for employment. He described that his aim (that is, Dr Gruba’s) was to keep the plaintiff at work until he could retire on the aged pension. Dr Gruba noted the plaintiff also uses a “simple lecture laser pointer” to treat the trigger points and to help alleviate pain. Furthermore, Dr Gruba notes that the plaintiff has been treated with homeopathic treatments that have anti-inflammatory and analgesic actions. Such treatment avoids pharmaceutical products which can cause peptic ulcers and addiction.
85 Last reporting on 7 June 2016, Dr Gruba noted that the plaintiff had also suffered some type of injury to his left shoulder which required acupuncture and other treatment. Dr Gruba also noted that the plaintiff continued to suffer from “non specific lumbar pain” due to many years of heavy labouring.
86 The plaintiff also relies on a report from the neurosurgeon, Mr Craig Timms, who examined him on referral from Dr Gruba. In a letter to Dr Gruba dated 2 August 2013,[50] Mr Timms notes that he reviewed the plaintiff on that day and had available the MRI scan undertaken on 1 July 2013. In particular, Mr Timms states:
“… His recent MRI scan is very helpful. He has persistent back pain and sciatica and now when he does even minimal things, he is getting symptoms even bending to look at things.
The recent MRI scan reports stenosis in his spine from broad-based disc bulges particularly at L4‑5, which I think is where his symptoms are coming from.
If exercises and physio do not resolve his symptoms, given that there is structural stenosis. I think he may benefit from a lumbar laminectomy at these levels. … .”[51]
[50]See exhibit 3, at PCB 40
[51]See exhibit 3, at PCB 40
The Medico-legal reports relied on by the Plaintiff
87 The plaintiff relies on the following medico-legal reports:
(a)Reports from the neurosurgeon, Mr David Brownbill, who examined the plaintiff on 12 June 2013[52] and on 8 June 2016;[53]
(b)Reports of the orthopaedic surgeon, Mr Thomas Kossmann, who examined the plaintiff on or about 21 February 2014[54] and on 4 June 2016;[55]
(c)Report of the interventional pain specialist and specialist anaesthetist, Dr Richard Sullivan, who examined the plaintiff on 7 June 2016;[56]
(d)Report of the neurosurgeon, Professor Richard Bittar, who examined the plaintiff on 11 June 2016.[57]
[52]See report dated 14 June 2013, exhibit 5, PCB 44
[53]See report of same date, exhibit 5, PCB 50
[54]See report of same date, exhibit 5, PCB 55
[55]See report of same date, exhibit 5, PCB 61.1
[56]See report of same date, exhibit 5, PCB 62
[57]See report of same date, exhibit 5, PCB 66
88 When initially seen by Mr Brownbill on 12 June 2013, the plaintiff gave the following history in relation to the occurrence of back injury:
(a)In 1987, several sheets of board were piling up on the transfer table and cross belt. He and a colleague tried to break up the sheets and pull them apart and throw them on the floor. When doing that, he slipped and stumbled backwards, twisting to prevent striking his head, and, as doing so, felt a sudden onset of low-back pain. The plaintiff did not take any time off work and did not undergo any investigations. Since then, pain recurred in bouts every few weeks, particularly with the different physical activities required. He did not take any time off work or undergo any investigations;
(b)In 2007, he was operating a front-end loader as a mill operator when he slipped on the wet surface, falling from the standing position onto his right heel, after which he noted pain in his low back in the same position as previously but much more severe. Furthermore, a few weeks later, there was pain radiating down the back of his right leg. He attended his local doctor but took no time off work;
(c)On 4 August 2011, he was using a heavy two-metre pipe with both hands and the pipe running across his shoulder, thrusting it forward to break up gypsum pieces at the bottom of a hopper. At the end of a long shift, he developed pain in his neck and right shoulder, and the low-back pain had increased.
At the time of examination, Mr Brownbill noted that the plaintiff was working full time on “light duties” because of his back problem and was not receiving physical treatment but was taking Celebrex as required. He suffered low-back pain all the time, with fluctuations, and could have sharp overtones. Further, he suffered burning pain in the right heel all the time, and right leg pain from the buttock down to the back of the thigh and calf in bouts of two to three days almost every week or so.
When examined, Mr Brownbill noted that the plaintiff was “alert and cooperative with some circumlocution but without embellishment”. Mr Brownbill had available to him the x‑ray of the lumbar spine taken on 4 November 2010, together with the report of the CT lumbar spine scan undertaken on 3 August 2012.
89 Examination revealed slight restriction of thoracolumbar spinal flexion with no neurological abnormality of the lower legs or signs of radiculopathy. Mr Brownbill did note that radiological examination indicated a single level L4‑5 degenerative change (although at that time he did not have the MRI scanning).
90 In his first report, Mr Brownbill stated:
“On the information provided he had some intermittent fluctuations of low back pain for several years but was able to carry on essentially his normal job.
On the information provided there was much increase of low back pain and later right leg pain following the fall onto his foot in 2007 which has continued.
Falls onto the feet with associated axial forces to the spine are notorious for damage that may occur to structures about the spine including lumbar intervertebral discs.
On probability he has sustained injury to the region of the L4‑5 disc but I am unable to state with certainty from a neurosurgical point of view the exact anatomical structures involved. It may involve facet joints or other soft tissues as well as possibly the L4‑5 disc. The descriptions indicate that he does have ongoing mechanical pain.
He should in the future avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.”[58]
[58]Exhibit 5, at PCB 47
91 When later examined by Mr Brownbill on 8 June 2016, Mr Brownbill said it was from 2007 that the plaintiff received ongoing bouts of back pain rather than from the earlier injury in 1987 or 1988 (as he reported in his first report).
92 At a second consultation, the plaintiff complained of pain in his right foot and calf, which had been coming and going since 2007, together with ongoing low-back pain, which increased with activity, but otherwise was the same as when last seen.
93 Again, on examination, Mr Brownbill noted that the plaintiff was co-operative and straightforward in his presentation, with no embellishment or abnormal illness behaviour. In his report dated 8 June 2016, Mr Brownbill noted that the plaintiff, essentially, had a full range of thoracolumbar spinal movements, with no objective neurological abnormality of the lower limbs and no signs of radiculopathy.
94 At that stage, he had available the MRI scanning, which confirmed the presence of an L4‑5 lumbar intervertebral disc derangement with tear and bulge and associated facet joint and ligamentum hypertrophy.
95 Based on that further information, he confirmed that the back condition of the plaintiff had stabilised, and that, as a result of his fall on the right foot in 2007, axial forces had resulted in a lumbar spine injury at the L4‑5 disc level. Again, he considered he should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.
96 When Mr Kossmann initially examined the plaintiff on 21 February 2014, he obtained a history that the first episode of lumbar back pain experienced by the plaintiff was in 1987 when he pulled a 25-kilogram sheet of plasterboard during the course of his employment with the defendant. The plaintiff informed Mr Kossmann that he did not need any medical attention or treatment or time off work, and his symptoms “fully resolved”.
97 The plaintiff also gave a history of the incident in 2007 when he stepped off the front-end loader at work, falling approximately one metre to the ground, landing on his feet. He informed Mr Kossmann that he suffered a recurrence of the lumbar pain which was “significantly more severe than in 1987 and in addition, he complained of pain radiating down the anterior aspect of his right thigh and down the posterior aspect of his right calf to the level of the heel”. The plaintiff informed Mr Kossmann that although his symptoms improved somewhat, he complained of intermittent lumbar back pain and constant right lower limb pain that fluctuated in intensity, although he continued to work with the assistance of analgesia.
98 The plaintiff also told Mr Kossmann that on 4 August 2011, the plaintiff “injured his cervical neck, right shoulder and lumbar spine during the course of his employment” when he was repeatedly required to hit a wall with a heavy metal bar. At that time, his lumbar pain was associated with pain radiating down the anterior aspect of his right thigh and down the posterior aspect of the right calf to the level of the heel, as previously noted.
99 In general terms, the plaintiff told Mr Kossmann that his back pain fluctuates in intensity, as do his right leg symptoms, depending on the intensity of any physical activity which he attempts.
100 After making an examination and referring to various radiological materials, Mr Kossmann diagnosed the plaintiff to be suffering discogenic and mechanical back pain, lumbar spine, on the basis of L4‑5 broad-based posterior disc bulge with a posterior central annular tear causing mild lumbar spinal canal stenosis and L4‑5 and L5‑S1 joint hypertrophy.
101 Ultimately, in this context, Mr Kossmann, in response to a series of questions, was of the opinion that the plaintiff suffered a cervical injury, right shoulder injury and lumbar spine injury during the course of his employment in or about August 2011 when using a heavy metal bar to hit a wall. Mr Kossmann noted that this is in the context that the plaintiff had suffered intermittent lumbar back pain and constant right lower leg pain since the incident in 2007. Mr Kossmann considered the plaintiff unfit for any work which involved bending, twisting, and lifting, or carrying heavy loads, although he was capable of performing the work in the laboratory. He considered his prognosis was guarded, and he should have ongoing pain medication, anti-inflammatories, physiotherapy and hydrotherapy.
102 When recently reviewed on 4 June 2016, Mr Kossmann again made a physical examination of the plaintiff, obtained further history from him, and had available a variety of medical reports and, again, all the radiological material. Mr Kossmann also obtained a history of the plaintiff’s suffering left shoulder pain during the course of his employment, which had resulted in an MRI scan of the left shoulder on 4 April 2016, after which he had diagnosed he was suffering from capsulitis of the glenohumeral joint. He was treated with a cortisone injection for this condition, which has helped to a certain extent.
103 Mr Kossmann expressed similar views to those expressed in his earlier report in relation to the low back injury.
104 When examined by Dr Richard Sullivan on 7 June 2016, the plaintiff informed him that:
(a)He first suffered low-back pain in 1987 when “pulling a heavy load”. The plaintiff apparently stated that the pain persisted for some weeks but then settled to an intermittent, inducible pain.
(b)In 2007, he stepped off the end of a front-end loader and slipped approximately one metre, causing him to suffer a sudden onset of low-back pain in an identical location to that experienced in 1987, and over a period of time, he started to develop right-sided leg pain.
(c)In August 2011, he was manipulating a heavy pipe during a 12‑hour shift when he developed posterior cervical spine pain, right-sided shoulder pain, and also more low-back pain and right-sided leg pain.
105 Dr Sullivan also gave a history that in February 2016, the plaintiff developed left-sided shoulder pain, causing him to undergo an MRI scan of the left shoulder on 4 April 2016 and an ultrasound of the left shoulder on 20 March 2016. Dr Sullivan noted that during examination, the plaintiff presented as “wholly believable” and there was no pain behaviour during the interview or examination. After such examination, and bearing in mind the history, Dr Sullivan was of the opinion that the plaintiff suffered chronic low-back pain, chronic right-sided sciatica, and spinal canal stenosis. He also suffered problems in his left shoulder.
106 Dr Sullivan opined that “not only the long duration of arduous physical work but also recurrent work place injuries has resulted in the aforementioned diagnoses” that he made. Dr Sullivan accepted that the plaintiff would have ongoing social and functional impairments consequential on his chronic pain, brought about by his work-related injuries.
107 When examined by Professor Bittar on 11 June 2016, the plaintiff gave a history that:
(a)He sustained an injury at work in 1987 when pulling a heavy load of plasterboards off a transfer table. At that time, he experienced a sudden onset of pain in his lower back, was treated conservatively, and the pain improved. The plaintiff informed Professor Bittar that his pain eventually settled completely and he was able to continue working normal duties;
(b)His “current symptoms” followed an injury at work in August 2007 when he stepped off the end of a front-end loader onto a floor that was muddy, wet, and slippery. At that time, he experienced a sudden onset of low-back pain which was associated with the development of right leg pain over the next few days;
(c)His condition deteriorated “significantly” on 4 August 2011, when he was using a heavy pipe to smash the side of a hopper repeatedly. At that time, he developed neck pain and right shoulder pain, and his low-back pain and right leg pain deteriorated.
108 At the time of the examination, the plaintiff informed Professor Bittar that he experiences constant low-back pain which radiates intermittently down his right leg into his hamstrings and calf into his right heel. His back pain has an average severity of 5 out of 10 and his leg pain has an average severity of 6 to 7 out of 10.
109 His pain is exacerbated by standing for more than 20 minutes, sitting for more than 45 minutes, bending or twisting, and lifting more than 5 kilograms.
110 The plaintiff informed Professor Bittar that his current treatment consists of daily herbal medications (prescribed by Dr Gruba) and Celebrex as required. The plaintiff has physiotherapy intermittently for his pain, but does not have any other treatment.
111 After obtaining such a history, making an examination, and reviewing various radiological investigations, Professor Bittar opined that the plaintiff suffers from the following:
(a)Aggravation of lumbar spondylosis;
(b)L4‑5 intervertebral disc prolapse with spinal stenosis;
(c)Mild right L5 radiculopathy.
112 Professor Bittar was of the opinion that the plaintiff’s employment with the defendant has been, and remains, a significant contributing factor. Such back condition permanently incapacitates him for his full pre-injury duties, although he does have the capacity to work full time in a very sedentary role as he was then performing. Furthermore, Professor Bittar was of the opinion that the plaintiff is likely to suffer from significant pain and disability into the foreseeable future. Although he has been able to continue working despite his symptoms, the work-related lower back injury has had a very significant detrimental impact on all aspects of his life, and has resulted in a significant reduction in quality of life.
The Medico-legal reports relied on by the Defendant
113 The defendant relies on the following medico-legal reports:
(a)A report of the general surgeon, Mr Peter Battlay, who examined the plaintiff on 14 November 2007;[59]
(b)A report of the general surgeon, Associate Professor Anthony Buzzard, who examined the plaintiff on 28 August 2008;[60]
(c)Reports of the occupational physician, Dr Mary Wyatt, who examined the plaintiff on 29 September 2011;[61]
(d)Reports of the orthopaedic surgeon, Mr Clive Jones, who examined the plaintiff on 26 July 2012;[62]
(e)Reports of the orthopaedic surgeon, Mr Richard Pease, who examined the plaintiff on 23 September 2014[63] and on 21 March 2016;[64]
(f)Reports of the occupational and environmental physician, Dr Michael Bloom, who examined the plaintiff on 3 March 2015[65] and on 26 April 2016.[66]
[59]See report dated 15 November 2007, exhibit C, DCB 3
[60]See report dated 30 August 2008, exhibit C, DCB 7
[61]See report of same date, DCB 14, and subsequent letter dated 26 November 2012, DCB 20
[62]See report dated 27 July 2012, exhibit C, DCB 22, and also see further letter dated 23 September 2012, DCB 26
[63]See report of same date, exhibit C, DCB 28
[64]See report of same date, exhibit C, DCB 37, and see also supplementary report from Mr Pease dated 3 June 2016 at DCB 47
[65]See report of same date, exhibit C, DCB 49
[66]See report of same date, exhibit C, DCB 60, and see also supplementary medical reports of Dr Bloom dated 7 June 2016, DCB 69, and 19 June 2016, DCB 72
114 As already noted, Mr Battlay examined the plaintiff on 14 November 2007, some nine months after the incident of injury with the defendant on 8 February 2007. At the time of the consultation, the plaintiff gave a history that his then duties with the defendant were not “physically demanding”, but on occasion he must relieve other workers or become involved in emergencies.
115 In particular, he told Mr Battlay that in the “late 1980s” he twisted his back on the job, and, although the injury was reported, no claim was made, and he had “no ongoing problems subsequently”. Also, he gave Mr Battlay a history of the incident on 8 February 2007 describing how he had been on the front-end loader and was getting off when his right foot slipped and he fell from a height of about 50 centimetres, jarring his back in the process. The plaintiff described that initially, there was pain in his back, but “slowly it spread to his right leg”. In particular, he described, at the time of the consultation, the pain was coming and going, but gradually getting worse. At the time of the consultation, he described suffering sometimes low-back pain at the L5 level but mainly in the right leg involving the calf and the heel. His condition is worse if he sits or stands for too long.
116 On examination, Mr Battlay notes that the plaintiff demonstrated “normal affect”. At the time of the examination, Mr Battlay had the CT scan undertaken on 5 October 2007.
117 Ultimately, Mr Battlay opined that the plaintiff demonstrated some restriction of back flexion but no radiculopathy or sciatic nerve root irritation. He considered that most probably the plaintiff suffered from an L4‑5 disc derangement with referred pain.
118 When examined by Associate Professor Buzzard on 28 August 2008, the plaintiff gave a history that he “may have had some back pain in or about 1988 or thereabouts” that was related to work. He reported he did not have time off with that, and the pain only lasted a couple of weeks, after which he never had back trouble at any time. In particular, he described the incident in February 2007 when he slipped from the front-end loader, landing on his right foot, whereafter the pain was in his low back and extending down the right leg.
119 After making an examination and having access to the then radiological material, Associate Professor Buzzard stated:
“I think that Mr Culic did suffer from a soft tissue injury to his low back region as a result of the incident of February 2007. It is however peculiar that there was no involvement of his right leg with pain until about September 2007 despite there not having been a specific accident or injury. The involvement of his right leg with pain does suggest a disc prolapse with right sided sciatica albeit that that is not demonstrated radiologically. There is however disc bulging to a significant degree at L4/5 with some loss of height at the L4/5 disc. In other words, I think that Mr Culic does have discogenic pain. Accepting the validity of the history that he provided, I think that this has emanated from the initial injury of February 2007 with a subsequent spontaneous worsening in September 2007.”[67]
[67]See exhibit C, at DCB 10–11
120 When seen by Dr Wyatt on 29 September 2011, the plaintiff gave a history that he first developed back problems in 1987 when he partially fell and sustained a jarring episode. At that time, he developed back pain, but there were no investigations or treatment undertaken. He stated that over the next twenty years, he had some ongoing back pain, and his back would play up intermittently – although there were no further investigations or treatment.
121 The plaintiff also informed Dr Wyatt of the incident in February 2007 and described how he experienced significant back pain, together with right leg pain. The plaintiff also gave a history to Dr Wyatt that in July 2011 he was repeatedly hitting a device to remove damage to wet product, and when so doing suffered soreness in his “right neck and upper back”. At the time of examination, the plaintiff complained of low-back soreness on the left side, extending into the back of the right leg, with a burning sensation in the right heel. He generally had soreness in the right leg, and his symptoms were worse with bending and squatting. He was having no active treatment at that time, although working modified duties.
122 After making the examination, and having available an x‑ray of the lumbar spine taken the year before, Dr Wyatt made a diagnosis of “chronic low back pain” with referred pain into the right leg but no significant sciatica. Dr Wyatt noted that the plaintiff had longstanding back problems, although she did not have “the impression” that he had a significant aggravation of his low-back pain in July 2011; it was more likely to be a flare-up of the underlying back pain. She did consider that any problems that he complained of in relation to the neck and right shoulder were new injuries arising from the July 2011 incident.
123 The plaintiff was examined by the orthopaedic surgeon, Mr Clive Jones, on 26 July 2012. On that day, a history was obtained from the plaintiff that he was having difficulty coping with a restructured job which had taken place recently. In particular, the plaintiff gave a history to Mr Jones of suffering a low-back injury in February 2007 when he slipped and fell. At that time, he described developing low-back pain and pain in the right leg, which was investigated and a disc problem revealed. Symptoms had never fully resolved since that date, with there being a recurrence of significant back symptoms in July 2011, also accompanied by some pain in the neck and right shoulder area.
124 At the time of examination, the plaintiff complained of backache and right leg pain which involved the right calf and heel, with a burning sensation in the foot, with intermittent tingling and numbness. Mr Jones noted that current treatment consisted of visits to the Health & Wellness Centre for monthly acupuncture (which were self-funded), and Nurofen as an analgesic.
125 Mr Jones noted on examination, that the plaintiff “impressed as a genuine person”. At that stage, Mr Jones did not have access to any radiological studies.
126 In his report, he opines that from a clinical point of view, the plaintiff had persistent discogenic backache, with physical signs suggesting disc pathology and nerve root irritation, producing pain in the right leg. Mr Jones was of the opinion that such “injury” dated back to February 2007, with a recurrence of pain “last year” – that is, 2011.
127 Mr Jones considered that the plaintiff was clearly struggling with the heavier aspects of his employment, and that he was not capable of performing absolutely all of his current duties, although capable of lighter work. He considered that the likely causation of his restriction in his capacity for work was the presence of ongoing symptoms from degenerative protrusion of the lumbar disc.
[89]T74, L5
[90]See generally T74
[91]See generally T79 – 80
188 I make the following findings of fact:
(a) The plaintiff is a sixty-year-old married man who migrated to Australia on 28 June 1979, after which he worked on a production line at Toyota, assembling car parts for a few months. In about December 1979, he commenced working as a contractor, performing maintenance for the defendant, and on or about 7 July 1980, he commenced full-time work with the defendant as a plasterboard operator;
(b) Although not precisely clear, the cross-examination of the plaintiff would suggest that over the course of his employment with the defendant, the plaintiff has performed a variety of roles. When he commenced with the defendant, he was employed as a paper pulp operator for about three or four months; he was then employed as a plaster machine operator, working on various parts of the machine over time; from about 1990 to 2000, he worked as a laboratory assistant; he was then employed as an assistant plaster mill operator, and later as a plasterboard operator, which continued to about 2010, when several jobs were combined and his workload increased. From about August 2011, he was performing light duties and in particular, from October 2013, he has been working in the laboratory as a full-time product tester, which is not a physical job. His role in the laboratory was interrupted in October 2015, when he was requested by the defendant to train a new worker as a plaster mill operator and he continued to do that work until April of 2016, when he moved back to the laboratory. Since March 2016, he has worked normal shifts of eight hours per day and finds that he can cope with the work as a product tester in the laboratory, as such work is light and he is able to sit and move around, although he has increased pain by the end of the day;
(c) In or about 1987 or 1988, he experienced low-back pain when manoeuvring some board during the course of his employment. (“the 1987 injury”). The plaintiff asserts, and I accept, he does not remember seeing a doctor or taking any time off work. In his affidavit, the plaintiff deposes that he “got over this” but notes that over the next twenty years or so, he had “a bit of back pain, as my back would play up now and then”. When queried about this under cross-examination, the plaintiff initially said that he did not have any problems with his back after 1987 but ultimately accepted that he had a little bit of back pain but it was “not something serious”;
(d) I do find that the 1987 injury suffered by the plaintiff was most probably relatively minor. I have come to such view for the following reasons:
(i) I accept the plaintiff in relation to what he says as to the frequency and intensity of any symptoms after the 1987 injury;
(ii) There would not appear to be any evidence to suggest that he attended doctors after 1987 to 2007 in respect of any back injury or lost time off work;
(iii) I also note that following to what I will refer to as the February 2007 injury, the plaintiff made a claim for compensation which no doubt was the basis for the defendant (or its insurer) arranging for the plaintiff to be medico-legally examined by Mr Battlay on 14 November 2007 (who obtained the history that the plaintiff suffered injury to his back in the late 1980s and that although the injury was reported, no claim was made and he had “no ongoing problems subsequently”); and by Associate Professor Buzzard, on 28 August 2008 (who obtained a history from the plaintiff that he may have had some back pain in or about 1988 or thereabouts which only lasted a couple of weeks);
(e) The plaintiff suffered an incident of injury in February 2007 (“the February 2007 injury”) when on 8 February 2007, the plaintiff had been on a front-end loader and was getting off when his right foot slipped and he fell, landing on his right foot and jarring his back. The plaintiff asserts, and I accept, that following this incident, the plaintiff experienced significant low-back pain and although not immediately afterwards, but soon afterwards, he experienced symptoms in various parts of his right leg;
After a consideration of all of the evidence, I have formed the view, as a matter of probability, that the February 2007 injury, which I find to be a discal injury, has caused long-term impairment of the low back, with a variety of organic consequences. I do so for the following reasons:
(i) The plaintiff initially consulted Dr Zoran Ilic, his then treating general practitioner, on 12 August 2007, complaining about low-back pain which had been occurring and worsening since he had slipped off the front-end loader at work on 8 February 2007;
(ii) I do note that Dr Ilic obtained a history that the plaintiff was employed at that time as a plaster mill team leader and his normal duties consisted of monitoring production via computers in a control room with occasional manual work. Dr Ilic was also informed that on “rare occasions”, the plaintiff would be required to need to operate a front-end loader or to assist with manual labour to clean up any waste material. The plaintiff informed Dr Ilic that he had no consulted a doctor earlier because he hoped the pain would improve and that he would recover from his injuries;
(iii) When reviewed on 4 October 2007, at which time a WorkCover claim was lodged, examination revealed tenderness in his lumbosacral region, together with reduced range of movements. He was treated with inflammatory medication, analgesia and an exercise program;
(iv) Dr Ilic arranged for the plaintiff to undergo an x-ray and CT scan, which were undertaken on 5 October 2007, and in particular, the CT scan demonstrated diffuse bulging at the L4-5 level with disc material compressing the thecal sac;
(v) Following the lodging of the Claim for Compensation, the plaintiff was examined by Mr Battlay on 14 November 2007, who also obtained a history that the duties of the plaintiff at the time of the February 2007 injury were not “physically demanding” but on the occasion of injury, he had to relieve another worker. Mr Battlay had the CT scan undertaken on 5 October 2007 and considered that most probably the plaintiff had suffered an L4-5 disc derangement with referred pain. Similarly, when examined by Associate Professor Buzzard on 28 February 2008, he also considered that the plaintiff was suffering discogenic pain, emanating from the L4-5 disc;
(vi) When examined by the orthopaedic surgeon, Mr Jones, on 26 July 2012, he was of the opinion that the plaintiff suffered discogenic pain caused by the February 2007 injury. At that time, Mr Jones not only had the CT scan of October 2007 but also had access to a further report of a CT scan undertaken on 3 August 2012. In a subsequent report dated 23 September 2012, Mr Jones opined that the plaintiff did have a problem with his back which would not fully resolve, and will be an ongoing problem as far as his employment as a senior operator is concerned. He considered the prognosis was “reserved” and the plaintiff would continue to experience backache and pain in the right leg, caused by the February 2007 injury;
(vii) In particular, I refer to the report of the neurosurgeon, Mr Brownbill, who examined the plaintiff on 12 June 2013 and 8 June 2016. I note that Mr Brownbill was of the opinion, after both examinations, that the plaintiff sustained injury to the region of the L4-5 disc following the February 2007 injury. In particular, Mr Brownbill notes that falls onto feet with associated axial forces to the spine are notorious for damage that may occur to structures about the spine, including lumbar intervertebral discs;
(viii) Since the February 2007 injury, the plaintiff asserts, and I accept that he has had essentially continuous low-back pain of varying intensity, with intermittent pain in his right leg. Such pains are made worse by activity, whether that be at work or as a result of any domestic or recreational activity. It is to be noted that following the February 2007 injury, the plaintiff continued in the same job until about 2010, when his job was changed, causing an increased workload. The plaintiff gave evidence, and I accept, that he also attended another general practitioner, Dr Tim Bajraszewski in Caulfield, on a number of occasions in 2007 and or 2008 in relation to his back condition. He believes that Dr Bajraszewski referred him for physiotherapy in 2008 and or 2009 and prescribed medication. Dr Bajraszewski arranged for the plaintiff to undergo an x-ray of his lumbar spine on 4 November 2010, which revealed moderate disc space narrowing at the L4-L5 disc level;
(ix) I also accept that it is probable that the plaintiff did consult his present general practitioner, Dr Gruba, over the period of time from February 2007 up to August 2011. Although the reports from Dr Gruba would suggest the plaintiff initially consulted Dr Gruba about his back on 22 August 2011, I accept the assertions of the plaintiff that over the years in 2008 and 2009, he generally talked to Dr Gruba about his back and sometimes he was given naturopathic drops and other remedies. When it was put to him about the first recorded presentation about back injury was in August 2011, the plaintiff stated “that when I have a serious problem but he knows all about my medical problem;”[92]
[92]T48, L31 – T49, L1
(f) On or about 4 August 2011 (“the August 2011 injury”), the plaintiff suffered increased low-back pain and right leg difficulties when he was using a heavy 2-metre pipe with both hands to hit gypsum pieces to break them up at the bottom of a hopper. Beyond an increase in his low-back symptoms, the plaintiff also suffered pain in his neck and right shoulder (which later improved substantially). It is to be noted:
(i) The plaintiff gave evidence, and I accept, the pain symptoms that he suffered in his low back and right leg following the August 2011 injury were in the same position as the symptoms that he had suffered following the February 2007 injury;
(ii) When queried whether there was any lasting change in the level of pain after the August 2011 injury compared to prior to that, the plaintiff noted that the level of pain depends on what he is doing, and that had been the case since the February 2007 injury;
(iii) When Dr Gruba did record a history of “back injury” on 22 August 2011, it was noted that the plaintiff was complaining of “lumbar backache that radiated numbness into his right heel”. In particular, Dr Gruba obtained the history that any lifting or carrying caused such pain;
(iv) Dr Gruba arranged for the plaintiff to be examined by the neurosurgeon, Mr Timms, who arranged for the plaintiff to undergo an MRI scan on 1 July 2013, which reported, amongst other things, that there was an L4-5 broad-based posterior disc bulge with a posterior central annular tear, facet joint and ligamentum hypertrophy. Mr Timms considered that the symptoms of the plaintiff were emanating from the L4-5 disc and that if there was no improvement through exercises and physiotherapy, consideration would have to be given to the plaintiff undergoing a lumbar laminectomy. Mr Timms noted that the plaintiff had persistent back pain and sciatica and even when doing minimal things, was getting symptoms, even bending to look at things;
(vii) The plaintiff asserts, and I accept, that the symptoms that he continues to suffer in his low back, together with the symptoms that he suffers within his right leg impact in a variety of ways in relation to his social, domestic and recreational activities. I accept that his ongoing symptoms to generally impact him in the following ways:
· I accept that since the 2007 injury, he has experienced low-back pain all the time, although it varies in intensity. In particular, I accept that he constantly needs to be conscious of movements and how to go about his work and daily activities so he does not jar his back or cause the pain to intensify. I also accept that he does get sharp stabbing pain in his low back which can be so intense that it has caused him to drop things he is carrying (most recently a cup of tea). When he gets such sharp stabbing pain, it lasts for some time and he has to carefully sit or lie down and often put a heat pack on his back to try and relieve some of the pain. Because he has to always consciously think how he will go about performing any type of bending, twisting or lifting anything over a few kilograms so as to avoid increased pain, he has lost much of the enjoyment he obtains from any hobby or any recreational activity that he pursues;
· Depending on what he is doing, pain can travel from his low back into his right leg – particularly when he experiences spasm type pain. He gets tingling in his right leg, spasms in his right calf, sometimes weakness in his right leg, and feels pain shooting down his right leg when he coughs or sneezes. Furthermore, he experiences a burning and itching pain in his right heel. Standing and sitting for any length of time increases symptoms in both is low back and right leg;
· He wakes up at night because of low-back and right leg pain and finds it hard to find a comfortable position to sleep in;
· Prior to the injury, he used to enjoy walking for 3 or 4 kilometres most evenings, but is now limited to walking less times per week (about every second day) and for shorter periods and has to sit down and rest when making such walks. He describes that exercising was important to him and he feels like he has lost his ability to do this;
· Driving an automatic vehicle for over 35 or 40 minutes causes his back and right leg pain to worsen and, accordingly, he tends to avoid driving for long distances. On occasions when he has driven to say Bright, he has been required to stop a number of times to have breaks because of low-back pain;
· He has been a strong supporter of the Collingwood Football Club over the years and prior to the onset of his symptoms, used to go to a lot of the games at the MCG and watch them play, but now does not go, as “sitting” for a long time makes his back pain “worse”. In a similar way, he enjoys watching state soccer league games with friends but since the injury, has found it hard to go, as standing for long periods makes his back pain worse. The plaintiff acknowledged, under cross-examination, that he can watch these things on television if the matches are playing;
· Before the onset of his symptoms he helped his wife with various domestic duties but now finds it hard to perform such work as vacuuming or stacking and unstacking the dishwasher, as bending over makes his back pain worse;
· He is less active in the gardening and his son and wife help him, whether it is to mow the lawn or just generally being in the garden. If he does attempt mowing the lawn or working in the garden, he has to have breaks and be careful what he does;
· He used to go for a large shopping trip with his wife and collect groceries but now is only capable of helping his wife with smaller shopping which is easier to carry;
· Prior to the onset of his symptoms, he enjoyed camping with friends and family in the Deniliquin and Echuca area, which was undertaken a couple of times each year for a few days. When camping, he enjoyed going for long bushwalks but since the onset of his symptoms, he has found it hard to go camping because sleeping in a tent is not comfortable, with his back pain, and furthermore, he is unable to go for long bushwalks as he did before;
· He did enjoy playing billiards with friends and family at various homes and also at the Serbian Orthodox Community Hall, but since the onset of his symptoms, he avoids such situations;
· He enjoyed playing billiards with friends and family at their homes and also at the Serbian Orthodox Community Hall about two or three times a week or two or three times a month but now finds it difficult to play because of the bending involved and plays far less than before. He also played bocce with friends at the hall but now is unable to play such game because of his back pain;
· He considers that his sex life is more limited because of his low-back pain and when sex is performed, he suffers increased low-back pain;
· When putting on shoes and socks, there is difficulty because of back pain and he has to be very careful what he is doing;
· In general, he has to be very careful in relation to all activities and it is necessary for him to consider how he is going to go about doing something to avoid increased back pain and right leg pain through any particular activity or activities.
189 The plaintiff continues to consult Dr Gruba about once a month and he prescribes naturopathic drops, which does help with his lower back pain and he takes such drops daily. Dr Gruba also prescribes Celebrex to take when the pain is “really intense” and the plaintiff believes he takes these a few times a month, although he tries to avoid that type of medication.
190 He has taken other medication over the period from Dr Ilic and Dr Tim Bajraszewski, who he attended on a number of occasions from 2007 to 2010 for his back condition. That doctor referred him for physiotherapy.
191 As I have already recorded, I consider the 1987 injury to be relatively minor and did not cause the plaintiff to either make a claim for such an injury, obtain treatment for such an injury or lose time as a result of such injury. Again, as I have already recorded, I consider that the February 2007 injury is of some significance as I have found that as a result of such injury, the plaintiff has suffered some degree of disc derangement at the L4-5 level as found by a majority of the doctors. It is unclear whether the February 2007 injury is indeed an “aggravation” of the earlier 1987 injury.
192 I doubt whether much turns on such issue (and this point was not taken up during argument). Even if one applied the test set out in Petkovski v Galletti,[93] the extent in the change in the low-back impairment as a result of any “aggravation” is extensive, based on the findings I have made, to wit:
[93]Op cit
(i) The intensity of the back pain was far more severe after the February 2007 injury and more particularly, has continued on from that date with fluctuating intensity over time, depending on the activity undertaken by the plaintiff;
(ii) Importantly, since the February 2007 injury, the plaintiff has had intermittent symptoms in his right leg and particularly in the area of the right foot. He has consistently complained about such symptoms since 2007 to date;
(iii) Since the February 2007 injury, the plaintiff has undergone a variety of treatments, including physiotherapy, acupuncture, naturopathic drops and various analgesia.
193 Although I accept that there may well have been some general work aggravation of such condition after February 2007 – for example increased symptomology after the job restructure in 2010, I consider it more likely such symptoms can be explained as a result of the February 2007 injury. The plaintiff was far more vulnerable to increased symptoms depending on the particular activity that he has undertaken.
194 In this sense, I consider the August 2011 injury is but yet another example of increased symptoms because of the plaintiff’s vulnerability to physical activity following the February 2007 injury. On analysis of the two incidents of injury, I consider that it is probable that the February 2007 injury played a contributing role to the extent of the symptoms experienced by the plaintiff after the August 2011 injury. In this sense, I consider the approach enunciated by Appeal Justice Buchanan in Altona Bus Lines v Lococo[94] is applicable.
[94]Op cit
195 In this respect, I also refer to the reports of Mr Brownbill, who examined the plaintiff on two occasions, both of which post-dated the August 2011 injury. Clearly, Mr Brownbill obtained a full history about the August 2011 injury.
196 On both occasions, Mr Brownbill was of the opinion that on the history obtained by him and on his examination findings, there was much increase of low-back pain and later, right leg pain of the plaintiff following the fall on his foot in 2007 which has continued. He was of the opinion that he should avoid activities avoiding heavy lifting, forced spinal mobility or repeated bending or prolonged standing or sitting in order to minimise these ongoing symptoms.
197 Furthermore, Professor Bittar, who examined the plaintiff on 11 June 2016, ultimately opined that the plaintiff’s “current symptoms” followed an injury at work in August 2007 when he stepped off the end of a front-end loader, after which he experienced a sudden onset of low-back pain associated with the development of right leg pain over the next few days.
198 Furthermore, the orthopaedic surgeon, Mr Clive Jones, who examined the plaintiff on 26 July 2012, also obtained the history that since the February 2007 injury, the plaintiff had had ongoing symptoms in his low back and intermittent symptoms in his right leg, with increased back symptoms in July 2011. (I believe the reference is to the August 2011 injury). Mr Jones was of the opinion that the “injury” occurred in February 2007 with what he called a recurrence or increase of back pain in 2011.
199 Ultimately, I consider that the opinions expressed by Mr Brownbill accord best with the established facts and accordingly, I adopt and accept his opinions. It should be noted that Mr Brownbill, and various other doctors, only found slight restriction of thoracolumbar spinal flexion and no neurological abnormality of the lower legs or signs of radiculopathy. (I do note that the other neurosurgeon, Professor Bittar, who examined the plaintiff on 11 July 2016, did consider there was mild right L5 radiculopathy). Based on the radiological examination showing the disc abnormality at L4-5 and indeed, on the history given by the plaintiff, he accepted that there was an ongoing back condition giving rise to symptoms both in the low back and the leg, as did most other doctors.
200 I have already noted earlier in this judgment that I found the plaintiff to be an impressive witness, and accept his assertions as to the nature, frequency and disabling effects of the symptoms of which he complains. In this sense, I accept that he always has a degree of pain in his low back and intermittent pain in his right leg, with such symptoms in either area worsened through various activity which he would encounter not only during the course of his employment but during the course of social, domestic and recreational activities.
201 I, accordingly, reject the opinions of Mr Pease and Dr Bloom. The opinion of Mr Pease seemed to be directed more to the August 2011 injury, than an overall assessment of the plaintiff’s condition. Furthermore, I found his opinion somewhat confusing when he accepted initially that any aggravation of his condition would be long term, but later opined that the plaintiff had effectively gotten over such “injury”. I also reject the opinion of Dr Bloom, that although he considered the plaintiff to be an impressive patient, then went on to suggest that his complaints of pain were disproportionate to the findings made by Dr Bloom.
202 With the exception of Mr Pease, other orthopaedic surgeons (Mr Jones, and Mr Kossmann) and the neurosurgeons (Mr Brownbill and Professor Bittar), all accept the plaintiff’s presentation of ongoing symptomology, albeit with perhaps a slightly different emphasis on causation.
203 Returning to the initial issue discussed in this judgment, I do consider that in the circumstances of this matter, both on the evidence given by the plaintiff and the various medical opinions proffered by doctors, this matter is more appropriately analysed in looking at various alleged traumatic incidents rather than an analysis on the course of employment, as advocated by Senior Counsel for the plaintiff. That is not to say that the plaintiff did not suggest an increase of symptoms, particularly around 2010, without any particular incident, but as I have recorded, this is best analysed, in my view, as a manifestation of the February 2007 injury, causing the plaintiff to have symptoms which are essentially activity driven. Also, some doctors – for example Professor Bittar and the general practitioner – opine that the plaintiff’s employment with the defendant caused his back condition.
204 In respect to Dr Gruba, his evidence is not entirely satisfactory as it is unclear whether he had a knowledge of the sequence of incidents suffered by the plaintiff. By this, I am not suggesting any misleading on the part of the plaintiff, but rather reflecting on the approach taken by Dr Gruba which he clearly identified to be different from the normal history taking process. Furthermore, when one looks at the opinion of Professor Bittar, he clearly relates the employment to a variety of incidents.
205 The second issue raised by the defendant is, even in the event that the plaintiff has a serious long-term impairment of his lower back from an identified compensable injury (which I have found), any of the consequences resulting from that impairment would not satisfy the narrative test – that is, the impairment of the low back “may be, fairly described as being more than significant or marked, and as being at least very considerable”.
206 As I have already recorded, the question of whether an “injury” satisfies the narrative test is largely a question of impression or value judgment. As stated by Maxwell P in Haden Engineering Pty Ltd v McKinnon:[95]
“As has often been said, the serious injury test is couched in the language of impression. ‘Elements of fact, degree and value judgment are involved’.”
[95](2010) 31 VR 1 at paragraph [3]
207 The plaintiff is presently employed by the defendant as a product tester in the laboratory, where he is able to sit and move around as required. He no longer performs the heavier types of work that he has performed over the years with the defendant. His evidence has been, and I accept, that in general he is able to cope with his present employment, albeit that it does make him tired at the end of the day. In Sumbul v Melbourne All Toya Wreckers Pty Ltd,[96] Chernov JA stated, at paragraph [24]:
“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable.’”
[96][2006] VSCA 292
208 Subsequently, such view was moderated in Stijepic v One Force Group Aust Pty Ltd & Anor,[97] at paragraph [47], wherein Ashley JA and Beach AJA stated:
“So far as the respondents’ final submission is concerned, it is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”
[97][2009] VSCA 181
209 Later, in Haden Engineering Pty Ltd v McKinnon,[98] Maxwell P stated, at paragraph [15]:
“It is simply one of the matters to be taken into account. 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].”
[98]Op cit
210 In Haden Engineering Pty Ltd v McKinnon,[99] Maxwell P directed that courts are to analyse the evidence to identify separately the plaintiff’s experience of pain and the disabling effect of pain. The court must then assess the combined effect of these two forms of pain and suffering for the purposes of the test for serious injury.
[99]Op cit
211 Several matters are relevant when assessing the plaintiff’s pain and suffering, including:
(a) What the plaintiff says about the pain in court and to doctors;
(b)What the plaintiff does about the pain (for example, medication, rest, et cetera);
(c) What doctors say about the extent and intensity of the pain;
(d)What the objective evidence shows about the disabling effect of the pain.[100]
[100]See Haden Engineering Pty Ltd v McKinnon (op cit) at paragraph [11]
212 However, it is relevant to take account when reviewing the objective evidence concerning the disabling effect of the pain, whether or not the plaintiff is stoic. In the circumstances of this matter, as I have already recorded, I do consider the plaintiff was somewhat stoic.
213 In such circumstances, a plaintiff should not be penalised for treating their injury as less serious simply because the plaintiff is willing to endure the pain and remain more active than another plaintiff.[101]
[101]See Haden Engineering Pty Ltd v McKinnon (op cit) at paragraph [13]; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [33] and Transport Accident Commission v Kamel [2011] VSCA 110 at paragraph [67]
214 In identifying the extent to which the pain limits any of the plaintiff’s physical functioning, and interferes with their enjoyment of life, it must be also borne in mind what was stated in Dwyer & Calco Timbers Pty Ltd (No 2),[102] wherein, at paragraph [27], Ashley JA stated:
“It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[102][2008] VSCA 260
215 As I have already indicated, I found the plaintiff to be a creditworthy witness and I accept what he asserts in relation to his experience of pain impacting on his work activities and his social, recreational and domestic activities. As he stated to the Court, he is not a “cripple”, but does have enduring pain, which is intensified by various physical activities.
216 The video relied on by the defendant does not, in my view, impact on the credibility of the plaintiff. Clearly enough, the video showed the plaintiff, what I would refer to, as “jogging” across the road when he was going to a medical appointment and, after crossing the road, walking reasonably quickly along the footpath to get to the doctor’s clinic. The video revealed him getting into out and out of cars by not holding any particular object and, also, on two occasions, bending to some degree to place something in the backseat of a vehicle.
217 From my observations, as I detailed in Court, I consider that the plaintiff walked with a very straight back which suggested some degree of stiffness and, on a couple of occasions, he seemed to reverse himself into the vehicle. Ultimately, I came to the view that such activities - viewed on the video and which in total extended for about nine minutes did not significantly impact on his credit or, more particularly, his limitations as described to me.
218 As I have already recorded, clinical findings in relation to the plaintiff are relatively modest – there is little restriction of movement of his back and generally no neurological deficit. However, all doctors, with the possible exception of Mr Pease and Dr Bloom, accept that the plaintiff has a discal injury giving rise to organic pain symptoms and, in particular, radiated pain down his right leg, which has been a consistent complaint of the plaintiff since the 2007 injury. He continues to see Dr Gruba about once a month for drops and celebrex as required.
219 It must be borne in mind that the plaintiff experiences pain every day – varying in intensity depending on the activities that he undertakes and can also experience extremely severe pain in the form of spasm, both in his back and lower leg, which affects him quite dramatically.
220 The plaintiff should not be criticised for pursuing naturopathic techniques to help him relieve this pain – by that I mean taking drops from Dr Gruba, which he considers does improve his condition, rather than taking more traditional medication. Again, I accept this does reflect the stoic disposition of the plaintiff.
221 I refer to, and repeat the various findings of fact I made in relation to how the ongoing lower-back pain and right leg pain impact on the plaintiff in relation to his social, domestic and recreational activities (please see paragraph 188 (f) (vii)).
222 I do not consider that any single consequence satisfies the narrative test. However although appreciating this may be referred as a line-ball case, I consider that all the consequences in relation to how the impairment of his lower back impacts on his working, domestic, recreational and social activities, do constitute a “serious injury” within the meaning of the Act. Accordingly, I am satisfied that the plaintiff has satisfied the narrative test.
223 Accordingly, I find for the plaintiff.
224 I order, pursuant to s134AB(16) of the Act, that the plaintiff be granted leave to bring common law proceedings for pain and suffering damages in respect of a lower-back injury suffered, arising in the course of his employment with the defendant.
225 I will hear the parties in relation to costs.
Annexure “A”
1The plaintiff tendered the following material:
Exhibit 1
· Form A dated 2 April 2015
· Draft Statement of Claim
· Particulars of Injury
(Such documents found at pages 1-16 and 28 of the Plaintiff’s Court Book (“PCB”))
Exhibit 2
· Affidavits of plaintiff sworn 30 March 2015 and 8 June 2016 (at pages 17-27 PCB)
Exhibit 3
· Medical reports of Zenon Gruba, undated, 19 October 2012, 24 February 2014, 15 December 2014 and 7 June 2016
· Report of treating neurosurgeon, Mr Criag Timms, dated 2 August 2013
(Such documents found at pages 29-40 PCB)
Exhibit 4
· X-ray of the lumbar spine dated 4 October 2010
· CT scan of the lumbar spine dated 3 August 2012
· MRI scan of the lumbar spine dated 1 July 2013
(Such documents found at pages 41-43 PCB)
· Report of Dr Ilic dated 5 December 2007, with CT Scan Attached
Exhibit 5
· Reports of Mr David Brownbill dated 14 June 2013 and 8 June 2016
· Medical reports of orthopaedic surgeon, Mr Thomas Kossmann, dated 21 February 2014 and 4 June 2016
· A report of the pain specialist and specialist anaesthetist, Dr Richard Sullivan, dated 7 June 2016
· Report of the neurosurgeon, Professor Richard Bittar, dated 11 June 2016
(Such documents found at pages 44-69 PCB)
2The defendant tendered the following material:
Exhibit “A”
· Surveillance footage undertaken of the work on 1 and 2 April 2016
Exhibit “B”
· Worker’s Injury Claim Form dated 7 September 2011 and Employer Injury Claim Report of same date
(Such document found at pages 1-2 Defendant’s Court Book (“DCB”)
Exhibit “C”
· Medical report of the general surgeon, Mr Peter Battlay, dated 15 November 2007
· Medical report of the general surgeon, Associate Professor Anthony Buzzard dated 30 August 2008
· Medical reports of the occupational physician, Dr Mary Wyatt, dated 29 September 2011 and 26 November 2012
· Reports of the orthopaedic surgeon, Mr Clive Jones, dated 27 July 2012 and 23 September 2012
· Medical reports of the orthopaedic surgeon, Mr Richard Pease, dated 23 September 2014, 21 March 2016 and 3 June 2016
· Reports of the occupational physician, Dr Michael Bloom, dated 3 March 2015, 26 April 2016, 7 June 2016 and 19 June 2016
(Such documents found at pages 3-73 DCB).
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