De Santis v Victorian WorkCover Authority
[2021] VCC 279
•22 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01720
| MICHAEL PETER De SANTIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 March 2021 | |
DATE OF JUDGMENT: | 22 March 2021 | |
CASE MAY BE CITED AS: | De Santis v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 279 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the lower back – pain and suffering only – range
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J J Fitzpatrick | Slater and Gordon Ltd |
| For the Defendant | Mr A W Middleton | Hall & Wilcox |
HER HONOUR:
Preliminary
1 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Crown Coffee International Pty Ltd (“the employer”) on 6 February 2013 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages for pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function said to be impaired is the lumbar spine.
5 An application pursuant to sub-paragraph (c) was withdrawn during the hearing.[1]
[1]Transcript (“T”) 28
6 The impairment of the body function must be permanent.
7 Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities.
9 By ss(38)(c) of the Act, 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, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Haden Engineering Pty Ltd v McKinnon[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2010) 31 VR 1
12 The plaintiff swore two affidavits. He was cross-examined. His partner, Abilene Evans, swore an affidavit on 24 February 2021. Also in evidence were medical reports and other material. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged forty, having been born in March 1981.
14 Having completed Year 12, he had a variety of jobs before commencing work with the employer. After graduating, he worked for a landscape gardening company for about three years and also did some labouring work. He did an apprenticeship as an electrical fitter with Govan Industries, completing the first nine months before being made redundant.
15 On or about 4 December 2005, the plaintiff commenced work with the employer, where he completed his apprenticeship and worked as a service technician.
16 The plaintiff had no back issues before the said date, save for in late 2011 or early 2012 when lifting a coffee machine, he felt a pinch in his back. He reported the incident and continued to work. He did not attend a doctor because he thought he had just pulled a muscle.
17 On the said date, while lifting a coffee machine off the hydraulic platform in the loading dock, the plaintiff experienced excruciating pain in his lower back (“the incident”). He reported the incident to his manager, but was told the job was urgent so he completed it, but in a lot of pain.
18 The following day, the plaintiff attended Parkwood Green Medical Centre (“Parkwood”) complaining of lower back pain. He was referred for a lumbar CT scan, which he had that day. He understood the scan revealed a disc bulge affecting his nerves.
19 The plaintiff has not had any further investigations since the initial scan and did not have the MRI scan in September 2014 that was mentioned in the Parkwood notes.[4]
[4]T4
20 The plaintiff was initially given one prescription for Tramadol and one for Panadeine Forte and not prescribed anything further.[5] He had not taken any other type of medication because “(he)” tried for a bit, (he) was not comfortable with driving and it did not really take away the pain.”[6]
[5]T5
[6]T9
21 The plaintiff hated taking medication and did not feel as though painkillers were much help to him, so he just tried to cope as best he could without medicine.
22 In recent years, he has only taken the occasional light Panadol, but “nothing sort of heavy”. Last year he took Celebrex which had been prescribed for a knee problem.[7]
[7]T21
23 As of December 2019,[8] the plaintiff continued to attend Parkwood for periodic reviews. He agreed that he only attended the clinic for a handful of occasions in respect of his back after 2013.[9]
[8]The first affidavit sworn
[9]T5
Physiotherapy
24 On about 13 February 2013, the plaintiff started first saw Back in Motion for physiotherapy. For the first two to three months, he saw Emma Newton and after she left, he saw Kane Grbac for treatment. The plaintiff continued to attend until October 2013 twice a week, but then stopped because he could not afford the treatment.
25 A printout of WorkCover payments and physiotherapy from Back in Motion from 5 March 2013 through to 21 October 2013, shows attendances approximately twice a week in that period.
26 The employer had “wanted to keep the claim sort of hush, under wraps, and protect the company”, so the plaintiff thought it had been paying the bill until he left. However, this was not the case and he was given the $800 bill. He was in shock because he thought it had been sorted.[10] He did not give it to the employer. He could not afford to pay it so he stopped having treatment.[11]
[10]T25
[11]T5
27 The plaintiff thought WorkCover became involved after he first spoke to his lawyer.[12]
[12]T7
28 The plaintiff thought “at the end” more physiotherapy was being recommended, but he was not sure what happened.[13] He was never discharged from physiotherapy by Kane. If payment for treatment had been ongoing, he would have “happily gone basically.”[14]
[13]T8
[14]T26
29 The plaintiff had been advised by a general practitioner that he may require lower back surgery and was referred to an orthopaedic surgeon, but never ended up seeing him. Instead, he had just been trying to manage his symptoms with gentle stretching exercises and trying to avoid activities which caused flare ups. After physiotherapy stopped in 2013, he has only done exercises at home.[15]
[15]T5
Post-incident work
30 After the incident, the employer put the plaintiff on lighter duties. He was required to continue performing services on coffee machines but avoided heavy lifting.
31 The employer was not really happy with him not being able to do certain tasks. Near the end, he was interrogated in the boardroom by the owner and manager as to how long he was going to go to physiotherapy. The plaintiff then made some recommendations because he was going to struggle to do machine installations and they basically said they “did not like the look of it”.[16]
[16]T12
32 He probably never returned exactly to the same as full-time duties. His doctor told him it was not good to be lifting multiples every day, but he would do an occasional lift. He probably went back close to what were normal full-time duties but he “was not going to be lifting twenty heavy machines a day sort of thing”.[17]
[17]T13
33 The plaintiff ceased working with the employer in about late 2013 and sometime after that, commenced work for Norfolk Food Services as a service technician. This is generally much lighter work than he did with the employer. There is not much installation work and he has lifting equipment. Mostly his work involves servicing kitchen appliances onsite, which does not involve heavy lifting.
34 As at the end of 2019, the plaintiff was working full time, but was usually tired and sore at the end of the day and had to sit down and rest when he arrived home. He persevered because he had a family to support, they had a mortgage and were expecting a baby.
35 Now at work, he does the standard work week and occasionally a couple of hours of overtime. He is happy to be working as he feels better when he keeps moving.
36 The job is quite manageable, and he has adjusted the methods and postures to take care of his lower back injury. Very rarely is there any manual handling that is of anything remotely heavy and he has support and good lifting equipment.
37 Most of the work involves servicing commercial dishwashers which are fairly easy to access. Most of them are on wheels and most of the time he can do his job by reaching out without needing to move anything else. If he has to do any task on the ground, he lies on his side, as it helps him work stretched out sideways.
38 At one stage, he thought about getting into sales, but when he thought about it, there is a lot of sitting. His current job does not involve any prolonged sitting and it is relatively easily paced, and that is why he did not go into sales
39 The plaintiff agreed he had increased his income significantly in his new job and that he works in that role without any medical restrictions.[18]
[18]T21
Pain
40 In his December 2019 affidavit, the plaintiff described ongoing lower back pain which tended to be more left sided. It was almost constant and he often felt a heaviness and throbbing sensation in his lower back. That pain often extended down into both legs, more to the left. He felt a sensation of numbness on the top of his left upper leg almost all the time. He was still able to bend at the waist, but generally could not reach down as far as he could before injury and usually had pain when he did. Repetitive bending at the waist caused a flare up of lower back symptoms.
41 Since the incident, he had had a feeling of heaviness on his leg with prolonged standing and he tired more easily. He usually felt exhausted by the end of the day and had to sit down on the couch and put his feet up.
42 The plaintiff did not tend to run since he was injured at work. When he had broken into a little jog his back pain increased. Sitting was difficult and after a short period of time, his lower back started to feel stiff, uncomfortable and sore, and he had to get up and move around to relieve his symptoms. Prolonged sitting also caused symptoms in his legs, like burning pins and needles, and he was more comfortable with his feet up.
43 Before the injury, he considered himself very strong and he could lift heavy items, but since then he tended to avoid moving furniture and other items because it put too much strain on his lower back and he needed help doing so.
44 Since the injury, the plaintiff had felt emotionally down a lot of the time, and his mind kept going back to what happened on the said date, and how it did not have to happen. He often felt frustrated by his injuries and pain, particularly when he could not do something he used to enjoy. He used to be fit and active and was able to do many things. His life changed so much he felt like a shell of a man. He worried a lot about the future and whether his injuries would get worse as he aged.
45 In his further affidavit sworn on 17 February 2021, the plaintiff confirmed he continued to experience the symptoms earlier deposed to.
46 His back pain is now different to when it first happened. Then, it was like someone sticking a hot skewer into him. Now, while sciatica is still present, it affects him far less frequently than it did. He gets a spasm around the belt area about once a month for at least three to four minutes. His left leg still has sciatica at times and is an intermittent problem, perhaps once every two months. It also depends on what he does and he is very careful not to aggravate it. He has a grinding ache in his back which is a constant problem for him.
47 The plaintiff is very cautious of his back. The change that it has caused is real and he is very worried about making it worse. There is no easy cure and he has to manage it.
48 While the pain is bearable, it can at times take his focus away from a serious conversation, for example. Otherwise, he manages and puts up with it.
49 There are many things the plaintiff could mention. Sitting on a couch is something that is not good for his back. He gets home after a shift and just lies on the couch. Sometimes, especially if he sits on it, he has problems. When he gets off the couch after sitting he can get a lightning-bolt type pain. His technique is to slide and roll off, then he gets up via his knees. It is a bit embarrassing if family and friends are around, but frankly it is the best way he can get up.
50 Due to lower back symptoms, the plaintiff tended to struggle to sleep, and found sleeping on his stomach the most comfortable, but even then, his back became sore and uncomfortable during the night and tended to wake him up. He was almost always tired during the day from lack of sleep.[19]
[19]December 2019 affidavit
51 Presently, if the plaintiff has done anything at work which is a bit awkward regarding his back, his sleep can be further affected, and he struggles to get up the next day. About once a week, he ends up sleeping on the couch because it is more comfortable to sleep on his side or stomach, but this is not always easy.
Domestic activities
52 As of December 2019 when the plaintiff and his partner were expecting a baby boy shortly, he was worried about his ability to look after his baby and lift and carry him.
53 Since then, he and his partner have two young children: one is aged thirteen months and the other four weeks. That has been very difficult with his lower back. He finds it difficult to bathe the baby and change his nappy. He helps out as much as he can to lift and carry the children, but he worries about what he will do when they weigh 20 kilograms. There have been times when he has felt his back pinch like a jolt and all he could do was hold onto his son.
54 They actually delayed trying for children, waiting for his back to settle, but in the end it was taking too long, so they started trying about two years ago. Intimate activity is affected by pain regularly and he is quite limited. The plaintiff considered himself to be a handyman before the incident, often doing things like painting rooms in the house, and years ago built decking on the house. Since the incident, he had done fewer tasks of this nature because a lot of those activities tended to cause an increase in lower back symptoms.
55 He is able to mow the lawn, but it causes an increase in his symptoms. He has to take little breaks, but he pushes himself to do many other physical activities.
56 They have quite a garden at their place. He still has to do it, but it is a bit of a killer for him. His partner bought a Honda lawnmower which actively runs by itself and makes it easier. He avoids bending down and emptying the grass and just lets it go into the centre strip so he can avoid bending. Weeding is a pain. He uses a bit of weedkiller, but at times, he has to pull the weeds. What he tends to do is just sit, then keep a straight back and pull them out. Gardening is probably the thing at home that aggravates his back the most.
57 Pre-incident, the plaintiff did housework, but post-accident, nowhere near as regularly as before. When he arrived home from work he usually just had to rest and his partner cooked dinner. Sometimes he might do the dishes, but even that tired him and made him feel guilty.[20]
[20]December 2019 affidavit
58 From time to time he does limited chores around the house. He does gardening. He mows the lawn. He very rarely does handyman jobs now. He used to do a lot, but not as much as now.[21]
[21]T9
59 In terms of personal care, he has problems doing his socks and shoes and has to sit down to do them because it is just awkward.[22]
[22]T9
60 The plaintiff and his partner own a Pug and a Staffordshire terrier. Pre incident, they regularly took the dogs for walks, often more than once a day, but since the injury, he tended to do so less often, as when the dog pulled on the lead it increased the plaintiff’s back pain. He still walks the dogs.[23]
[23]T10
Sport and exercise
61 Before injury, the plaintiff enjoyed exercising regularly. Three to four times a week he worked out with friends who had weights and exercise machines in their garage. Post injury, he had avoided weightlifting as he felt it put too much strain on his back. Therefore, he had put on weight and felt out of shape.
62 Pre injury, he also enjoyed social soccer with his friends, sometimes as often as weekly, but had stopped because of his injury, as the running and fast movement put too much strain on his lower back and he was worried, if his symptoms flared up, they would stop him from working and he could not afford to have time off.
63 The plaintiff had previously enjoyed fishing, often pier fishing two or three times a week after work and regularly on the weekends with his partner. Since the injury, he had only been fishing a couple of times. Carrying equipment put a strain on his back and reeling in larger fish caused his symptoms to increase. Surf fishing was difficult. As at December 2019, he was trying to increase the amount of fishing he was doing, but could not do nearly anywhere as much as he used to, and had to be careful when he was doing so.
64 Before his injury, he loved surf fishing and was good at it, going down the Surf Coast for a few hours at a time. He tried surf fishing after his injury but his legs invariably felt heavy by the end of it and the pain he had after the drive home did not make it worthwhile. He still goes fishing now.[24]
[24]T10
65 The plaintiff previously enjoyed tennis and he played with his partner or friends once every few weeks. In late 2018, he tried, but only lasted about half an hour, finding serving particularly difficult for his back.
66 The plaintiff could now probably have a brief hit at tennis but serving would be a real problem for him. He has lost contact with his friends with whom he played weekly tennis.
67 The plaintiff can still shoot hoops in a ring at home relatively easily and just relies on his upper body. His problem is with jumping.[25]
[25]T100
68 Pre injury, he kicked a football around with his nephew about once a month, but since then, had only tried to kick on a couple of occasions because that motion tended to hurt his lower back.
69 Pre injury, the plaintiff enjoyed breeding snakes and lizards, which he kept in glass cases. They required constant cleaning and replacing the sand each day, which comes in 5-kilogram bags. In the end, with all the hassle of his back it was not enjoyable. He was hopeful of going back to that activity in the future. He went from possibly having close to a hundred reptiles to now having three in captivity, “just pets.”[26]
[26]T10
70 Pre incident, the plaintiff went for long walks around the Apollo Bay area as often as every second weekend. Now, he and his partner make shorter trips as far as Fairhaven. He used to be very fit, but now can probably walk between thirty minutes to an hour before his back becomes annoyingly painful, and after that, it is unbearable. While he is not immobile, the longer it goes on the worse it gets. It is not enjoyable.
71 While he had travelled beyond Fairhaven, most of the time, he and is partner are either going to Geelong of Fairhaven, because they have to have stops and he just gets more pain sitting down. When he goes for walks, he drives somewhere then walks around. Usually they stay the night and then have a look around, and then maybe come back on Sunday.[27]
[27]T15
72 The plaintiff was taken to a number of entries on his partner’s Facebook page where she listed various places they had gone: Portland on 27 February 2018, Mallacoota on 5 April 2018, Apollo Bay on 17 December 2018 and also 3 February 2019 and 26 April 2020. He agreed these were long trips.[28]
[28]T16
73 He could not remember where a photograph of him and his dog in a kayak on the water was taken, posted by his partner on 8 December 2017. Another post was a picture of him walking along the beach at Portland carrying a tennis racket, with his two dogs further up the beach.[29]
[29]T17
74 He did not agree that those sort of photographs suggested he and his partner were leading a reasonably outdoor life. A lot of these trips would have been “just build ups”, like they would have been around his partner’s birthday. They did go to Apollo Bay because he wanted to propose to her there, but he would not say it is a “massive active lifestyle”. Another time they went to Eden, but it was a caravan holiday, so they actually drove two hours out and parked. He “can push [himself] as far as it is, it is just the pain exaggerates the longer it takes basically”.[30]
[30]T18
75 The plaintiff also agreed he had taken other trips and gone up the Murray. He had gone to Goulbourn in October 2014.[31]
[31]T18
76 When it was again suggested he was fairly active with outdoor walking activities and holidays he said “Look most of the time, if we do drive somewhere that is outside the sort of 150, 200 kilometre range, normally that night, yeah, I’d probably just kick back on the couch and then just plan on the next couple of days to take it easy basically”.[32]
[32]T18
77 He explained that his recent affidavit was accurate as to the situation when it was sworn. Fairhaven was where they would normally go. Before then, they would have gone to Portland and there were probably times he realised that is probably not the best, but he has just got to deal with it to get there, because:
“Abi’s got to live a life as well … I’d probably rather just stay home, to be honest, but you know, I’ve got a partner and I’ve got a family as well, and I can’t just sort of shut out the whole word just … from an injury, you know, I have to try and push it as far as I can. But if you’re saying there’s no – you know, a normal life and stuff like that, that’s definitely not correct … .”[33]
[33]T19
78 Each one of the trips to Eden, Apollo Bay, and a few times the Murray, is a struggle for him, but at the end of the day he just cannot not live a life, he still has to go and see and do things.[34]
[34]T20
79 Pre injury, he and his partner used to go to North Queensland or northern Australia. Maybe six or seven years ago they tried the Gold Coast. He did not cope very well; it was not enjoyable at all; “it was just all aches and pains. It is not enjoyable when the aches just do not go away.”[35]
[35]T23
80 Post incident, he has put on weight. He thought he was probably 90 kilograms or more at the time of the incident. While he put on some weight during lockdown, his weight would now be about 114 kilograms due to his inability to exercise.
| Summary of the Plaintiff’s Taxation Returns | |
| Year | Gross Income |
| 30 June 2011 | $49,827 |
| 30 June 2012 | $53,791 |
| 30 June 2013 | $52,543 |
| 30 June 2014 | $76,443 |
| 30 June 2015 | $65,608 |
| 30 June 2016 | $75,280 |
| 30 June 2017 | $85,906 |
| 30 June 2018 | $91,576 |
| 30 June 2019 | $108,125 |
| 30 June 2020 | $95,385 |
| Until February 2021 | $54,774.55 |
Lay evidence
81 The plaintiff’s fiancée, Abilene Evans, thirty-seven, swore an affidavit on 24 February 2021. She is on maternity leave at home, looking after their newborn baby and one-year old.
82 She has known the plaintiff since they were seventeen and been romantically involved with him since nineteen. They were engaged four years ago.
83 Ms Evans confirmed the plaintiff was an active man before the incident, both domestically and socially. She also confirmed the various consequences that he deposed to as to the effects his lumbar injury had on him and their relationship.
The Plaintiff’s medical evidence – Treaters
84 The plaintiff had physiotherapy at Back in Motion in 2013 from Emma Newton. She wrote to the plaintiff’s general practitioner on 15 February 2013, thanking him for the referral.
85 Ms Newton also wrote a “To whom it may concern” letter on 14 March 2013, where she advised that the plaintiff was currently able to sit for ten minutes at a time and required a five-minute break, and could do no lifting above 3 kilograms. At that stage, the plaintiff was having physiotherapy twice a week to undertake an exercise-based rehabilitation program.
86 Dr Cooray referred the plaintiff to Mr Turner, orthopaedic surgeon, on 1 May 2013.
87 The presenting problem was noted as:
“Has Severe back pain for the last 2/12 .Clinically L/ sciatic pain and is work related as to the discription given by Michael. He is a service technitian in a company where lots of heavy machinery lifting transfering involve daily basis.”
(sic)
88 The CT scan was attached.
Investigations
89 Dr Cooray organised a CT scan of the plaintiff’s lumbar spine on 7 February 2013.
90 It was reported there was mild retrolisthesis from a reduced disc height as L5‑S1 with posterocentral/left paracentral disc protrusion resulting in mild narrowing of the left lateral recess with possible mild impingement on the traversing left S1 nerve root. No significant degenerative changes were seen elsewhere in the lumbar spine.
91 On 4 March 2013, there was an upper abdominal ultrasound where no significant abnormality was seen.
Medico-legal evidence
92 The plaintiff was seen by Professor Bittar, neurosurgeon, in late 2020.
93 The plaintiff then reported constant lower back pain which was characterised as dull grinding pain located in the mid and lower lumbar region, more severe on the left. It had an average severity of 3, with a maximum severity of 7 out of 10 and was exacerbated by prolonged postures and heavy lifting.
94 The plaintiff also complained of intermittent pain radiating to the lateral aspect of his left upper thigh, with associated numbness. He had less severe occasional pain in the same distribution in the right leg. He was not having any treatment as previous treatments had not offered him a significant benefit and he needed to avoid strong medications due to concerns that would impact on his ability to drive.
95 Professor Bittar noted the plaintiff socialised less and his recreational activities were moderately impacted, and he no longer played tennis or football. His sleep was severely impacted and domestic activities were slightly impacted, with the exception of gardening, which was moderately impacted. Overall, his quality of life was diminished.
96 Professor Bittar reviewed the CT scan, which demonstrated the left paracentral disc protrusion at L5-S1, with mild narrowing of the lateral recess.
97 He noted the plaintiff’s initial treatment included analgesics and cupping, which offered him some benefit. He had physiotherapy for around eight months between February and October 2013, but ceased this due to pain. Further treatment comprised gentle stretching exercises.
98 On examination, the plaintiff had mild restriction of lumbar flexion and extension. He had left-sided lumbar paravertebral tenderness without muscle spasm. Straight leg raising was normal and there was no neurological abnormality.
99 Professor Bittar diagnosed L5-S1 intravertebral disc prolapse and aggravation of lumbar spondylosis, to which work had been a significant contributing factor. He suggested further investigation and assessment by a spinal surgeon thereafter.
100 He thought the plaintiff did not have the capacity to return to full pre-injury duties, however he remained motivated to continue to work in a relatively heavy physical role, which he described as being of a similar nature to pre-injury work, however he had access to equipment to allow him to move the dishwashers that he serviced to avoid as much lifting.
101 Professor Bittar thought the prognosis was guarded, noting the plaintiff had a very longstanding and serious lumbar injury and would most likely continue to experience significant pain and associated disability into the foreseeable future.
102 He thought the plaintiff was able to undertake most physical movements, as long as he limited himself to avoid undertaking them too frequently, and was cautious about his posture. He did not have a capacity to perform his full pre-injury duties, but did have the capacity to perform suitable employment.
103 Professor Bittar thought the plaintiff was experiencing a moderate degree of pain and suffering, with some associated distress and anxiety as a result of the spinal injury. He noted the plaintiff is not likely to remain restricted in relation to social, domestic and recreational activity. He did not think the plaintiff was at increased risk of developing osteoarthritis.
104 The plaintiff was examined by psychiatrist, Dr Nicholas Ingram, in December 2020.
105 The plaintiff told him of continuing constant pain in the lower back, worse with some activity. There had also been some severe shooting pain in both legs about once a month that had come on for no reason. He had not seen an orthopaedic surgeon because he was worried he would be recommended surgery and he did not want to have an operation.
106 The plaintiff told Dr Ingram that he kept working, but it had been difficult because of pain, although he had been put on light duties. The employer was reluctant to allow him to make a WorkCover claim and they continually resented the fact he needed physiotherapy and were reluctant to pay for it. The employer had also been critical of him and made belittling comments, such that he was weak or that he was not trying hard enough, and overall he felt they had treated him very, very poorly.
107 Dr Ingram noted a report from Dr Roy Carey, orthopaedic surgeon, on 3 April 2019.
108 Dr Ingram reported that the plaintiff had been generally able to manage his work without pain interfering too much and it had not been getting worse.
109 The plaintiff described a significant impact on his sexual relationship. He did not want to see his friends as regularly as he did not want them to see him as being weak.
110 On mental state examination, the plaintiff’s affect was depressed, and at times he was tearful when talking about his difficulty in engaging in things, especially with his son. Psychologically, he had become depressed as a result of his pain limitations, especially his fears for not being able to engage with his son.
111 Dr Ingram felt the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed Mood, which was a secondary consequence of his chronic pain, and subsequent limitations.
The Defendant’s evidence
Claim Documents
112 By letter dated 20 May 2014, the plaintiff was advised that CGU had decided that from 25 June 2014, he was no longer entitled to medical and like expenses because his treating physiotherapist, Mr Grbac, provided a letter, dated 15 May 2014, indicating he had been discharged from treatment.
113 It was noted in that correspondence that the claim dated 22 November 2013 had been accepted in relation to an injury of 6 February 2013.
Medico-legal evidence
114 Dr Graeme Doig, orthopaedic surgeon, examined the plaintiff in January 2021.
115 The plaintiff told him of the 2011 lifting pain, the incident, and his attempts to continue working thereafter, but resigning in August 2013 due to a bad atmosphere in the workplace.
116 The plaintiff was then working full time as a service technician with a food services company, which he advised was less physically demanding and that he only serviced ovens and dishwashers, which were moved on a trolley.
117 On examination, the plaintiff complained of low grade pain on the left side which deteriorates with use. Previous sciatica-type pain had resolved. He also had occasional neck pain on the right.
118 The plaintiff tried not to use analgesics. He did his own exercises. He avoided long drives and had to stop running and he was careful with heavy lifting.
119 On examination, the lower back was non-tender and the plaintiff could forward flex slowly to his low shins. He displayed 20 degrees of lateral flexion and 15 degrees of spinal extension and obtained a good retention of thoracic rotation. Straight leg raising was full and there was no evidence of radiculopathy. He did complain of reduced sensation in his anterior thighs, the cause of which remained unclear.
120 The plaintiff informed Dr Doig he required minimal time off work, primarily to attend appointments. He upgraded to pre-injury status with the employer and resigned in August 2013, and was then working the full-time alternative position.
121 Dr Doig diagnosed an intravertebral disc injury at L5-S1 level of the lumbosacral spine, with no evidence of clinical radiculopathy.
122 Dr Doig noted the plaintiff’s lower back condition did improve over the course of a couple of months but failed to fully resolve. Unless there was evidence to the contrary, it was materially contributed to by his employment.
123 Dr Doig thought the overall prognosis was reasonably good and that the plaintiff was self-managing his back condition as much as possible and continued to work in a reasonably physically demanding job. He was also able to carry out activities of daily living, including domestic chores.
Clinical notes
124 The Parkwood notes were provided after the hearing.
125 When the plaintiff saw Dr Cooray on 7 February 2013, the reason for contact was back pain, and a lumbar CT was requested. It was noted that there was ongoing pain in the lumbar spine which was getting worse “been lifting heavy”. Panadeine Forte was prescribed and a certificate given.
126 On 1 May 2013, the plaintiff attended for back pain and was prescribed Tramadol.
127 The next attendance was for an unrelated problem on 3 June 2013. On 2 August 2013, it was noted:
“Getting better. Attending physiotherapy. Happy to go back to 10 kilogram maximum weight lift. Getting better physio. Recommend for increase work load as above.”
(sic)
128 As at 26 November 2013, the plaintiff’s file had been forwarded to Slater and Gordon.
129 There were attendances for unrelated matters on 11 March and 6 August 2014.
130 On 8 September 2014, it was noted:
“Still has back pain on and off. Been to physiotherapy. No significant improvement. Pain more at night after work. Taking Nurofen. Poor response. Is having b/l knee pain burning sensation with aches and tingle more in l/s. Going on for few months.”
131 An MRI scan of the lumbar spine was requested and Panadeine Forte added.
132 There were attendances for non-related matters in October and November 2014.
133 On 17 March 2015, it was noted “Numbness and pins and needles feeling increasing in right leg. Getting worse for about a few months now”. The reason for contact was pharyngitis. An MRI scan of the lumbar spine was requested.
134 The plaintiff attended for a cough on 28 May 2015.
135 On the next attendance on 18 January 2016, it was noted there was a history of chronic back pain:
“On and off flareups. Injured at workplace 2.5 years ago. Back pain with numbness over left leg. Constant ache.”
136 It was noted that the plaintiff wanted an MRI scan for further evaluation. Referred to a neurosurgeon for further evaluation.
137 On 24 May 2016, the reason for contact was respiratory tract infection. The plaintiff attended on 14 June 2016 for viral gastro. He attended for a cough a number of times later that year.
138 On 9 February 2018, it was noted that the plaintiff had a trauma to the right hand in December and imaging was requested. Subsequent attendances that year related to the right middle finger, a cough and gastroenteritis.
139 Over 2018-2019, most notes related to complaints of a sore throat or cough.
140 Celebrex was added in October 2020, after left knee pain. Telehealth consultations to January 2021 related to the knee problem.
141 The Back in Motion notes commence on 13 February 2013 and cease on 8 October 2013.
142 While there is a single sentence email in May 2014 to CGU from Mr Grbac “I can confirm Michael has been discharged from treatment”, there is no further detail about the plaintiff’s condition as at discharge save for the note of the last visit on 28 October 2013 which simply read “Going well. Had day off work. Didn’t really do much.”
Overview
143 There is no issue the plaintiff suffered an injury to his lower back in the incident. His claim was accepted and payments were made.[36] His lumbar condition has been diagnosed as a disc injury at the L5-S1 level.
[36]T28
144 The real issue is whether or not the consequences as at the date of hearing reach the threshold of “serious”, with counsel for the defendant submitting “they do not get anywhere near that required threshold”.[37]
[37]T28
145 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[38]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[38](Supra) at paragraph [12]
146 While credit was not a major issue in this application, in general terms it was submitted on the defendant’s behalf that the affidavits paint a picture that may be overstating things,[39] whereas counsel for the plaintiff submitted the plaintiff was a straightforward witness, happy to give the concession that his sciatica has settled.[40] Further, the plaintiff was described as stoic, with mention of his readiness to finish his job on the said date, despite being in pain after the incident.[41]
[39]T35
[40]T32
[41]T37
147 It was submitted there are no credit issues relating to the plaintiff’s evidence about his trips and walking. His recent affidavit used the word “now” when focussing on Fairhaven as the plaintiff’s main destination – but not exclusively. It was submitted the plaintiff is a family person and has family interests, and there has got to be “a bit of realism” in dealing with him.[42]
[42]T34
148 In my view, the plaintiff was a generally truthful, credible witness; however, there was a tendency on his part in his affidavits and also in his histories, particularly to Dr Ingram, to overstate the severity of his back condition and its consequences, - describing himself as “devastated” and a “shell of a man” given his ability to work full time in a well-paid job and continue to engage in a range of activities, including starting a young family.
Pain
149 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[43]
[43](ibid) at paragraph [11]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
150 While in late 2019, the plaintiff described almost constant significant pain, he has more recently described his pain in less serious terms as a grinding ache with intermittent leg pain.[44] Dr Doig was given a similar description of low grade back pain on the left side when he saw the plaintiff early this year.
[44]Second affidavit and history to Professor Bittar
151 Although the plaintiff still gets spasm in his lower back, this now perhaps occurs once a month. In his recent affidavit, he made no mention of the leg numbness referred to in his December 2019 affidavit although he told Professor Bittar this was intermittent when examined in late 2020.
152 While the plaintiff suffers from this low grade back pain/grinding ache and very occasional spasm and intermittent numbness, he does not suffer a continuous substantial level of pain. Confirmatory of this is that he does not require regular painkilling medication.[45]
[45]Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181 at paragraph [48]
Treatment
153 The plaintiff has undergone limited treatment for his back complaint.
154 After 2013 and 2014 visits, the plaintiff has only mentioned his back on the odd visit to Parkwood although he has attended regularly for other complaints.
155 In February 2013, he was referred to orthopaedic surgeon, Mr Turner, but did not attend the appointment. Another MRI scan was planned by Dr Cooray in September 2014 [46]but the plaintiff did not go ahead with it. I do not accept this lack of engagement in further treatment can be simply explained by a fear of surgery as he described to Dr Ingram. The plaintiff did not even see Mr Turner to find out whether or not he recommended surgery.
[46]and also in 2015
156 Painkilling medication was only prescribed on two occasions soon after injury. While the plaintiff says he does not like taking medication for his back, in recent times he has been prepared to take Celebrex prescribed for left knee pain.
157 The plaintiff had physiotherapy for eight months until October 2013. Treatment ceased when he was faced with an $800 bill. While I accept he was not discharged from treatment because the physiotherapist thought he did not require further treatment, when the claim was accepted in December 2013, this bill was paid by WorkCover. There was no explanation why the plaintiff did not resume treatment thereafter or ask for a further referral when his claim was accepted if he required ongoing treatment. He told Professor Bittar he stopped physio because of pain but has told others, he stopped treatment as he could not afford it.
158 The only reports from treating physiotherapists were in the very early stages of treatment with no report as to the plaintiff’s progress from March to October 2013 or any comment on the need for further treatment as at the end of that period.
159 In my view, the plaintiff has not pursued the various treatments options offered to him because his back pain was not of the magnitude he now describes.
160 In those circumstances, I do not accept Professor Bittar’s rather pessimistic view of the plaintiff’s prognosis and the possibility of future surgery – a view he alone holds in circumstances where there has been no suggestion of involvement in a pain management program or other treatment for chronic pain.
161 Further, there were no significant findings on Professor Bittar’s examination with some tenderness and minor restriction pf movement. Dr Doig’s examination was also basically normal, accepting the plaintiff can self manage his condition, concluding the overall prognosis was reasonably good.[47]
[47]T30
Work
162 The plaintiff has worked in his current role, which has been described as a reasonably physically demanding job and a relatively heavy role by the medico legal examiners, for nearly eight years without any need for time off work or restrictions placed on his duties.
163 As he agreed, his earnings while in his current employ are significantly greater than he was receiving while working for the employer.
Activities
164 Counsel for the defendant submitted the plaintiff’s activities may be altered to some extent, but not even significantly, not very considerably.[48] Any such restrictions do not reach the threshold of “more than very considerable” or “marked”. Overall there is a lack contemporaneous evidence that would support the fact the plaintiff’s current consequences are “very considerable”.[49]
[48]T28
[49]T30
165 Further, in terms of recreational activities, the plaintiff now has a young family which would certainly curtail his ability to go out regularly and engage in sporting activities in any event.
166 Reliance was placed on Professor Bittar’s description of a moderate degree of pain and suffering.[50]
[50]T30
167 However, the question of seriousness is one for the Court, not medical examiners.[51]
[51]T31
168 Counsel for the plaintiff submitted the interference with sporting activities was a serious consequence for the plaintiff. As a result of his back injury, he had been unable to return to his main sports of social tennis and doing weights with mates three or four times a week. He also played social soccer pre injury, at times weekly – “He is still a relatively young man, these are his sports and they are important to him, and that is the key test.”[52]
[52]T32
169 A further consequence was the significant reduction in his involvement in his reptile hobby post incident, having clearly been a big enthusiast before his injury, and “now 97 per cent of them gone”.[53]
[53]T33
170 The defendant had had a long time to look at the plaintiff and had not found anything to contradict his evidence of his restrictions or that he had stopped doing various activities because of his back pain.[54]
[54]T38 - surveillance referred to in the index to the DCB
171 It was submitted that was significant because the plaintiff is still well and truly young enough to be doing these sporting activities, and the fact he is not doing them leads to the inference that is because he has too much pain as opposed to deliberately not doing them.[55]
[55]T38
172 Further, pre injury, the plaintiff was “right into” surf fishing and that is no longer appealing to him. He has also put on quite a lot of weight.[56] His intimate life and sleep has been affected, all key indicia under Haden Engineering.[57] It was submitted “none of them are knock out blows, but they are all significant”.[58]
[56]T34
[57]Supra
[58]T34
173 The plaintiff’s evidence was also corroborated by his partner in her recent affidavit.[59]
[59]T35
174 It was submitted the plaintiff has adjusted his life accordingly and he has cut his activities right down. He cannot completely cut them out because he has a partner and a life, and he has to work.[60] Most of the things he loves are “sort of almost out”.[61]
[60]T39
[61]T40
175 Taking into account all the evidence, while the various consequences described by the plaintiff are significant or marked, in my view, they are not more than so or at least very considerable as the statutory test requires.
176 As mentioned above, while pain is present, it is not continuous or significant. Treatment has been minimal and there is no requirement for ongoing medication. In my view, further treatment is unlikely.
177 Although the plaintiff complains of issues with sleep, there is no suggestion of the requirement for any medication to help him sleep.
178 Any interference with work is not significant, with the plaintiff continuing to work on a full-time basis with no restrictions, requiring no time off for back pain, earning considerably more than when working for the employer.
179 It is difficult to accept that with this work capacity, the plaintiff would be significantly affected in his ability to engage in domestic tasks, although I accept he may have some limitations in doing heavier housework, gardening and domestic duties such as caring for his young children.
180 While he engaged in a number of sports pre injury, these were on a social, not serious competitive basis, and his involvement in them now would be somewhat limited in any event by the demands of his very young family. There is very little detail about his reptile hobby and no mention made by his partner of it in her affidavit.
181 The significance of what has been lost may be informed to an extent by what is retained.[62] In addition to full-time work, the plaintiff continues to go fishing and also walk his dogs. He is still able to go on trips with his partner to the beach and regional Victoria – it is just a matter of breaking up the driving and taking it easy when they get there.
[62]Stijepic v One Force Group Australia Pty Ltd (supra) at paragraph [44]
182 In my view, the plaintiff’s enjoyment of life has not been affected in a way that can be described as “more than significant or marked” and certainly not “at least very considerable”.
183 As this relatively high statutory threshold has not been met, the application is dismissed.
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