Cust v Milnes-Gatic Pty Ltd

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-04-04765

DAVID ALISTAIR CUST	Plaintiff
v
MILNES-GATIC PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	26 and 27 October 2010
DATE OF JUDGMENT:	6 December 2010
CASE MAY BE CITED AS:	Cust v Milnes-Gatic Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 1975

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering only – whether consequences to the plaintiff are serious.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S R McCredie	Booths
For the Defendant	Mr A J Moulds	Minter Ellison
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant in or about July 2001 to 7 August 2001, and on or about 29 August 2001 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.”

4          The impairment of body function relied upon in this case is the lumbar spine.
5          The impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as being more than significant or marked and at least very considerable.
6          The plaintiff relied upon two affidavits and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. The plaintiff’s general practitioner, Dr Korman, was required for cross-examination. I have read all the tendered material.

The Plaintiff’s Evidence
7          The plaintiff is presently aged thirty-eight, having been born on 14 February 1972.
8          In his early childhood and teenage years, he suffered a number of traumatic events in his family and acquired a reliance on prescribed medication, including narcotic analgesics.
9          The plaintiff left school in Year 11 in 1988. He was then employed for two years by a clothing manufacturer as a fabric cutter, until his employment was made redundant as a result of a downturn in the industry.
10        Between 1990 and 1993, the plaintiff was employed by Safeway as a packer and storeman. During that period of employment, he suffered a thigh injury and was off work for one or two weeks but suffered no ongoing problems.
11        In cross-examination, the plaintiff agreed he had been convicted of a number of criminal offences since March 1991. In that year, he was convicted of possession and use of a drug of dependence.
12        In 1994, the plaintiff completed a hospitality course through Centrelink and worked as a barman at the Noble Park RSL. However, as he did not obtain the necessary gaming licence, he was unable to continue in that job.
13        During that year, the plaintiff met “Kelly”, with whom he formed a long term relationship. She is the mother of their two daughters, now aged fourteen and twelve.
14        In 1996, the plaintiff was employed by Parcel Line as a storeman for three months, and later that year he moved to Hamilton with Kelly.
15        In 1997, the plaintiff returned to Melbourne and was employed in very short term casual jobs, normally through an agency.
16        In cross-examination, the plaintiff could not recall seeing his general practitioner, Dr Miceli, about his low back on one occasion in 1998.
17        In 1999, the plaintiff worked for Peninsula Pest Control for approximately twelve months.
18        In about March 2000, the plaintiff obtained casual work with the defendant through Centrelink. His duties at that stage involved general factory and machine operator work. In September 2000, the plaintiff was made permanent with the defendant and these duties continued. He was paid an hourly rate of $13.29 or $510 per week.
19        In both March and December 2001, the plaintiff was charged with intentionally causing injury.
20        In about April 2001, the plaintiff suffered a left shoulder strain whilst at work with the defendant. He missed two days from work but he had no ongoing problems.
21        On 9 May 2001, the plaintiff was involved in a transport accident, after which he was treated for general back stiffness at the Premier Clinic in Mornington. However, he required no time off work and no further ongoing treatment.
22        The plaintiff continued his normal duties operating a machine, which involved him bending and lifting product from bins (“the work duties”). In late July/early August 2001, he experienced a cramping like feeling in the back of his thighs, which extended into his lower back whilst doing these duties over a number of days.
23        On 7 August 2001, the plaintiff complained to the defendant in this regard and later that day he attended Dr O’Doherty at the Premier Clinic, and was certified unfit for work until 22 August 2001.
24        On 15 August 2001, the plaintiff made a claim for compensation, citing the date of injury as 7 August 2001.
25        On 22 August 2001, the plaintiff returned to work with the defendant on modified light duties with a fifteen kilogram lifting limit and he was assigned store work.
26        In cross-examination, the plaintiff confirmed that he had initially been given a written warning in June 2001 about his poor attendance. He was given a second written warning in this regard on 22 August 2001.
27        On the said date, whilst lifting and carrying a carton from the pallet to replace it on the shelf, the plaintiff experienced a severe onset of low back pain and collapsed at the work site (“the incident”).
28        The plaintiff was taken by ambulance to Frankston Hospital and discharged later the same day.
29        The plaintiff then attended Dr O’Doherty, who certified him unfit for all work until 12 September 2001. On 3 September 2001, plain x-rays of the plaintiff’s back were carried out.
30        On 12 September 2001, Dr O’Doherty certified the plaintiff fit for restricted duties with a seven kilogram lifting limit, with no repeated bending, pushing or pulling duties. However, no work was available with the defendant on those terms and the plaintiff stayed off work.
31        On 25 September 2001, the plaintiff’s claim for weekly payments was accepted. The following month he moved from Mornington to Hastings and separating from Kelly, who kept their children with her.
32        On 13 December 2001, the plaintiff was advised by the defendant that it proposed to relocate its business from Braeside to Bendigo. The plaintiff was advised that he would be made redundant from 18 January 2002. Weekly payments of compensation were suspended because the plaintiff was paid a redundancy payment.
33        In December 2001, Dr O’Doherty retired and Dr Hall at the Premier Clinic took over the plaintiff’s treatment. On 28 December 2001, a CT scan of the plaintiff’s back was organised.
34        In December 2001, the plaintiff was charged with intention to cause serious injury. In cross-examination, the plaintiff agreed that he was affected by alcohol and some cannabis when he committed this and other offences.
35        On 22 January 2002, the plaintiff was admitted to Frankston Hospital with a stab wound following an assault, but discharged himself that night and underwent no further treatment.
36        In early 2002, the plaintiff was contacted by Industrial Work Conditioning Clinic (“IWCC”) to undergo rehabilitation. The plaintiff said, in cross- examination, that he co-operated with this agency, and in May 2002, he completed the form sent to him by IWCC but heard no further.
37        In February 2002, the plaintiff was disqualified from driving for twenty four months following a drink driving offence.
38        In cross-examination, the plaintiff could not remember being referred to Mr Williamson, an orthopaedic surgeon.
39        In early 2002, the plaintiff transferred his treatment to Dr Miceli at the Hastings Clinic, having moved there to live with his mother.
40        On 12 August 2002, the plaintiff attended Dr Korman at Frankston Health Care in respect to an unrelated condition, and he has treated the plaintiff since that time.
Drug Dependency
41        The plaintiff was cross-examined at length about Dr Korman’s notes in relation to his first attendance with him on 12 August 2002. Despite what was recorded by Dr Korman, the plaintiff was adamant he had never taken heroin in his life, let alone since he was thirteen, as the note set out. He tried amphetamines when he was thirteen. He denied he was on a $150 a day heroin habit and that he had $150 a day to spend. He denied that he had been using heroin for the three months leading up to that attendance since the break up of his relationship with Kelly.
42        The plaintiff did not know why Dr Korman wrote “heroin” because the plaintiff was on speed, amphetamines. He denied he went to Dr Korman to get off heroin and onto Methadone.
43        The plaintiff denied that when he was assessed by the Peninsula Drug and Alcohol Program (“PenDAP”) on 4 November 2002, he had told the interviewer, Mr White, that his drugs of choice were cannabis and heroin. He did not know why Mr White had written down “heroin”.
44        The plaintiff was also asked about a pre-anaesthetic assessment conducted on 22 October 2001 at Frankston Hospital prior to him undergoing thumb surgery. Amphetamines and heroin were noted in that document as “past recreational drug use”. The plaintiff said he did not know why heroin was recorded. He admitted to speed, but had never used heroin.
45        As the plaintiff had never been on Methadone before, he agreed that he probably would have been pretty open talking to Dr Korman when he was put on the program. He agreed the initial interview with Dr Korman was quite extensive. The plaintiff could not recall having tracks on his arms when he first saw Dr Korman. He had scratches but did not believe that he had tracks.
46        The plaintiff thought he had gone to Dr Korman to be put on the program because he did not like taking morphine which had been prescribed by Dr Miceli, and he was addicted to it. The plaintiff denied that having been put on Methadone in August 2002, he was still getting Kapanol from Dr Miceli for the next two months.
47        The plaintiff told Dr Korman he was still attending Dr Miceli in the latter part of 2002, and thought it could not be right if, on 28 August 2002, Dr Korman was told by him he had ceased Kapanol because of the onset of Methadone.
48        The plaintiff was also cross-examined about his attendances in 2002 at the Premier Clinic and at the Hastings Clinic.
49        The plaintiff agreed that in 2002, he had a well-integrated benzodiazepine habit.
50        The plaintiff saw Dr Miceli on 18 February 2002, when he prescribed Kapanol and Valium. The plaintiff probably also received a prescription of Valium and Mogadon from Dr Hall at the same time but he could not remember.
51        The plaintiff could not remember, during 2002, getting Kapanol and Mogadon from Dr Miceli, whilst also being prescribed similar drugs by Dr Hall. The plaintiff could not recall seeing Dr Hall at the same time he was seeing Dr Miceli.
52        Generally, in 2002, the plaintiff explained that he received two lots of prescriptions when he was changing doctors but he did not remember seeing Dr Hall and Dr O’Doherty for that long, thinking that he had finished at the Premier Clinic earlier on. He recalled a couple of times when he received two lots of prescriptions but denied it was more frequently.
53        The plaintiff stopped seeing Dr Miceli because they were not getting along very well, and Dr Miceli thought the plaintiff was overusing his morphine and suggested to him that he was giving it to someone else. The plaintiff agreed that he had turned up clearly inebriated on a number of attendances with Dr Miceli.
54        Dr Miceli accused the plaintiff of passing off the Kapanol, because the plaintiff kept going back and asking for it a bit early. He told Dr Miceli he was getting hassled from people that they wanted the medication and that he was going to swap over to Methadone anyway. The plaintiff then said he could not recall that the Kapanol that he received in the latter part of 2002 was not being consumed by him.
55        The plaintiff could not remember Dr Miceli conducting two drug screens in October 2002, where the plaintiff was negative for opiates.
56        As of October 2002, the plaintiff agreed he had already started seeing Dr Korman. The plaintiff told Dr Miceli he was going onto Methadone and that he had gone to see Dr Korman. There was about a week between the plaintiff telling Dr Miceli that, and Dr Miceli terminating their relationship.
57        The plaintiff could not recall getting four prescriptions for Kapanol from Dr Miceli after he had started seeing Dr Korman.
58        On 25 September 2002, the plaintiff’s weekly payments of compensation were terminated on the basis he did not participate in a return to work program.
59        On 11 October 2002, Dr Miceli organised a CT scan of the plaintiff’s back, and later that month, on 24 October 2002, the plaintiff transferred treatment in respect of his back injury to Dr Korman.
60        On 7 April 2003, the plaintiff attended solicitors who made a claim on his behalf in relation to an aggravation of his injury on the said date.
61        Between 16 May 2003 and 28 March 2004, the plaintiff was imprisoned at Ararat Prison, after having been convicted at the Frankston Magistrates’ Court of the 2001 assaults and various driving offences. In October 2003, his partner, Sara, gave birth to their daughter, Odette. Sara was arrested for shoplifting during the plaintiff’s incarceration.
62        On his release from prison, the plaintiff underwent a repeat CT scan of his lower back on 19 April 2004. In October that year, the plaintiff saw Mr Brian Barrett, orthopaedic surgeon, who organised a further MRI scan on 30 October 2004.
63        Mr Barrett reviewed the plaintiff on 15 February 2005. Mr Barrett arranged a lumbar myelogram on 27 March 2006, and reviewed the plaintiff, to discuss the results thereof in May 2006.
64        Dr Korman arranged for the plaintiff to attend a pain management clinic at the Caulfield General Medical Centre in July 2006, but the plaintiff was discharged from that program following non-attendance.
65        In February 2008, there was an incident with the plaintiff’s partner, Sara, and an Intervention Order was granted against him. The police were called when the plaintiff breached that order on 20 June 2008 and he was charged and dealt with later on 9 September 2008, and fined $500.
66        In November 2008, the plaintiff self-referred to PenDAP and attended the scheduled appointments. The following month he also self-referred to the Salvation Army Program at the Frankston Magistrates’ Court.
67        On 19 January 2009, the plaintiff was admitted to hospital under the Mental Health Act, following an altercation with Sara in Warrnambool when he cut his left wrist in her presence (“the Warrnambool incident”). The plaintiff was charged with breach of the order and was then released and returned to Melbourne.
68        Between February and April 2009, the plaintiff attended a Salvation Army Program for six weeks, one hour per week.
69        On 3 April 2009, the plaintiff was dealt with by the Frankston Magistrates’ Court for the February 2008 incident and possession of cannabis. He was sentenced to nine months' imprisonment and an appeal was lodged. On 10 August 2009, the plaintiff’s appeal against his nine-month sentence was heard in Melbourne and the sentence was wholly-suspended for nine months.
70        In September 2009, the plaintiff presented to the Salvation Army at Frankston to undergo an anger management program and a positive lifestyle program.
71        On 23 and 28 October 2009, the plaintiff appeared before the Melbourne Magistrates’ Court in respect of the Warrnambool incident. He was sentenced to six months’ imprisonment, with three months to be served, and the balance suspended for two years. The plaintiff appealed against this penalty and his application for a community-based order was declined because of his back injury.
72        On 11 February 2010, the appeal in relation to the Warrnambool incident was heard and the plaintiff was sentenced to three months' imprisonment, which was wholly-suspended for twelve months.
Work
73        Prior to suffering injury, the plaintiff was capable of undertaking full time work. However, since then he has avoided activities placing a strain on his back.
74        In May 2009, the plaintiff obtained work delivering pamphlets and catalogues in the Hastings area to five hundred homes. He worked about ten hours a week and was paid between forty and two hundred dollars per week.
75        The plaintiff’s mother assisted in folding the pamphlets which the plaintiff then delivered by hand using a trolley. Whilst he could perform this work in his own time, he had a specified number of pamphlets to deliver by a certain date. He walked ten to fifteen kilometres per day in two or three phases. The walking helped him to retain his fitness and he coped reasonably well with the job.
76        The pamphlet work did not cause the plaintiff back problems, as long as he was careful with the weight in the trolley and he did not pull too much, or do too much at one time.
77        The plaintiff agreed that at that time he had been certified by Dr Weiss as fit for light work, not requiring lifting of more than ten kilograms, or prolonged postures. The plaintiff was prepared to undertake that sort of work and he thought that he was probably able to do light process work.
78        The plaintiff deposed he ceased this job because of uncertainly as to his availability for work as a result of an upcoming court case. He added, in cross-examination, that he stopped working in August 2009 because it was too cold.
79        If the plaintiff was offered delivery work to double the number of houses, he could probably do it.
80        In about September 2009, the plaintiff contacted Skills Plus, a labour hire organisation which provides assistance to people with a restricted capacity to work.
81        The plaintiff has been prepared to undertake work within his physical limitations but he has not been offered any work or further training by either Skills Plus or Centrelink. The plaintiff has asked Skills Plus if there was any work like night packing or store work.
82        The plaintiff obtained a wildlife licence in September 2009 in the hope of breeding and selling reptiles as a job. It is a matter of building up his equipment and breeding birds and reptiles and selling them. The work required would not be a problem with his back. The plaintiff explained: “They’re pretty easy. That should not be too hard; it’s not heavy lifting.”
83        The plaintiff is hoping to do a business management course though Skills Plus to assist in setting up that business.
84        Had he not been injured, the plaintiff would have probably worked as a storeman and forklift driver. As he explained in re-examination, his injury has affected his ability to go out and get work regularly, “a fair bit”. He just does not know what kind of job he could do without any training. He does not think he would be able to attend work Monday to Friday, because it is too unpredictable when the pain comes on.

85        When he has a flare up, he “could do something that involved sort of light duty, walking and probably something light in a factory, picking or something”. He thought he would be able to continue doing that.
86        The plaintiff deposed in 2007 that he has continued to be severely disabled by low back pain, which extends into his left buttock and thigh. The pain is constant but varies, particularly if he is in a sustained posture for any period of time. He can often experience severe onsets of low back pain unpredictably.
87        In cross-examination, the plaintiff also deposed that he is disturbed by pain and finds it difficult to get into a comfortable position. Lying down and resting for short periods of time can reduce his pain.
88        In cross-examination however, the plaintiff said he no longer had this level of pain. He sort of gets a bit of it now and then, but it is not as bad as it used to be. He explained, basically, the pain is mainly around the bottom of his buttocks and the lower back on the left side and no longer goes further down his leg.
89        The plaintiff deposed that he understood his health has been affected by problems such as bouts of alcohol abuse and problems with excessive taking of prescription medication, but that prior to his back injury, those problems did not affect his ability to work.
90        The plaintiff continues to consume alcohol and has trouble with substance abuse and dependence, mainly alcohol and cannabis. Alcohol and “smack” had been a problem in terms of his offending against Sara.
91        In cross-examination, the plaintiff agreed he had recurring problems with drunkenness and drug abuse dating back to the nineties. Sometimes he drinks a slab-and-a-half of beer in a day. He does not drink every day and can go without it for two or three days, but on the odd occasion he ends up going too far and drinking too much. He uses probably a gram of marijuana a day, which has been the case for fourteen years. He considered the marijuana did not really affect his behaviour, just the alcohol.
92        The plaintiff has finished the PenDAP alcohol program and also completed the 12-step program to manage his addictions. He has been involved in a positive lifestyle program organised by the Salvation Army.
93        The plaintiff underwent counselling at PenDAP from November 2008 until February 2010. The plaintiff was also referred to a psychologist, David Entwisle, for counselling and assistance to deal with depression and anxiety.
94        Not only is the plaintiff severely restricted by his back injury, but other health problems are now more difficult to control and he has experienced periods of depression and an inability to control his emotions, including anger and frustration. In October 2009, the plaintiff was referred by Dr Korman to a psychologist, Nina Turner, at the same Clinic.
Current Treatment
95        The plaintiff continues under the care of Dr Korman, or Dr Weiss if Dr Korman is unavailable.
96        The plaintiff’s present medication is Tramadol for pain relief. The anti- inflammatory, Voltaren, was stopped in September 2010. The plaintiff takes Tramal on an “as needs” basis, particularly when he experiences an increase in low back pain. The Tramal gives him a little bit of relief and if he has a flare-up it “tends to hold the pain”.
97        The plaintiff is also prescribed Methadone and is currently taking 70 milligrams a day which he uses as a painkiller, together with Tramal; Valium, a muscle relaxant, about 5 milligrams a day; and antidepressants of various descriptions and dosages.
98        The plaintiff’s treating doctors at Frankston have encouraged the plaintiff to reduce the amount of medication he takes.
99        The plaintiff’s only current treatment for his back is exercise, mainly floor exercises, which he does at home on instruction from his physiotherapist. He does them most mornings for about roughly half an hour. He probably misses exercising once a week because he has got to go and pick up his medication and he then is normally not feeling the best to exercise.
100       From about late 2001, the plaintiff started living with his mother in Hastings. She is blind and in general poor health. The plaintiff was able to provide her with regular care. In June 2009, she underwent double bypass cardiac surgery.
101       However, continuing to reside with his mother caused the plaintiff difficulties in respect of his two daughters who were residing with him during periods of access.
102       In about December 2009, the plaintiff obtained rented premises in Hastings which he looks after himself, close enough to his mother to provide ongoing care and assistance, but also giving him the chance to have his children stay without any problems.
103       The plaintiff is still his mother’s carer. He does a bit of vacuuming and a little bit of cleaning for her. He does some of her shopping but she also has some council help in that regard to encourage her to get out and about.
104       The plaintiff agreed that being his mother’s carer was sort of a half time occupation and that is why he got the pension. The plaintiff said there was no reason why he could not work half time. His new business venture with reptiles fitted in with his caring for his mother. He could not see anything really that was going to get in the way of this work plan.
105       If the plaintiff has a flare-up, he “does not sort of bother doing much for [his] mother”. He just does what he can. If his back is very irritable, he will not bother doing any cleaning up or anything and that will wait until later.
106       Such flare-ups do not happen that often, probably once a month for a couple of days, when his back inflames and “then it goes back” and seems to be alright for another few weeks. When it is irritable, the plaintiff cannot do “nothing really, not much”. He walks and just does his exercises. His back pain does not really make him particularly irritable.
107       The plaintiff has access to his teenage daughters and his two younger children, aged six and eight, from his relationship with Sara.
108       When he has the older children every fortnight and also for half the holidays, they go to the beach, the park and over to friends’ places. The plaintiff agreed the children lived a full life with him.
109       In re-examination, the plaintiff said that his back restricted him with his younger children as he cannot pick them up and “whiz” them around but otherwise his back did not really affect his activities with his children.
110       The plaintiff does not drive because he does not have a licence and although he could reapply for his licence, he thought it better to leave it for a while.

Claim Documentation
111       The plaintiff lodged a Claim for Compensation on 15 August 2001, citing an injury on 7 August 2001, when he strained his knees and lower back muscles: “hard flooring put strain on knees – led to lower back pain”.
112       By letter dated 25 September 2001, QBE Mercantile Mutual (“QBE”) accepted liability for weekly payments relating to the injury of 7 August 2001.
113       There was a further Claim for Compensation lodged on 7 April 2003 relating to an injury on the said date when the plaintiff suffered injury – “manual handling of heavy stock 25 kilograms”. On that claim form, the plaintiff noted he was supposed to be on light duties.
114       The plaintiff made a statement to Lee Kelly & Associates on 13 January 2001, describing the problems with his work duties leading up to 7 August 2001 when he attended the Premier Health Clinic, and his subsequent collapse at work on the said date.

The Plaintiff’s Medical Evidence
115       The plaintiff attended Mr Royes, physiotherapist, in Mornington in August 2001 for low back pain which came on at that time. Mr Royes reported that there was no particular incident, but the plaintiff described the bending required when working on a machine.
116       Mr Royes then thought that the plaintiff had most likely injured a disc, albeit a relatively minor injury, but that the system had been inflamed and his muscle spasm was perpetuating this situation. He instructed the plaintiff to undergo basic mobility exercises and advised him that he would have lifting restrictions until his condition settled.
117       The plaintiff attended Dr O’Doherty on 7 August 2001, complaining of lumbar pain of two weeks’ duration. He told Dr O’Doherty he had strained his back with repeated bending and lifting weights of fifteen kilograms. The plaintiff also complained of knee pain.
118       On 22 August 2001, the plaintiff returned to modified duties, not lifting in excess of fifteen kilograms.
119       The plaintiff saw Dr O’Doherty again on 24 August 2001, when he told him that while lifting a weight of approximately twenty five kilograms, he got a sudden pain in his lumbar spine. At that stage, Dr O’Doherty thought the plaintiff was unfit for work.
120       On the said date, the plaintiff attended Frankston Hospital Emergency Department, having been conveyed there by ambulance with low back pain.
121       The Hospital nursing notes set out the plaintiff had a back injury two weeks prior. On the date of attendance, the plaintiff apparently returned to work on light duties and had hurt his back again whilst lifting a twenty kilogram box. The plaintiff complained of pain in the lumbosacral regions. It was noted that, unfortunately, the plaintiff discharged himself at his own risk before he could be seen or assessed by a doctor.
122       On 12 September 2001, Dr O’Doherty considered the plaintiff was fit for alternate duties, with various restrictions and a maximum lifting weight of five kilograms.
123       When the plaintiff next consulted Dr O’Doherty on 24 September 2001, Dr O’Doherty felt that the plaintiff was much improved and he was allowed to drive a forklift until next review. Dr O’Doherty diagnosed a strained lumbar spine and strained knee joints from constant bending and lifting at work. He advised a gradual return to work, as the plaintiff’s condition improved with physiotherapy.
124       Dr O’Doherty further reported on 12 October 2001 that the plaintiff had certainly improved over the past few weeks, and he was keen for him to attempt to return to work. He noted at that stage the fact the defendant had told the plaintiff that no light duties made this more difficult, so Dr O’Doherty suggested the plaintiff could be sent back for a couple of days a week and increase his hours when he was able to.
125       Dr Hall provided a report dated 2 April 2003, noting he attended the plaintiff from time to time prior to his accident on 28 September 1999 and 21 March 2001. There was no reported back pain at that time.
126       On 1 January 2002, the plaintiff reported continuing low back pain radiating into the buttocks.
127       Dr Hall referred the plaintiff to orthopaedic surgeon, Mr Williamson.
128       Dr Hall noted the plaintiff had a number of other problems related to alcohol, benzodiazepine dependence and possible analgesic excess. In Dr Hall’s view, also complicating the plaintiff’s recovery and employment were a number of personal and social issues.
129       In that report, Dr Hall noted he last attended the plaintiff on 21 March 2003. Dr Hall’s notes of the plaintiff’s attendances until October 2004 were tendered by the defendant.
130       The plaintiff attended Frankston Health Care, at which Dr Korman practised, on 12 August 2002 for unrelated matters.
131       On 24 October 2002, the plaintiff requested Dr Korman assume care for all aspects of his health, including his back injury.
132       On 4 November 2002, the plaintiff presented with a recrudescence of lower back pain. On 13 November 2002, he complained of ongoing disabling back pain and requested exploration of further options for symptom control, and a WorkCover certificate was provided. The plaintiff was then referred to a rehabilitation specialist.
133       At an early stage, Dr Korman thought the sequence of events as described in the records indicated a temporal relationship between the work activities performed by the plaintiff and the onset of symptoms, suggesting that the duties performed may have contributed to, aggravated or caused the plaintiff’s symptoms. He also noted the anatomical changes demonstrated on the CT scans (28 December 2001 and 11 October 2002) may be related to the plaintiff’s symptoms and may have been caused by his work activities.
134       As of May 2003, Dr Korman thought the plaintiff did not seem to be in a position to work at that stage when he was complaining of constant fluctuating levels of low back pain.
135       Dr Korman noted that subsequent progress included repeated referrals to Dr Rawicki, rehabilitation specialist, none of which were kept by the plaintiff, and a period of incarceration from 16 July 2003 to 28 March 2004, during which WorkCover was suspended.
136       On examination on 13 April 2004, the plaintiff complained of worsening back pain. There was global reduction in spinal range of movement with reduction in straight leg raising without objective deficits. A repeat CT scan at that stage was unchanged.
137       As of August 2004, Dr Korman thought the plaintiff was unable to work.
138       When Dr Korman reported in August 2009, he diagnosed a compressive lumbar disc injury with lower back pain and left sided sciatica based on clinical and radiological findings of lumbar disc prolapses at L3-4, L4-5 and L5-S1, with left S1 nerve root abutment from the prolapsed disc.
139       Dr Korman then thought there were no objective signs of neurological damage and noted the plaintiff continued to suffer from episodic back pain and sciatica. He thought the plaintiff was functionally very limited as a result of his injury.
140       At that stage Dr Korman thought the plaintiff’s impairment was now consistent with a Chronic Pain Syndrome (“CPS”) which was causally related to his initial symptoms. Dr Korman thought the plaintiff had no capacity for employment and that such incapacity was likely to last for the foreseeable future. He thought the plaintiff’s ongoing incapacity could reasonably be ascribed to his initial injury and its physical consequences.
141       At that time, the plaintiff was having Methadone for analgesia. Dr Korman thought it seemed clear the only intervention which could conceivably lead to positive change in the plaintiff’s symptoms was a referral to a multidisciplinary spinal rehabilitation clinic and that the success of such a program would naturally be contingent upon the plaintiff’s motivation, noting he had previously failed to attend such a course.
142       Dr Korman thought that the plaintiff was then demoralised and pessimistic, reducing the likelihood of a functional improvement, resulting in a return to work, and that those psychological issues must be addressed. In the meantime, Dr Korman thought the prognosis for reduction in impairment, functional improvement and increased work capacity was poor.
143       Dr Korman most recently reported on 8 February 2010 in response to a request from the plaintiff’s solicitors regarding the possible non-physical sequelae of the original work injury relating to substance abuse and dependence and mood disturbance.
144       Having referred to other medical opinion in this regard, including those from Dr Wyatt, Dr Stevenson and Mr Dooley, together with the plaintiff’s affidavit evidence, Dr Korman advised the plaintiff suffered from depression and anxiety, documented in medical reports from 2002, prior to his attending the Frankston Clinic, and were stated to be present on and off previously.
145       Dr Kornan mentioned that the plaintiff had issues related to relationship breakdowns in 2001 and also several years ago. The plaintiff regularly presented expressing ideas of frustration or despair with regard to his family problems, housing issues, ongoing back pain, unemployment and boredom, and recurring legal problems. The plaintiff had expressed vague suicidal thoughts at times, and about a year ago slashed his wrists following a domestic dispute.
146       The plaintiff had been attending a mental health nurse for aggression management, and a psychologist fairly regularly over the past year and had been treated with a large array of anti-depressants which had been variably tolerated and largely ineffective.
147       Dr Korman noted the plaintiff had substance abuse and dependency, including alcohol, which was variable and at times an extremely heavy intake of up to a slab and a half a day with occasional inebriated attendance, although the plaintiff usually claimed to drink two ‘long necks’ in a day, as well as cannabis, benzodiazepines, usually Diazepam, and a Methadone program, currently at 80 milligrams a day.
148       Dr Korman noted past alcohol abuse was documented in previous records.
149       Dr Kornan reported that at the initial assessment on 12 August 2002, the plaintiff stated he started using heroin at age thirteen and was currently using $150 a day for three months since the breakdown of his relationship, after seven years abstinence.
150       The plaintiff subsequently stated that, in fact, his Methadone was for treatment of Kapanol dependence and he had, in fact, been getting this prescribed by another general practitioner who had been treating his work-related back injury, and also prescribing benzodiazepines.
151       As at February 2010, the plaintiff was attending a drug and alcohol counsellor and doing a 12-step program.
152       It seemed clear to Dr Korman that the plaintiff had substance issues for most of his adult life and probably from his early teens. He noted that the plaintiff himself had confirmed pre-injury substance abuse in his affidavit. Dr Korman thought that it was also evident that a major trigger of at least the plaintiff’s alcohol abuse had been his volatile relationship and his family breakdown, and ongoing issues related to it.
153       Having said that however, he noted the plaintiff was indeed prescribed morphine, rightly or wrongly, by his general practitioner for treatment of his back pain and despite co-existing heroin dependence, it was not possible to separate his subsequent Methadone program as dependency-related as opposed to analgesic.
154       The plaintiff’s ongoing back complaints which persisted beyond the expected duration based on radiological evidence of resorption of the prolapsed disc, in Dr Korman’s view, were consistent with a CPS and as such, he thought it would be reasonable to suggest that the plaintiff’s opioid Methadone dependence was causally related to his back injury, at least to some extent.
155       Dr Korman thought the plaintiff’s alcohol, cannabis and benzodiazepine dependencies were connected to his injury only to the extent that his mood issues were maintained by his CPS.
156       Dr Korman thought it would be reasonable to suggest that the plaintiff’s CPS was one of a range of issues driving his mood disorder and therefore a causal relationship could be suggested to a certain extent.
157       Dr Korman noted overall, it should be borne in mind that all these issues were present long before the injury and other factors had been present along with the injury. Therefore, at best, the plaintiff’s back injury was only responsible for causing part of his mental health issues and how small that part was would be very difficult to quantify specifically.
158       In cross-examination, Dr Korman explained that he does not really know much about the plaintiff’s plans to return to work as he has not seen him this year, save for examinations in January and July, and the plaintiff he had been seen predominantly by Dr Weiss.

159       Dr Korman was taken through various medical certificates provided by his clinic for the plaintiff. Dr Weiss certified that from June to September 2010, the plaintiff was unfit for any work, as he had also certified from February to May 2010.
160       During 2009 and until February 2010, the plaintiff had been certified fit for alternate duties with no bending lifting or twisting using lower back or prolonged sitting or standing.
161       Dr Korman agreed the plaintiff had fairly significant psychosocial difficulties over the years he treated him and that a component of the plaintiff’s pain was affected by these factors.
162       Dr Korman confirmed he had diagnosed CPS which he later explained in re- examination was where a person had had an insult of some kind that resulted in some kind of painful experience and the pain and the behaviours associated with the pain continued longer than you would have imagined.
163       In August 2003, the plaintiff asked Dr Korman for a referral to Mr Barrett because his solicitors had suggested the plaintiff see him.
164       Treating people with drug addictions is a particular interest of Dr Korman. He explained that the Methadone program involves substituting a less dangerous drug for an opioid addiction and Methadone is used because it is legal.
165       Dr Korman agreed the first interview prior to the plaintiff commencing the Methadone program required a good history of dependency. The plaintiff told him of heroin use and that he started using again three months ago after seven years of “being clean”. He also noted that the plaintiff was using amphetamines rarely. Dr Korman confirmed that on this initial examination, the plaintiff had a lot of track or injection marks in his arm.
166       That history told Dr Korman that the plaintiff had a long history of heroin use and also he was using various other substances, including Diazepam or Valium, 5 milligram tablets, three per day; Mogadon and other benzodiazepines, 5 milligram tablets, two at night, and he was also using amphetamines rarely.
167       The day after the program was started, the plaintiff attended as Dr Korman had obtained a permit. The plaintiff then complained of ongoing low back pain and the Methadone dosage was increased to 30 milligrams for a further three days. It was agreed that the plaintiff would reduce his benzodiazepine intake and a reduction plan was made in this regard.
168       The plaintiff complained of back pain on 15 August 2002.
169       Dr Korman noted on 28 August 2002, the plaintiff had stopped using Kapanol at that time and he had commenced Methadone. The Care Plan had been completed and the plaintiff had commenced a reduction of Valium and was still having one tablet of Mogadon per day. To go on a Methadone program, the plaintiff had to give up Kapanol and “everything else stopped”.
170       Dr Korman confirmed he did not put the plaintiff on a Methadone program because of his use of Kapanol.
171       On 22 April 2004, the plaintiff told Dr Korman he was on Methadone due to back pain, not for heroin. The plaintiff had previously told Dr Korman on examination on 4 December 2002 that Methadone was not as good as morphine for dealing with his back pain.
172       Dr Korman wrote “Methadone due to back pain” in 2004 on the Care Plan because the plaintiff asked him to. Dr Korman does not remember the plaintiff ever telling him he had never taken heroin before.
173       Dr Korman was surprised the plaintiff was being prescribed Valium and Mogadon by Dr Hall from 2002 to 2004 because he did not know the plaintiff was seeing other doctors at the time and the plaintiff had told him he had stopped benzodiazepines.
174       It did not surprise Dr Korman, that when the plaintiff had a pre-anaesthetic assessment at Frankston in 2001, he was noted to have admitted to past recreational drug use involving heroin. Dr Korman made a similar comment when he was told that on 4 November 2002, when the plaintiff presented to Mr White, it was noted by him that the plaintiff’s drugs of choice at that time were cannabis and heroin.
175       Dr Miceli’s notes in late 2002 told Dr Korman the plaintiff was taking Kapanol at a time the plaintiff told him he was not.
176       The plaintiff told Dr Korman soon after he saw him that he would be no longer getting any more scripts from other doctors and that was always part of the arrangement, as it always was with benzodiazepine. The plaintiff told him that on 28 August he had stopped taking Kapanol.
177       Mr Brian Barrett, orthopaedic surgeon, first saw the plaintiff in October 2003, after having organised an MRI scan of the plaintiff’s lumbar spine. Following clinical and radiological examination, Mr Barrett considered the plaintiff had sustained significant ruptures involving his lower lumbar intervertebral disc, causing disabling lower back pain and sciatica.
178       At that stage, Mr Barrett thought the next diagnostic step was a lumbar myelogram to confirm the diagnosis and gauge the severity of the lumbar disc ruptures and prolapses.
179       Mr Barrett re-examined the plaintiff on 15 February 2005, the plaintiff having failed to attend appointments in November 2004 and January 2005.
180       On re-examination, the plaintiff said his symptoms were similar to those described previously and Mr Barrett’s findings were similar, except the plaintiff’s lumbar spinal range was somewhat more restricted.
181       Having undergone a myelogram on 27 March 2006, the plaintiff “finally reappeared” at Mr Barrett’s rooms in May 2006.
182       Mr Barrett explained to him that operative treatment was not likely to be of significant help, particularly as the plaintiff had four of his five discs ruptured, injuries that were not likely to heal or repair. He told the plaintiff that in the future he would be confined to lighter forms of work, where there was no prolonged stooping or heavy lifting situations.
183       In Mr Barrett’s opinion, the plaintiff had sustained painful ruptures involving four of his five lumbar intervertebral discs. The three lower discs were most seriously affected, with posterior prolapses and bulges significantly constricting the lumbar thecal sac, particularly at L3-4 and L4-5 levels.
184       Mr Barrett considered the incident of 6 August 2001 was a significant onset of lower back pain, causing the plaintiff to go off work for a week. In Mr Barrett’s view, that would have caused some disruptions at that time to produce the plaintiff’s symptoms.
185       Mr Barrett noted the subsequent dramatic and severe attack of lower back pain on the said date, with the plaintiff’s legs going numb while lifting a twenty five kilogram box, was clearly a significant increase of the disc disruptions already initiated by the earlier incident.
186       Mr Barrett thought operative treatment was not feasible unless the plaintiff had severe sciatic symptoms.
187       Mr Barrett considered the multiple lumbar disc ruptures were of a serious nature and were physical and organic in origin. He considered the plaintiff had sustained a serious injury with marked loss of function and impairment of his lumbar spine.
188       Mr Barrett noted lumbar disc ruptures of this type and seriousness had no capacity to heal or repair, and it was likely that the plaintiff’s loss of function and disability would continue into the foreseeable future.
189       In his view, on the most recent examination on 8 May 2006, the plaintiff certainly had no capacity for even light and limited employment, and that was likely to continue into the foreseeable future, and was a direct result of the physical injury sustained to his lumbar spine.
190       The plaintiff was examined by Dr Wahr, psychiatrist, on 11 August 2009.
191       At that stage, the plaintiff was taking 80 milligrams of Methadone a day; Voltaren tablets; Tramadol as needed; Valium, 5 milligram tablets, three times a day; and Zoloft, one 100 milligram tablet a day.
192       The plaintiff complained to Dr Wahr of low back, left knee and foot pain. He said he was stressed and had trouble sleeping.
193       On direct questioning, the plaintiff said he forgot a few things, but his concentration was not too bad. His thinking was a bit mixed up, he was anxious, but he was not irritable.
194       The plaintiff told Dr Wahr he drank between six and twenty four stubbies a day, and that had been going on since three years ago, because he was bored. The plaintiff also told Dr Wahr that he smoked cannabis.
195       On mental status examination, the plaintiff’s affect was anxious. There was no evidence of delusions or thought disorder. There was evidence of an anxious and depressed affect, and his concentration was only reasonable.
196       Dr Wahr concluded the plaintiff was suffering from an agitated depressive reaction relating to excessive alcohol use and cannabis use. He thought the plaintiff could not work, from a psychiatric viewpoint alone. He considered the plaintiff required treatment consisting of supportive psychiatric psychotherapy and monitoring of psychotropic medication in significant doses. He thought obviously the plaintiff should stop using cannabis and alcohol.

Vocational Evidence
197       Leigh Wilkinson, psychologist from HDA Medical Group, provided a vocational assessment, after having interviewed the plaintiff on 17 November 2008.
198       Mr Wilkinson concluded, given the information provided and from his assessment, the plaintiff’s current physical limitations, depressive symptoms and other barriers, such as his reduced reliability and productivity, length of unemployment and lack of sedentary skills, would prevent him from returning to any form of employment in the foreseeable future.
199       Mr Wilkinson noted the plaintiff had been chronically unwell for over seven years and in his opinion, the plaintiff did not have a current work capacity. Further, he considered the plaintiff would not be able to return to work in a labour market reasonably accessible to him, and it was reasonable to say that no employer would knowingly and willingly hire the plaintiff over other equally qualified and skilled candidates.

Investigations
200       Dr O’Doherty organised an x-ray of the plaintiff’s lumbosacral spine on 3 September 2001.
201       The radiologist reported that the inferior margin of the L1-2 vertebral body was a little irregular with osteophytic lipping evident. Otherwise, vertebral body and disc space heights were satisfactory and pedicles were intact.
202       Dr O’Doherty organised a CT scan of the plaintiff’s lumbosacral spine on 28 December 2001. The report thereof set out there was a small central L3-4 protrusion and a moderate L4-5 central protrusion. There was a broadbased left L5-S1 paracentral protrusion. There was relatively reduced canal dimensions at L3-4 and L4-5 levels, which it was noted may give rise to a functional spinal stenosis.
203       Dr Miceli organised a CT scan of the plaintiff’s lumbar spine on 16 October 2002 which showed a central disc protrusion at the lower three lumbar levels.
204       Dr Korman organised a CT scan of the plaintiff’s lumbar spine on 19 April 2004. It was noted overall comparison with the previous study of December 2001 showed no appreciable change.
205       An MRI scan of the lumbar spine and plain x-ray was requested by Mr Barrett on 30 October 2004.
206       It was reported there were disc degenerative changes at L1-2, L3-4, L4-5 and L5-S1. There were posterior annular tears and bulges seen at the lower lumbar discs. There was mild L3-4 and moderate L4-5 canal stenosis. It was noted comparison with different modalities was always problematic, but appearances appear to be quite similar when compared to the previous CT examination (outside films dated 19 April 2001).
207       Mr Barrett organised a lumbar myelogram on 27 March 2006. It was reported there was moderate to severe constriction of the thecal sac at L3-4 and L4-5 levels, due predominantly to disc bulges, which increased slightly in size with weight bearing. The right L4 nerve root was displaced in the L3-4 lateral recess, but no nerve compression was seen.

Employment Documents
208       By letter dated 29 September 2000, the plaintiff was advised by the defendant that, as he had proved himself to be an asset to the defendant company, permanent employment was offered.
209       There was an Incident Near Miss Report Form relating to an incident on 6 August 2001, noting “flooring affecting knees and back, standing on concrete floor”.
210       The plaintiff received a final written warning letter from the defendant dated 22 August 2001. Therein, it was noted there was a punctuality problem, with there having been no improvement since an earlier warning on 14 June 2001. The plaintiff was advised that of the forty two working days since that day, there had been ten days where he had either started late or left work early. The plaintiff was advised if there was no immediate improvement, his employment would be terminated.
211       By letter dated 13 December 2001, the plaintiff was advised by the defendant of its plan to relocate to Bendigo, and that given that the defendant did not wish to relocate with the plaintiff to that location, the plaintiff was advised he would be made redundant, effective on 18 January 2002.

The Defendant’s Medical Evidence
212       Mr Peter Scott, orthopaedic surgeon, first examined the plaintiff on behalf of QBE on 8 April 2002.
213       The plaintiff was then taking Endone and MS Contin for analgesic purposes, together with analgesics and anti-inflammatories. He was also taking Valium and Kapanol.
214       The plaintiff complained of backache present most of the time but worse with prolonged standing or sitting. He also had problems with left sided sciatica, with pain radiating from his back into his buttocks and into his thigh.
215       On initial examination, the plaintiff complained of tenderness to deep palpation along the lumbosacral spine to the left of the midline posteriorly. Straight leg raising on the left was to seventy degrees from the horizontal, associated with backache, but no sciatica. There was a full range of movement of all lower limbs and no neurological abnormality. There was some restriction of thoraco spine movement.
216       Mr Scott had available to him the December 2001 CT scan.
217       As a result of work performed in August 2001, Mr Scott thought the plaintiff had developed an acute back strain or musculoligamentous injury, together with initiation or aggravation of underlying multilevel discogenic lesions, together with a resultant compromise of the left S1 nerve root. He also thought the plaintiff had developed an anxious reaction which may be magnifying his disability.
218       Mr Scott thought employment had been a significant contributing factor and he considered the plaintiff did not have a capacity for his pre accident employment. He considered the plaintiff was fit for very light work part time, not requiring prolonged postures or lifting in excess of five kilograms. Realistically, that suggested to Mr Scott that the plaintiff would not be able to return to his work as a storeman.
219       Mr Scott disagreed with Dr Homolka’s opinion that there had been a large measure of recovery. He thought the plaintiff had clinical and radiological evidence of significant disc pathology at multiple levels. He noted there appeared to have been very little improvement with treatment undertaken to date and consideration may have to be given to the use of an epidural injection.
220       Mr Scott re-examined the plaintiff on 2 September 2002, having been provided with the IWCC reports. At that time the plaintiff volunteered he had been looking for light work, such as cleaning or light store work.
221       Mr Scott noted that the plaintiff’s backache appeared to be less severe and tended to come and go, particularly with bending and lifting and prolonged postures. There was less severe and more occasional left lower limb pain radiating from the back to the left thigh. There was persistent anxiety and frustration.
222       The plaintiff told Mr Scott he had been drinking heavily and at the moment was drinking no more than two large bottles of light beer per day.
223       On examination, there was reduced straight leg raising compared to the earlier examination and there was again tenderness to deep palpation and restriction of thoracolumbar movement.
224       Mr Scott again concluded the plaintiff had sustained an acute back strain or musculoligamentous injury, together with initiation of multilevel discogenic disease in his lumbosacral spine as a result of his August 2001 work. In addition, he thought the plaintiff continued to exhibit features suggestive of left sided lumbosacral nerve root irritation although those symptoms appeared to be less severe. Mr Scott noted the situation had been complicated by the development of an anxiety response.
225       Mr Scott thought that some improvement appeared to have occurred and the plaintiff was showing some enthusiasm to return to the workforce, albeit on light duties only.
226       Mr Scott repeated the work restrictions he had suggested previously. In terms of further treatment, he noted if symptoms of lumbosacral nerve root irritation continued, consideration may still be given to the use of an epidural injection.
227       Dr Clive Kenna, consultant in musculoskeletal pain management, examined the plaintiff on 27 May 2004. The plaintiff then complained of back pain with associated symptoms radiating to the back of the left buttock, down the left knee, but no further.
228       Dr Kenna thought it appeared the plaintiff sustained discogenic injury to his back as a result of his work duties. He noted management of the plaintiff’s condition had become complicated. It appeared the plaintiff’s claim was terminated in September 2002 due to non compliance with rehabilitation. Following that outcome, when compensation payments were ceased, the plaintiff applied for a Disability Pension and he remained in receipt of medical expenses until July 2003. The plaintiff was then incarcerated until March 2004.
229       The plaintiff told Dr Kenna his condition had not really improved. He complained of back pain with symptoms feathering down the back of his left leg.
230       On clinical examination, Dr Kenna considered neurologically the left S1 reflex was sluggish and was fatigued on repetition in comparison with the right. Left S1 nerve root power was also slightly decreased and there was a slight alteration of sensation in the S1 dermatome. Straight leg raising and tripod tests were positive, with symptoms feathering down the back of the left leg. When the right leg was raised, the left leg was also more reduced.
231       Dr Kenna thought that the plaintiff had a chronic lumbar disability. He noted there was no specific work related injury per se, but subsequently the plaintiff started to experience back pain with associated left leg symptoms. Whilst Dr Kenna commented there was no specific injury, noting the further exacerbation on the said date, Dr Kenna thought there was an ongoing lingering symptomatology from that incident.
232       He thought that the plaintiff had clearly improved over time but never fully recovered. In his view, the plaintiff had, at worst, a mild partial incapacity but he was unable to effect a return to work on anything other than light or modified duties on a full time basis.
233       In the absence of other residual symptoms, Dr Kenna believed it reasonable to accept that, with regard to the plaintiff’s back and left leg symptoms, which were compatible with the radiological findings of a discal protrusion, they appeared to be related to the nature of his work.

234       Dr Kenna thought the key nature of the plaintiff’s condition was discogenic back pain with a slow resolution of symptoms. He noted the serial CT scans showed the discal protrusions were slowly resolving and that the main discogenic pathology was now clearly at L5-S1.
235       Dr Kenna accepted that the plaintiff’s employment had been a significant contributing factor to the development of his problem and had certainly resulted in incapacity for employment but there had been some gradual improvement. Dr Kenna thought the plaintiff would not be able to return to pre-injury duties but was fit and capable of performing light or modified duties.
236       Noting the plaintiff had a number of difficulties in his life, Dr Kenna thought, nevertheless, it appeared on balance that nothing had happened that could have caused or further exacerbated his condition since the August injury. Dr Kenna considered the prognosis had to be guarded in view of the substantial time the plaintiff had been away from work.
237       In view of the plaintiff’s clinical presentation of reduced straight leg raising and positive tripod tests, Dr Kenna thought he would be a good candidate for an injection. He noted the plaintiff’s general practitioner was clearly concerned about the plaintiff being on any substantive medication due to previous problems and medication concerns. Dr Kenna thought the plaintiff technically could be a very poor candidate for manual therapy but he might find some basic guidance helpful with regard to an exercise program.
238       Mr Michael Shannon, orthopaedic surgeon, first examined the plaintiff on 4 February 2005.
239       At that stage, the plaintiff had been taking oral morphine, up to 120 milligrams a day. Currently he was taking 95 milligrams of Methadone a day and he had stopped anti-inflammatory medication because of gastrointestinal bleeding.
240       The plaintiff described ongoing low back pain, radiating to the left buttock and occasionally the left leg, which went numb.
241       On examination, thoracolumbar flexion was limited by half and other movements were limited by about a third. Straight leg raising was to 40 degrees, improving to 60 degrees in a sitting position. There was no muscle wasting and reflexes were brisk.
242       Mr Shannon noted the CT and MRI scans performed to that date.
243       Mr Shannon concluded the plaintiff was suffering from multilevel lumbar degenerative disc degeneration with disc bulging. He thought that the plaintiff did not have a focal disc prolapse although he had annular tears as part of the degenerative process.
244       Nevertheless, Mr Shannon commented the plaintiff had quite severe degenerative change for his age and clearly this had not been caused by work although there had been probably some permanent aggravation and acceleration.
245       As he then presented, Mr Shannon thought the plaintiff was not really fit for physical work involving prolonged or repetitive bending or lifting of more than ten to fifteen kilograms. He thought however, the plaintiff was not totally incapacitated and his treatment was likely to remain conservative.
246       In addition to his back problem, Mr Shannon noted the plaintiff apparently had become addicted to morphine and was currently on Methadone to try and wean him off the morphine but still control his pain. Mr Shannon thought that would be an impediment to the plaintiff obtaining employment.
247       A number of medical records were forwarded to Mr Shannon relating to the plaintiff’s involvement in a transport accident in May 2001. Mr Shannon noted that these documents did not cause him to change his view as they did not relate to the plaintiff’s back in any significant way.
248       The plaintiff was examined by Dr Mary Wyatt, occupational physician, on two occasions, initially on 1 August 2007 and more recently on 28 May 2008.
249       On re-examination, the plaintiff indicated his problem was much the same, confirming he had continued soreness across his low back with radiation into the left buttock and down the back of his left thigh. The plaintiff told Dr Wyatt that he had attended a few different alcohol rehabilitation services. He also advised her of recent problems in his domestic situation.
250       On re-examination, the plaintiff did not smell of alcohol as he did on the earlier assessment.
251       Dr Wyatt commented there was an absence of non physical findings. Range of back movement was demonstrated to be mildly restricted. The plaintiff did not have difficulty with straight leg raising at this examination. He indicated generalised tenderness over the low back, more over the lower lumbar spine, and he had brisk reflexes in both lower lumbar limbs.
252       Dr Wyatt concluded the plaintiff had chronic low back pain, which was not an uncommon back problem, without significant sciatica. She thought psychosocial factors were playing a major part.
253       Having been forwarded Dr Stevenson’s report where he stated that the plaintiff’s back condition was normal for members of the community and not work related, Dr Wyatt thought if one looked at the breadth of research, there was enough to accept that the nature of the plaintiff’s work over years requiring regular bending and manual handling had contributed in some part to his backache.
254       As Dr Wyatt stated following the first examination, the work contribution to the plaintiff’s back problem was relatively small. She thought the advice he had been given was inappropriate and that he should be encouraged to return to everyday activities. She noted the plaintiff had other significant issues, such as drug and alcohol use, and that they were having a greater impact on his reported capacity for work.
255       Dr Wyatt concluded that with a reasonable degree of fitness and sensible attention to the way things are done, the plaintiff should be able to return to most if not all of his pre injury duties. She thought from a physical perspective he was fit for a broad range of employment, including process work duties, manual handling tasks and driving duties on a full time basis. She noted his general presentation suggested alcohol and drug addiction were impediments to returning to work at that time. She thought appropriate management was basically self management.
256       In her view, evidence based medicine did not suggest there was a respectable foundation for labelling the plaintiff as having anything more than a typical back problem. She noted his disc problems were common on MRI scan and had been shown to be common in people who had never had back complaints.
257       Dr Wyatt concluded there was no evidence to suggest the plaintiff’s back problem was out of the ordinary and should result in significant physical disability.
258       Dr Wyatt noted at that first examination, the plaintiff’s other life issues had a substantial impact on his general presentation and she believed those were the overriding factors in his presentation. Having noted the two work episodes, one in early and the other later in August 2001, she thought they had contributed equally to the plaintiff’s back problem early on. She thought the work contribution had been temporary and ceased as of the first examination. She noted the incident described was not high trauma and the work contribution would have ceased by two to three years after the incident occurred. If it were not for the plaintiff’s drug and alcohol and psychosocial issues, she thought at that stage he would be fit for suitable employment. She considered that full time work, including as a machine operator, assembler or packer would be appropriate tasks for the plaintiff.
259       Dr Peter Stevenson, consultant physician, saw the plaintiff on 6 August 2007.
260       On examination, the plaintiff appeared to able to forward flex to 60 degrees, touching the tips of his fingers past his knee and one third down his shin. Extension and rotation were almost normal. There was no neurological abnormality.
261       Dr Stevenson concluded physical examination showed modest restriction of spinal movement. He noted the plaintiff had been prescribed opiates, allegedly for benign pain. In his view, investigations showed age related degenerative disease at multiple levels but without clear evidence of neurological compromise.
262       Dr Stevenson noted the plaintiff still complained of backache and left leg pain but did not have sciatic signs. He thought the whole illness had occurred against a background of opiate ingestion for unclear but possible non medical reasons.
263       Dr Stevenson considered there was a credibly described history of the onset of pain at work with the heavy lifting, and that could have occasioned an episode of non specific back pain. He considered that if earlier medical examinations confirmed clinical evidence of radiculopathy, the plaintiff’s work could have occasioned but not totally caused such a condition which Dr Stevenson thought had now resolved.
264       Dr Stevenson considered the underlying organic condition of the plaintiff’s spine was degenerative disease. He did not think work seemed to have had a great deal to do with the first incident but the work involvement in the second “was more impressive, giving the plaintiff a nasty bout of sciatica”.
265       Dr Stevenson thought the plaintiff had no good medical reason to take morphine. He could not find any good evidence that the plaintiff had a major injury to his disc, noting that protrusions were genetically determined; tears were common in the asymptomatic population and did not necessarily cause pain.
266       In Dr Stevenson’s view, one would give the plaintiff the benefit of the doubt on short term, non specific back pain but the claim of pain needing opiates due to a physical injury to the back was improbable. Dr Stevenson thought there was no traumatic pathology, and psychosocial factors had been found important in the complaint of back pain noting the plaintiff had a troubled life and a predisposition to opiates.
267       Dr Stevenson considered whether the plaintiff returned to work would depend predominantly on social and attitudinal factors. He noted the plaintiff appeared to have few skills for a sedentary occupation and that the plaintiff could go back to hospitality if he wanted to.
268       Dr Stevenson could find no serious reason to conclude the plaintiff had a permanent crippling injury, and he considered the plaintiff’s future would be determined more by psychosocial than by physical factors.
269       The plaintiff was initially examined by Mr Jonathan Hooper, orthopaedic surgeon, on 22 August 2007.
270       At that stage, on examination lumbar forward flexion was to 70 degrees, extension was to 20 degrees, as were lateral flexion and rotation, and there were no neurological signs present.
271       Mr Hooper viewed available investigations, noting the plaintiff had multilevel significant disc degenerative disease and at the lower end of his spine he had significant bulging of the discs with thecal impingement.
272       The plaintiff told Mr Hooper he was then walking a kilometre a day and he had been told that surgery was inappropriate. The plaintiff advised that his troubles were intermittent and he did not know which days would be good or bad and that he also got night pain.
273       Mr Hooper initially thought the plaintiff had disc degenerative disease in the lumbar spine aggravated by work. He thought it could be argued that the aggravation had ceased and that the plaintiff’s present symptoms were due to the underlying pathology in his back.
274       Mr Hooper considered the plaintiff was capable of doing light work and noted the plaintiff was keen to get back to it and that every effort should be made to find him a job. He also considered the plaintiff’s management should be on conservative lines.
275       Whilst there had been an aggravation of back and leg pain, Mr Hooper thought that had subsequently subsided, and the plaintiff’s symptoms were now due to underlying pathology.
276       In Mr Hooper’s view, the plaintiff was unable to participate in his pre injury work but that he thought he was capable of doing light work. He considered that the plaintiff would be likely to continue with back pain, and some degree of leg pain and was unlikely to improve dramatically as time went on.
277       On re-examination on 26 May 2008, the plaintiff said there had been no change in his condition. He was still hoping to return to work.
278       On examination, the plaintiff had a virtually full range of motion for a man of his age but his movements were jerky and hesitant and when flexing, he “climbed up his legs.”
279       Mr Hooper confirmed his earlier views. He thought it imperative the plaintiff got himself into some form of light work but that he would not be able to return to heavy work or work involving bending, lifting or vibratory work.
280       Mr Brendan Dooley, orthopaedic surgeon, examined the plaintiff on 21 July 2008.
281       Having noted the radiology up until the myelogram of 27 March 2006, Mr Dooley thought the lumbosacral disc prolapse had gradually resorbed, for in December 2001, it had been of moderate size and on the October 2002 CT scan, was of a moderately large size and by 2006 it appeared to have largely resolved. Mr Dooley thought that the October 2004 MRI scan, like the two prior CT scans, had shown a left sided disc prolapse.
282       The plaintiff told Mr Dooley that he had taken up a self management program walking long distances and that he walked at least ten to fifteen kilometres a day, usually in two phases.
283       The plaintiff told Mr Dooley he had now reached the stage where he felt he could resume work and he was thinking of going to Centrelink for a rehabilitation program and doing a TAFE course in computers.
284       On examination, Mr Dooley noted there was a surprisingly good range of movements in the lumbosacral spine without any evidence of muscle spasm. There was no muscle wasting or weakness in either of the lower extremities and no sensory loss.
285       Mr Dooley thought the plaintiff suffered from lumbosacral disc degenerative change and that he had ongoing psychosocial problems.
286       Noting the incident on the said date, Mr Dooley’s commented that the plaintiff developed problems with natural onset of lumbosacral disc prolapse causing pain and sciatica, but as often happened, gradually over the period since, the disc prolapse had resorbed and currently the plaintiff had no signs of disc prolapse or physical injury in his low back.
287       Mr Dooley considered that, unfortunately, in the rehabilitation phase, the plaintiff was prescribed morphine and developed an addiction. Whilst the plaintiff was still on Methadone, 90 millilitres a day, from a physical point of view, the plaintiff admitted he was now fit to resume work.
288       Mr Dooley thought it doubtful whether the nature of the plaintiff’s work significantly aggravated his lumbosacral disc degenerative changes with the onset of prolapse. Mr Dooley considered it more likely that the onset of prolapse was of natural origin or cause and there was no precipitating injury at the outset of his problem. Be that as it may, Mr Dooley thought the disc prolapse had resolved and there were no signs of physical injury persisting.
289       Mr Dooley thought the plaintiff was fit to undertake suitable alternative duties either as a barman or in light sales work.
290       Mr Dooley found no non organic or functional features in the plaintiff’s presentation. He thought the plaintiff’s drug addiction and psychosocial issues probably were the main restricting factors in preventing him returning to work, combined with poor motivation.
291       Mr Dooley thought the plaintiff’s ability to walk such long distances of itself indicated the prolapse and sciatica had completely or largely resolved and that was confirmed on physical examination.

Other Documentation
292       The defendant relied on a letter to Dr Korman from Dr Miceli dated 24 October 2002. In that correspondence, Dr Miceli advised Dr Korman that his professional relationship with the plaintiff had been undermined to the extent that he felt he could not continue to treat him because it had become clear after two drug tests that the plaintiff was not taking the morphine which he was requesting and stating that he was taking himself, and being prescribed for his back pain.
293       Dr Miceli advised he had a suspicion the plaintiff may have been giving the morphine to his girlfriend. Dr Miceli also noted the drug screens showed the presence of Methadone from some source unknown to him.
294       Dr Miceli advised the plaintiff was continuously intoxicated every time he saw him and it was usually to the point where sensible discussion was impossible. Most recently, the plaintiff’s blood alcohol at the time of consultation was .14, despite the plaintiff categorically having denied having anything to drink except a half a stubby the entire day.
295       The defendant also tendered the first page of Dr Korman’s clinical notes of the attendance on 12 August 2002 which set out the plaintiff’s use of heroin starting at the age of 1thirteen.
296       The Frankston Health Care Plan was completed by Dr Korman on 28 August 2002. A notation on that Care Plan made on 22 April 2004 at the plaintiff’s request set out: “On Methadone due to back pain”.
297       The notes of Dr Hall’s practice were tendered setting out details of attendances from 1999 until October 2004. Prescriptions for benzodiazepines were noted after the plaintiff had commenced the methadone program in August 2002 until he stopped attending the practice in October 2004.
298       The defendant tendered the plaintiff’s taxation returns which set out the following:

Financial Year Gross Earnings Employer

1998 $7,725 Newstart
1999 $7,100 Centrelink
$2,834 from two employers

2000 $10,036 Milnes

$3,673 Peninsula Pest Control
$3,492 DSS

2001 $25,658 Milnes

Overview
299       I accept the plaintiff sustained a compensable injury to his lower back as a result of his work duties in July and August 2001 and in an incident on 29 August 2001.
300       Whilst there are differing medical views in this regard, I accept that as a result of these work duties, the plaintiff suffered an aggravation of pre-existing asymptomatic degenerative changes in his lumbar spine
301       The plaintiff’s weekly payments claim was originally accepted in relation to a back injury suffered on 7 August 2001.
302       As was ultimately conceded by counsel for the defendant, this is a “range” case where the plaintiff has a significant, but not a serious injury.

The Plaintiff’s Credit
303       Much of the cross-examination in this case was directed towards the plaintiff’s credit, particularly in relation to the nature of his pre-injury drug use and his treatment and drug intake after August 2001.
304       Whilst I found the plaintiff to be quite a frank witness who did not overstate the level of his pain and disability and conceded some improvement in his condition in the witness box, there were significant matters which otherwise gave me concern as to the credibility of his evidence.
305       Although attempts were made by his counsel to overcome the issue of heroin use prior to the incident, I accept that the plaintiff in fact told Dr Korman he had been a heroin user at an early age and had recommenced use some months prior to attending Dr Korman because of relationship problems.
306       Dr Korman is an experienced treater of patients with drug dependency problems. I accept he took a thorough history of the plaintiff’s drug history prior to placing him on the Methadone program. Further, he observed tracks on the plaintiff’s arms on the initial examination on 12 August 2002.

307       I accept the plaintiff gave a similar history of heroin use to PenDAP in 2002 and also to the Frankston Hospital prior to admission for surgery in 2001.
308       As the plaintiff said he had never used heroin, his counsel conceded it was clear the plaintiff had lied to Dr Korman or, alternatively, to both Dr Korman and the Court. However, the plaintiff made no admissions in this regard when giving evidence.
309       Further, I accept that the plaintiff “hoodwinked” his treating doctors as to his drug use during 2002-04. On his own admission, he was addicted to benzodiazepines in 2002 and conceded at times during that year that he was being prescribed this medication by two clinics at the same time.
310       The plaintiff continued to obtain prescriptions for benzodiazepines during 2003 and into 2004 from the Premier Health Clinic, after having been put on the Methadone program by Dr Korman in August 2002. On the commencement of that program, the plaintiff had agreed to cease his benzodiazepine use, and advised Dr Korman he had done so.
311       Further, the plaintiff was obtaining Kapanol from Dr Miceli for a couple of months in late 2002 whist on the Methadone program. At that stage, in view of negative drug screens, Dr Miceli thought the plaintiff was providing the Kapanol prescribed to him to other people and he was no longer prepared to treat the plaintiff. Whether the plaintiff was passing this medication onto others or he was using it himself, neither scenario is particularly favourable to his application.
312       In my view, these matters impact in a negative way as to my assessment of the plaintiff’s credit in this case.
313       However, leaving issues of credit to one side, when all the evidence is considered as to the consequences of the plaintiff’s back condition, I am not satisfied that the plaintiff has a serious injury in relation to his lumbar spine.

Consequences
314       Counsel for the plaintiff submitted the strongest component of the claim for serious injury in terms of pain and suffering was the interference with the plaintiff’s earning capacity because of his back injury.
315       It was submitted the work consequences were important, because the plaintiff was thirty-one, with a low back injury resulting in chronic back pain that was going to affect him for the rest of his life; he was on medication; his condition was not treatable surgically and his range of employment opportunities was necessarily limited because of his upbringing and psychosocial factors.
316       Further, it was submitted that the application was not put on the basis that the plaintiff was a man who enjoyed his work or loved it; it was put on the basis “every human being needs to work” and now, because of his back condition, the plaintiff’s opportunities are limited.
317       It was conceded by counsel for the plaintiff that it was true that the plaintiff’s work record did not show a man who was highly motivated to go out and work in any event.
318       Clearly the plaintiff had a modest work history before his employment with the defendant. Whilst he deposed he worked for Pest Control for a year in 1999, his gross earnings from that job in 1999/2000 were only $3,600. In the previous financial year, his earnings totalled $2,800. He earned $15,000 working with the defendant in 1999/2000 and $25,658 in 2000/1.
319       Further, I accept that the plaintiff’s employment future with the defendant was somewhat precarious before he ceased work in late August 2001, having received a second written warning threatening to terminate his employment a week earlier as his punctuality had been an ongoing problem since June.
320       The plaintiff was certified fit for light duties, ceasing work in late August 2001 as light duties were not available.
321       Over the following months, the plaintiff reported a continuing improvement in his condition to Dr O’Doherty, who was continuing to certify the plaintiff fit for light work with a lifting restriction of five kilograms as at January 2002 when he was retrenched.
322       Around this time, the plaintiff was involved in a number of assaults associated with alcohol and cannabis use. He also moved from Mornington to Hastings, having separated from his partner Kelly in October 2001.
323       Whilst counsel for the defendant conceded that the plaintiff was not fit for heavy unrestricted work, it was submitted that he still has a capacity for work as supported by medical opinion, and his own evidence and his ability to cope with limited recent part time work.
324       I accept this is the case at the present time.
325       I do not accept the now somewhat outdated view of Mr Barrett in 2006 and that of the vocational assessor in 2008 that the plaintiff does not have a capacity for suitable employment, given his recent work history and current physical condition.
326       There was no explanation why Dr Weiss, in more recent times, has certified the plaintiff as totally unfit, when Dr Korman certified him fit for part time work until earlier this year.
327       There has been no deterioration in the plaintiff’s condition to warrant this change in certification and in fact on his own admission the plaintiff’s condition has significantly improved with a much reduced level of pain.
328       As evidenced by his pamphleting work, his business plans and also his willingness to take on packing or light process work and his belief he could do so even in the event of a flare-up of his condition, the plaintiff is fit for a range of light work as suggested by Mr Hooper and Mr Dooley.
329       The plaintiff was able to do the pamphleting work, the amount of which he said he could have doubled had it been available. That job involved walking ten to fifteen kilometres per day. The plaintiff did not stop work in August last year because of any back pain but because of the weather and perhaps concerns about possible future incarceration.
330       Further evidence of the plaintiff’s work capacity and willingness to be work are the steps taken by him to undertake a new career path, having obtained a wildlife licence last September and awaiting approval to undertake a business management course thought Skill Share to help him set up his new venture. This proposed career is one the plaintiff can pursue without any interference from his back condition.
331       Although the plaintiff did not know whether he could reliably attend paid work from Monday to Friday because his back pain is too unpredictable, when he has a flare-up once a month he said that would be able to continue doing duties that involved “sort of like duties, walking and probably some light work in a factory, some picking”, having some breaks. He would probably have to be able to sit and stand but for the rest of the time he is pretty right.
332       I am not satisfied that the plaintiff has a serious injury in relation to employment-related consequences. Whilst he has had a very difficult life, the plaintiff has a long history of drug dependency and alcohol problems. His work record prior to the injury in August 2001 was poor and the future of his job with the defendant was somewhat precarious given his attendance problems.
333       I accept that with this history for the rest of his adult life, the plaintiff was likely to have had an ongoing pattern of being in and out of employment, complicated by continuing dependency problems.
334       The plaintiff is presently capable of light work, as evidenced by his pamphleting job. He is prepared to undertake light process work which on his own evidence he could continue even in the event of a flare up which only occurs monthly.
335       In my view, the employment consequences of the plaintiff’s back condition, when compared with other impairments in the range of possible impairments, are not serious as defined in the Act.

Pain and Treatment
336       Further, there is no longer the complaint of severe constant pain as the plaintiff previously deposed, and also described to Mr Barrett in 2006.
337       The plaintiff agreed in examination the pain was there and sometimes it was not. “You sort of get a bit of it now and then but it’s not as bad as it used to be. Basically it’s just around the bottom of the buttocks and the lower back on the left side.”
338       Flare-ups only occur about twice a month and when they occur, the plaintiff just takes it a bit easy but he is able to get on with most activities.
339       There has been little involvement of specialists in the plaintiff’s treatment. Whilst Dr Hall referred the plaintiff to Mr Williamson in 2002, the plaintiff did not attend that appointment and there was no follow-up. Mr Barrett appears to be medico-legal examiner rather than a treater, as the first referral to him was at the suggestion of the plaintiff’s solicitors.
340       The plaintiff failed to attend appointments made for him to undergo pain management organised for him by Dr Korman at Caulfield and also with the rehabilitation specialist, Mr Rawicki.
341       In terms of the plaintiff’s medication related to his back condition, counsel for the plaintiff was not asking the Court to accept that the Methadone program was caused by the back injury, but asked the Court to accept that the continuing use of Methadone was part of the plaintiff’s treatment, as set out by Dr Korman, that if the plaintiff had not commenced Methadone, he would have required other forms of pain relief.
342       Given the present level and frequency of the plaintiff’s pain, it is difficult to accept that he requires Methadone for pain relief. He does, however, take Tramadol on an “as needs” basis. Further, with the unclear state of the evidence as to the plaintiff’s pre-injury heroin use and the involvement of this addiction in the need for the Methadone program, in my view, the Methadone is necessary really more in relation to drug dependency rather than as a painkiller for the plaintiff’s back condition.
343       There is no evidence that the plaintiff’s benzodiazepine habit is any way related to the injury. This addiction was present before the injury, having been an ongoing problem since the plaintiff was a teenager.
344       I do not accept that the other non-work-related consequences of the plaintiff’s back condition are serious.
345       The plaintiff is able to maintain his own household and look after himself. Significantly, he is also able to care for his mother and spends half his time as her official carer, receiving a pension for that assistance. Even when he has a monthly flare-up of his back pain, he “does not bother doing much at the time, I just do as I can”. If his back was very irritable, he waited until later to do the cleaning and other tasks for his mother.
346       The plaintiff still sees and interacts with his teenage children on holidays and weekends. He takes them out to beach, movies and normal activities with no difficulty, and is involved in their various activities without difficulty. He does have some problems playing with and picking up the younger children, but he thinks that his back dos not really affect his activities with them.
347       In terms of his mobility, the plaintiff is able to walk very long distances, as evidenced by his pamphleting work. His ability to drive is not affected by his back condition as he has chosen not to reapply for his licence.
348       Taking into account all of the evidence, I am not satisfied that the pain and suffering consequences of the impairment to the plaintiff’s lumbar spine are “serious”.
349       Accordingly, the plaintiff’s application is dismissed.

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1998	$7,725	Newstart
1999	$7,100	Centrelink
$2,834	from two employers
2000	$10,036	Milnes

[2010] VCC 1975

6 December 2010