Dean, William Thomas v Crossway Holdings Pty Ltd
[2009] VCC 1170
•25 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-01145
| WILLIAM THOMAS DEAN | Plaintiff |
| v | |
| CROSSWAY HOLDINGS PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 31 August, 1, 2, 4 and 14 September 2009 |
| DATE OF JUDGMENT: | 25 September 2009 |
| CASE MAY BE CITED AS: | Dean, William Thomas v Crossway Holdings Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1170 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – s.134AB Accident Compensation Act 1985 – injury to spine – further subsequent injury to lumbar spine – disentangling consequences of one injury from the other – whether consequences of first injury reach “very considerable” level.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Jordan SC with | McGlades Personal Injury Law |
| Mr T J Seccull | ||
| For the Defendant | Mr M R Titshall QC with | Herbert Geer |
| Mr I S Gourlay | ||
| HIS HONOUR: |
Preliminary
1 The plaintiff suffered injury to his middle and upper spine lifting heavy sacks of potatoes on his parents’ farm on 6 August 2001. He sought various treatments in respect of that injury, and continued to work on modified duties, and reduced hours (“the first incident”).
2 On 20 May 2002, the plaintiff was again working upon the family farm when he stepped down from a truck, stumbled and lost balance as his foot landed upon a rock, and fell backwards, landing upon his rump. He immediately felt pain in his lower back (“the second incident”).
3 This application is concerned with the first incident only and it is said that in that first incident the plaintiff suffered injury not only to his middle and upper back, but also to his lower spine. Subsequently, he had surgery to his lower spine in February 2003, and again in November 2004. He brought an application for leave to bring proceedings at common law pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”) in respect of the second incident. The insurer granted leave, and the common law proceeding has been resolved.[1]
[1] See Certificate pursuant to s.134AB(16)(a)(ii) at Defendant’s Court Book (“DCB”) 230, and Form of Release dated 30 March 2009 at DCB 231-2
4 This application, in respect of injury alleged to have been sustained in the first incident, is brought pursuant to s.134AB(16)(b) of the Act for injury suffered in the course of the plaintiff’s employment with the defendant on 6 August 2001.
5 Mr Jordan, on behalf of the plaintiff, identified the body function said to be lost or impaired as the spine. He included in this the lumbar, thoracic and cervical spines. The application is thus brought under sub-s.(a) of the definition of serious injury contained in s.134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
6 In order to succeed the plaintiff must prove, the onus being on him, that the consequences emanating from the loss or impairment of the body function of the spine are at least “very considerable” and more than “significant” or “marked”.
7 I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function of the spine.
8 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, he must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f), that, as a result of injury, he has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between his without injury earnings in the three year period before and after injury, as best reflects his earning capacity, with his earning capacity at the present time from suitable employment.
9 The plaintiff, and his treating orthopaedic surgeon, Mr Schofield, were called to give evidence and be cross-examined. In addition, affidavits of the plaintiff, medical reports, radiological reports, various claim documents, WorkCover certificates and documents related to the second incident, were tendered into evidence. I have read all the tendered material.
10 On behalf of the defendant, Mr Titshall outlined the position of his client in response to the application as follows:
•
There was no issue the plaintiff had suffered a severe injury to his lower spine in the second incident. It was that incident which led to serious lumbar surgery.
•
In the first incident, the subject of this application, the plaintiff suffered an injury to his mid and upper spine only.
•
All of the claims, documents, medical reports and other material relating to the first incident confirmed the injury was to the middle and upper back.
•
At the present time the consequences in respect of the mid and upper back injury did not achieve the “very considerable” level.
Relevant Background
11 The plaintiff if now thirty-five years of age, is married, and lives with his wife and five children on a family farm at Waubra, near Ballarat. He left school at fifteen to work on the family farm.
12 That farm, effectively owned and operated by the plaintiff’s parents under the corporate name of the defendant, is a general farm including cattle, sheep and crops. From the time he left school until he was forced to retire recently as a result of his spinal condition, the plaintiff worked in a range of tasks and activities upon the farm, including operating machinery, driving heavy vehicles, including trucks and tractors, participating in the potato harvest, heavy work involving cattle and sheep, and regularly lifting substantial weights.
13 He has a history of various injuries suffered over the years. When he was 11 or 12 years of age he fell from the tray of the family truck and suffered some injury to his lumbar spine.[2] From that time on, he would attend the family chiropractor once or twice a year, and occasionally the Ballarat Base Hospital as a result of lower back pain. His duties on the family farm required heavy labour causing his back to ache requiring analgesic medication, usually Panadeine Forte.[3]
[2] Transcript (“T”) 65
[3] T 75
14 In April 1999, he had a fall at the family farm and hurt his hip. He attended Dr Soo[4] and complained of numbness in the right leg. It was thought that the plaintiff may have fractured his pelvis, but an x-ray confirmed this was not the case.
[4] T 76
15 In August 1999, he was trimming the branches of a tree upon the farm with a chainsaw when he fell and hit his head. He suffered neck pain and saw a chiropractor. The neck pain settled.[5]
[5] T 80, PCB 9
16 In January 2001, he jarred his back when he was thrown from an auger, a distance of two feet or so. He went to see his treating general practitioner, Dr Hinchey, had an x-ray to his back, and was prescribed medication.[6] He received pain relieving medication over about a week.[7]
[6] Plaintiff’s Court Book (“PCB”) 14
[7] T 82
17 In July 2001, the plaintiff was treated at the Ballarat Base Hospital for neck/back pain after lifting. He complained of tingling in his right arm and leg. There was reference in the hospital notes to a past history of back injury.[8] There was reference to a fall from a tree two years before the attendance, and a CT scan of the cervical spine which detected no abnormality. On examination, the whole of the neck was said to be tender. The plaintiff considered this episode some sort of viral infection.[9]
[8] DCB 10
[9] T 79
18 Radiological reports indicate an x-ray of the cervical spine was taken on 13 August 1999[10] which showed no evidence of fracture. The disc spaces were said to be normal. A CT scan of the cervical spine was undertaken in November 1999[11] which showed no disc protrusion. An x-ray of the lumbar spine was taken in January 2001[12] which showed a loss of lumbar lordosis, but no bony injury.
[10] DCB 21
[11] DCB 22
[12] DCB 24
19 Despite these various injuries and incidents over the years, the plaintiff gave evidence that he did not miss any significant time away from work. His work included very heavy manual work, particularly relating to harvesting of potatoes, and in the harvest season, he would work beyond the normal 40 hours, sometimes 60 or even 80 hours. In addition, he played football and tennis and was not inhibited in those activities.[13] However, when his back became sore over the years up until the first incident, he would not undertake the heavier duties.[14]
[13] T 118
[14] T 76
The First Incident and its Consequences
20 On 6 August 2001, the plaintiff was working in the potato shed during potato harvest. His job on that day involved dragging sacks of potatoes weighing approximately 50 kilograms and lifting them onto a pile. The task required him not only to lift the sack of potatoes, but to twist as he did so, raising it to approximately shoulder height. In the course of doing this, he experienced a sharp pain in the middle of his back, extending up to between the shoulder blades, and into the neck.[15] The next day he attended the Ballarat Base Hospital[16] complaining of pain between the shoulder blades after lifting a bag of potatoes. The clinical notes of the hospital record:
“Back pain post lifting 50 kilogram bag of potatoes this AM. PHX back
pain, L shoulder pain.”
[15] PCB 9
[16] DCB 13
21 There was further reference in the notes to a past history of lumbar back pain. Rest, Panadol and heat was prescribed. I am satisfied the reference to back pain is in fact pain in the area between the shoulder blades, as that was the area complained of.
22 The plaintiff then attended his local general practitioner, Dr Hinchey, on 13 August 2001.[17] He complained of “mid-dorsal back pain”. He again attended on 27 August 2001, and x-rays of his neck and back were ordered, which revealed no bony injury. These x-rays were to the thoracic and cervical spines.[18] He returned to Dr Hinchey on 3 September 2001 complaining of tenderness over the area D4 to D8. A CT scan of his thoracic spine of 6 September 2001[19] showed mild narrowing of mid-dorsal discs but otherwise no abnormality.[20]
[17] PCB 18
[18] DCB 25
[19] DCB 26
[20] DCB 26
23 Dr Hinchey considered that the plaintiff had suffered a severe muscle tear to his cervical spine which had taken several weeks to heal.[21] He was cleared for normal duties on 11 September 2001, those duties including heavy manual farm labour. Dr Hinchey did not consider he had suffered any long-term sequelae.
[21] PCB 19
24 Over this period, various certificates of work capacity were issued by Dr Moorhouse, who practiced from the same premises as Dr Hinchey. I take it that over this period, the plaintiff consulted both Dr Hinchey and Dr Moorhouse. He was certified as unfit for any duties from 27 August to 3 September[22] 2001 because of “neck and back strain”. This certification continued over the period from 3 September 2001 to 10 September 2001 because of “dorsal back strain”.[23]
[22] DCB 30-31
[23] DCB 32-33
25 Over this period, at or about 11 September 2001, the plaintiff confirmed that he gradually increased his range of activities.[24] On 6 September 2001, he submitted a work claim form.[25] The injury said to be sustained on 6 August 2001 was “dorsal 4-7. Ligament damage”.
[24] T 71-74
[25] DCB 1-3
26 Over this period, he had received physiotherapy treatment from Mr Peter Rice.[26] The report indicates that treatment was to the mid-thoracic spine. The plaintiff said[27] that Mr Rice referred him for a second opinion to another general practitioner, Dr Oliver. He first saw Dr Oliver on 12 September 2001.[28] The report records:
“He was still suffering with lumbar back pain and pain in the upper thoracic muscles in the level of T4, 5 and 6. I treated him with Voltaren, Prednisolone and Endone and followed him up”
(emphasis added).
[26] DCB 91-92
[27] T 71
[28] PCB 20
27 There was considerable debate in the course of submissions as to the meaning of the word “still”. It is uncertain whether that reference refers to the period from 6 August 2001, or some other period. It is a somewhat curious reference given there was never any complaint of lower back pain to Dr Hinchey/Dr Moorhouse. Further, on that day, Dr Oliver issued a Certificate of Work Capacity[29] which referred to “subscapular bursitis and pain in upper back T3-T6” as a result of the first incident.
[29] DCB 34-35
28 Dr Oliver again saw the plaintiff on 4 October 2001 when he noted the condition had improved. He injected the T4-T7 areas with local anaesthetic and provided medication. A certificate of work capacity on that day[30] referred to “thoracic and left shoulder joint strain”. Dr Oliver again saw the plaintiff on 8 October 2001[31] when his back was described as “ok”. At that point, the plaintiff returned to light duties. The previous certificates of capacity referred to certified the plaintiff as unfit for any duties. He returned to see Dr Oliver on 16 October 2001[32] and he arranged a CT scan of his thoracic and lumbar spine. These reports[33] disclose no abnormality in the thoracic spine and a “mild left posterior annulus bulge which just impinges upon the anterior aspect of the left S1 nerve root”. It is reasonable to presume that Dr Oliver referred the plaintiff for a CT scan of his lumbar spine because of complaints of pain in that area.
[30] DCB 36-37
[31] PCB 21
[32] PCB 21
[33] PCB 65
29 Dr Oliver again saw the plaintiff on 24 October 2001 and 12 November 2001.[34] His WorkCover certificate of 16 October 2001[35] refers to “thoracic and lumbar back pain”. The same description applied to WorkCover certificates which provided the plaintiff as being fit for modified duties of 24 October 2001,[36] 12 November 2001,[37] 21 January 2002[38] and 27 February 2002.[39]
[34] PCB 21
[35] DCB 40-41
[36] DCB 42-43
[37] DCB 44-45
[38] DCB 46-47
[39] DCB 48-49
30 When seen by Dr Oliver on 21 January 2002, the plaintiff complained of lumbar back pain and on 27 February 2002 the pain in the lumbar back was said to be severe. Voltaren and Oxycontin were prescribed. When seen on 6 March 2002 the plaintiff said he was “feeling quite well”.
31 The plaintiff returned to Dr Oliver on 5 April 2002 complaining that he had hit his head while getting out of the cab of his tractor, suffering a painful neck. He was given a certificate off work from 5 to 12 April 2002, prescribed Vioxx, Endone and Orudis Gel. From 27 February 2002 until the date of the second incident, there is no reference to lumbar back pain in the various WorkCover certificates. He was certified as unfit for any duties from 5 April 2002 until 26 April 2002, apparently as a result of the incident of striking his head on the tractor.
32 The plaintiff gave evidence[40] that since the first incident he was never able to return to full-time farm duties, nor the full hours that he had previously worked. This evidence stands in some contrast to the fact that his general practitioner had certified him fit for a return to full duties on 11 September 2001, although it is clear from the WorkCover certificates thereafter that there were periods when the plaintiff was certified as fit for modified duties only.
[40] T 57
33 The plaintiff was cross examined at length by Mr Titshall in relation to the pain that he clearly suffered to his low back in September/October 2001 and January/February 2002. The plaintiff agreed[41] that the pain in September and October was the same lumbar back pain that he had suffered on and off for years. He stated[42] that the lower back pain never “went out of the picture” but that he would just tell the doctor how he was feeling on each particular day he saw him.
[41] T 88.3
[42] T 89.1
34 In his affidavit in support of the application, the plaintiff acknowledged that on the day of the first incident he suffered pain to the middle of his back, extending to his shoulder blades and neck.[43] In describing the impact of the injury from the first incident upon his social, recreational and domestic tasks,[44] he described the pain as “back pain which extends up into and between my shoulder blades”. In his first affidavit, there is no reference to any lumbar back pain, save a reference to “some low back pain” upon seeing Dr Oliver on 12 September 2001. In his further affidavit sworn 21 August 2009[45] he described that initially the pain was to the mid and upper back but that he was also getting lower back pain “soon after the incident”.
[43] PCB 9
[44] PCB 11
[45] PCB 15
35 Throughout this period, and the various descriptions of pain up until the date of the second incident on 20 May 2002, the plaintiff makes no reference to any referred pain into his lower limbs. It was not until after the second incident, that there was any such referred pain.[46]
[46] PCB 11
36 When questioned by Mr Titshall as to the attribution of the low back pain in September/October 2001, the plaintiff stated that he did not know what had caused the back pain.[47] I take the plaintiff to mean that he was unable to say whether the low back pain he suffered at that time was as a result of the first incident, or some other incident. In fact, the plaintiff accepted that this low back pain of September was the same sort of lumbar back pain that he had suffered on and off for years.[48]
[47] T 85
[48] T 88.3
The Second Incident and its Consequences
37 The second incident has been the subject of an application pursuant to s.134AB of the Act.[49] The application was supported by an affidavit sworn 12 August 2008,[50] and a proposed Statement of Claim in accordance with the Ministerial Directions was also filed.[51] A certificate pursuant to s.134AB(16)(a)(ii) was granted on 25 November 2008.[52] The whole of the common law proceeding was subsequently resolved, and the plaintiff executed a release to that effect on 30 March 2009.[53]
[49] DCB 201-204
[50] DCB 221-225
[51] DCB 226-229
[52] DCB 230
[53] DCB 231-232
38 According to his affidavit in respect of the second incident, the plaintiff stated that on 20 May 2002 he was delivering potatoes to a factory in Ballarat. He got down from the cabin of a prime mover which he was driving, stepped onto the ground and his foot landed upon a rock. He stumbled, lost balance and fell backwards landing on his backside in the sitting position. He stated that he immediately felt pain in his lower back.[54] Over the next several days, the pain became worse and he also commenced to get pain into his left leg. He consulted Dr Oliver on 25 May 2002 and he prescribed medication and referred the plaintiff for physiotherapy.
[54] DCB 222
39 Subsequently, a WorkCover claim form[55] was submitted on 23 February 2004. The injury said to have occurred on the second occasion was “lower back strain”. On the second page of the form, a question reads “Have you had any previous pain/disability in the area of your present injury/condition?” The plaintiff answered “Not lower back”.
[55] DCB 4-6
40 Dr Oliver continued to treat the plaintiff on a regular basis thereafter throughout 2002.[56] He issued a certificate that the plaintiff was unfit for any duties over the period from 25 May 2002 to 8 June 2002.[57] The diagnosis on that date was said to be “tripped on stone getting out of semi-trailer and strained back and chest muscles…20 May 2002”. Significantly, a further certificate of capacity was signed by Dr Oliver on the same date, 25 May 2002[58] which adds the word “lumbar” before the words “back strain”. The certificate further notes:
“This certificate requested by his solicitor Mark Mitchell, Maurice
Blackburn & Co … lumbar back strain on the certificate.”
[56] PCB 22
[57] DCB 55a
[58] DCB 56-57
41 I take this notation to mean that the plaintiff’s solicitor contacted Dr Oliver and requested the certificate referred to a “lumbar” back strain to give emphasis to the fact that the plaintiff had injured his lower back in the second incident. Thereafter, Dr Oliver continued to certify the plaintiff as fit for modified duties, and from time to time as unfit for any duties.[59]
[59] DCB 58-90
42 In October 2002, the plaintiff was referred by Dr Oliver to Mr Patrikios, orthopaedic surgeon. He noted that the plaintiff had been a patient since 1995. He obtained a history that the plaintiff had, about one year before October 2002, lifted a heavy sack of potatoes and suffering injury to his neck and thoracic spine. Then, after a further lifting and falling injury at work, he injured his lumbar spine. It is clear from the reports of Mr Patrikios[60] that he was concerned only to treat the plaintiff’s lumbar spine. He noted the CT scan confirmed a postero-lateral disc herniation at L5-S1. He arranged caudal injections and on review in February 2003 he noted the left S1 sciatica was getting worse. He undertook a left L5-S1 laminectomy and discectomy on 19 May 2003. The plaintiff was reviewed on a number of occasions, and on 8 August 2003 he was noted to have fully recovered clinically and a return to work certificate was issued. On 30 September 2003, as a result of ongoing radicular symptoms, Mr Patrikios referred the plaintiff to Mr Schofield, orthopaedic surgeon.[61]
[60] PCB 32-37
[61] PCB 35
43 Over the period during which the plaintiff was under Mr Patrikios’ care, he obtained approval from the WorkCover insurer for the injections, and the surgery.[62] Approval was granted under the claim number related to the claim for the first incident.[63]
[62] PCB 37A-D
[63] 04010032466/01
44 The plaintiff was seen by Mr Schofield on 13 October 2003. Mr Schofield received a history of the onset of back pain when the plaintiff was 12 after he fell from a truck and although the symptoms persisted, he was able to play sport and undertake a range of activities. There was no history provided of any symptoms in 2001. The plaintiff gave a history of the development of acute back pain after a fall at work in June 2002, and the gradual onset of left sciatica.[64] There was an exacerbation of sciatica in early October 2003. An MRI had been undertaken by Mr Patrikios on 6 October 2003, that is, after the first surgery. This showed a recurrent or residual disc protrusion at L5-S1 lying immediately adjacent to the S1 nerve root, although the nerve root did not appear displaced.
[64] PCB 44
45 On 17 November 2004, Mr Schofield operated to insert an interspinous implant, with a decompression at the L5-S1 nerve roots. Initially, the plaintiff had no leg pain and very minimal back pain, and was able to return to farm work, with restrictions. However, the plaintiff returned complaining of ongoing left sciatica, aggravated by activity, and a further MRI scan[65] demonstrated a recurrence of the prolapse to the left side at the lumbosacral level. The plaintiff was again referred to Mr Schofield in 2007 and 2008.[66] He had been referred by his general practitioner for a further opinion from Mr Brazenor, neurosurgeon, and in 2008 Mr Schofield referred the plaintiff to Mr de la Harpe, orthopaedic surgeon, and also Mr Peter Wilde, orthopaedic surgeon. By January 2009, the plaintiff’s symptoms in his back and into his left leg had not improved. His recreational and domestic activities were considerably reduced, and he was taking medication, including MS Contin, Endep and Valium, as well as physiotherapy and acupuncture.
[65] PCB 68
[66] PCB 48
46 The plaintiff was seen by Mr Brazenor, a neurosurgeon, in April 2007.[67] The history he received was only in respect of the second incident, without reference to the first incident, and Mr Brazenor’s examination and assessment was concerned only with the lumbar spine. He recommended a two-level spinal fusion. He described the injury to the L5-S1 disc as severe.
[67] PCB 52
47 The plaintiff was referred to Mr de la Harpe, orthopaedic surgeon, in September 2007.[68] He received a history of jumping down from a prime mover at work. He gave the plaintiff a number of options, including conservative management, a double level fusion and a form of intra-thecal pump. Mr de la Harpe thought the plaintiff significantly incapacitated for return to any form of employment.
[68] PCB 60
48 Finally, the plaintiff was referred to Mr Peter Wilde, orthopaedic surgeon, in March 2009.[69] He received a history that in May 2002 the plaintiff had picked up a 50 kilogram bag of potatoes, high above his head, to load onto a pallet and had injured his back. Some weeks later he had stepped down from a prime mover, landed on a rock and jarred his back further. The latter incident resulted in severe back pain and left sciatica. Mr de la Harpe noted a CT scan of the cervical spine of 8 October 2008 which showed some minor degenerative changes, but no evidence of focal disc protrusion. An MRI of 4 November 2008 showed a broad disc protrusion at L5-S1, impinging upon the S1 nerve root. He also recommended to the plaintiff that he undergo a lumbosacral fusion. Despite these various recommendations, the plaintiff has not undergone the further surgery as suggested.
[69] PCB 56
49 In March 2004, the plaintiff changed general practitioners to Dr James Choong of Creswick. He obtained a history that the plaintiff had injured his lower back in May 2002 when he fell backwards from a prime mover, landing upon a rock.[70] Dr Choong suggested the plaintiff should completely give up physical work.
[70] DCB 110-111
Medical Opinions
50 Dr Hinchey, in his report to the insurer of 19 September 2001, diagnosed the plaintiff as suffering a moderately severe muscle tear to the dorsal spine.[71]
[71] PCB 19
51 Dr Oliver, in his report of 6 December 2002, stated that the plaintiff’s condition was related directly to the carrying of heavy bags of potatoes at work which affected his lumbar spine as well as his thoracic spine. I note, however, that the second incident received no more than passing comment in his report, contrary to the history provided to the other specialists. Dr Choong[72] diagnosed the plaintiff as suffering a traumatic injury to his lumbar spine on 20 May 2002, but did not have any record or history of injury sustained on 6 August 2001. In a report of April 2009,[73] he diagnosed chronic neck pain as a result of soft tissue injury, but there is no reference in any of his reports as to the cause of such pain.
[72] PCB 25
[73] PCB 31
52 The various reports of Mr Patrikios indicate that he received a history of an injury to the plaintiff’s neck and thoracic spine in the first incident, and to the lumbar spine in the second incident. This would appear confirmed by letter from the plaintiff’s then solicitors to Mr Patrikios of 14 April 2004.[74]
[74] DCB 113
53 Of further note is a letter from those solicitors to Dr Oliver of 5 March 2004 in which they say the plaintiff had instructed them that in the first incident he had suffered pain in his mid and upper back and in the second incident, suffered injury to his lower back.[75]
[75] DCB 102
54 The plaintiff was treated from time to time by Mr Peter Rice, physiotherapist.[76] His treatment appears to be largely for the plaintiff’s lumbar spine.
[76] PCB 38-42
55 The reports of Messrs Brazenor, de la Harpe and Wilde are of limited assistance. They receive either no history of the first incident, or, in the case of Mr Wilde, an incorrect history. There is no doubt, however, from their reports that at the present time the plaintiff suffers a very significant injury to his lumbar spine at the L5-S1 level. His symptoms both in his lower spine and left leg remain despite two substantial operative procedures and the only hope of some relief is a double-level fusion which the plaintiff, to the present time, has been reluctant to undergo.
56 The defendant arranged for the plaintiff to be examined by a variety of consultant specialists. Dr David Kotzman examined the plaintiff in November 2001 and April 2002.[77] He obtained a history that in the first incident the plaintiff was lifting a bag of potatoes and felt sudden pain between the shoulder blades, and through the chest. There was no history of any pain into the lumbar spine. He noted the CT scan to the thoracic spine of 6 September 2001 showed mild disc narrowing. He concluded that the plaintiff had suffered a soft tissue strain to the mid-thoracic spine in the first incident.
[77] DCB 136-145
57 Mr Brian Davie, orthopaedic surgeon, examined the plaintiff in July 2002, December 2002, and December 2003.[78] In the first report, he received a history that the plaintiff had suffered pain between the shoulder blades and into the left arm and neck in the first incident. He noted that the plaintiff then had two weeks’ holiday. The plaintiff described “occasional low back pain”. He found the plaintiff gave an honest account of his problems, and that he had a genuine cervical disc problem, related to work. When seen in December 2002[79] he obtained a history that the plaintiff had got out of a truck in August 2002 and experienced low back pain radiating into the left leg. A CT scan suggested a disc protrusion to the lumbar spine. He saw the plaintiff again after the first episode of surgery, and noted continuing lumbar disc problems.
[78] DCB 147-153
[79] DCB 149
58 The plaintiff was examined by Dr Andrew Miller, occupational health consultant, in February 2004.[80] He obtained a history of the first incident when the plaintiff was lifting a bag of potatoes and suffered discomfort in the mid to upper back region. He obtained a further history of the second incident when the plaintiff stepped out of a prime mover, landing awkwardly and jarring his back. The report appears to be largely concerned with the plaintiff’s lower back problem. He examined the plaintiff further in May 2004[81] and noted a deterioration in the plaintiff’s lower back condition.
[80] DCB 156-159
[81] DCB 160-162
59 The plaintiff was examined by Mr John Bourke, orthopaedic surgeon, in October 2006.[82] The only history he received was that the plaintiff had stepped out of the prime mover on 20 May 2002 and hurt his lower back. He noted no previous history of lower back or leg pain before 20 May 2002.
[82] DCB 163-166
60 Mr Paul Kierce, orthopaedic consultant, saw the plaintiff on behalf of the insurer in January 2008.[83] The date of injury was said to be “20 February 2005 – the worker however, states that the true date of injury should be 20 May 2002.” The only history Mr Kierce received was of injury stepping down from the prime mover on 20 May 2002. The report is concerned only in respect of the plaintiff’s lower back problems. He obtained a further history that the plaintiff had hurt his back at the age of 12 when he had fallen off the back of a truck. Thereafter, he had ongoing low back pain and visited a chiropractor once or twice a year up until the date of injury in 2002.
[83] DCB 167-176
61 Likewise Dr David Ho, occupational health consultant, who saw the plaintiff in December 2007[84] and March 2009[85] obtained a history of only an injury to the lower spine in the second incident. There was no reference to any prior back problems, save that “Mr Dean said he had previous back problems from falls”.
[84] DCB 177-182
[85] DCB 189-200
62 Finally, the plaintiff was examined by Mr Michael Polke, orthopaedic surgeon, in November 2008.[86] He also received only a description of lower back pain following the incident of May 2002. He said the plaintiff suffered a left sided L5-S1 disc prolapse, and that the prospects were not particularly good, given the two failed spinal procedures.
[86] DCB 183-188
63 As pointed out by Mr Jordan in submissions, none of the opinions of the various consultant practitioners retained on behalf of the defendant are of significant assistance. No doctor appears to have a comprehensive history of the first incident, the onset of lower back pain in September or October 2001, nor in fact obtained a history of mid upper and cervical back problems following the first incident. Of note, however, in my view, is the fact that the plaintiff did not give a history to any of these doctors of the onset of any low back pain in the first incident. This confirms, firstly, that the lower back pain as a result of the first incident was not particularly significant, and was more of a transitory nature, and, further, that the plaintiff was unable to ascribe the first incident as the cause of it.
64 The plaintiff relies heavily upon the opinion of Mr Schofield, orthopaedic surgeon, who treated the plaintiff from October 2003, including performing surgery in November 2004, referred the plaintiff for further opinion by a number of specialists. He provided an opinion as to the association between the plaintiff’s lower back problems and the first incident in his report of 28 January 2009.[87]
[87] PCB 47-51
65 Mr Schofield further attended to give evidence and be cross-examined. His opinion is significant, as Mr Jordan claims he is the only doctor who has obtained a comprehensive history of both incidents, details of the onset of lower back pain in September 2001, and is aware of the nature and extent of the plaintiff’s medication, and investigation by CT scanning between the two incidents. In his first report of 4 December 2006, he stated:
“Your letter states that your client sustained injuries on 6 August 2001
(upper back) and 20 May 2002 (lower back).”[88]
[88] PCB 44
66 In his further report of 28 January 2009,[89] he was provided with various reports, including that of Dr Oliver, and the CT scan of 2001. He stated:
“Details of the initial injury of August 2001, including both his neck and
back, were not at the time, relevant to my ongoing treatment.”
[89] PCB 47
67 He obtained a further history that the plaintiff had injured his neck in the first incident, and that he had neck pain on and off, with gradual worsening in recent months, with now referred pain to the left arm. A CT scan of June 2007 reported a mild posterior annular bulge at C6-7 and a further CT scan of October 2007 reported minor degenerative changes at C5-6 without disc herniation. He noted particularly the report of Dr Oliver, and the complaint of lumbar back pain in September 2001, and the prescription of various medications. He noted the CT scan of October 2001 showing an annular bulge touching the S1 nerve root.
68 In cross-examination, I am satisfied Mr Schofield was unable to confirm the age of the bulge referred to in the CT scan.[90] Despite his earlier opinion, in his report of 28 January 2009 he stated that the injury of 6 August 2001 was consistent with the development of a posterior annular rupture without extrusion into the left neural exit canal. He said the mechanism of that injury caused pain into the whole spine, including the neck and dorsal spine, which was the major area of initial presentation, but by October 2001 the lumbar spine was sufficiently painful to require a CT scan.
[90] T 149-150
69 He said the second incident was likely to cause further stress to the lumbar spine, causing a rupture of the posterior annulus and a prolapse affecting the left S1 nerve root, of sufficient severity to require surgery. He said that the neck pain was playing a relatively minor role in his disability, but of recent times the symptoms had increased.
70 A significant aspect of Mr Schofield’s opinion is that he presumed that the plaintiff had suffered pain into his lumbar spine from the date of the first incident.[91] This opinion is given despite the fact that there was clear evidence of no complaint of lumbar back pain when the plaintiff initially presented to the Ballarat Base Hospital and on a number of occasions to Dr Hinchey.
[91] T 159-160
Submissions on Behalf of the Plaintiff
71 Mr Jordan submitted that a considerable amount of payment of weekly compensation made to the plaintiff under the Act was made pursuant to the claim under the first incident. Further, treatment undertaken by Mr Patrikios, including caudal injections and surgery, was also approved under the same claim. The court was entitled to take such payments as an admission of the need for treatment, and time away from work.[92]
[92] See Ansett Australia Ltd and Anor v Taylor [2006] VSCA 171, at paragraph 40
72 However, an affidavit was sworn by Mr Peter Dawson, an employee of the WorkCover insurer.[93] That affidavit traces payments made pursuant to the claim under each of the first and second incidents. It is clear that a claim in respect of the second incident was not made until February 2004. Up until that time, it would appear payments of weekly compensation and medical expenses were paid in respect of the claim under the first incident. For reasons which can be explained only by inappropriate accounting and clerical error, claims for compensation in respect of the second incident were paid under the claim number allotted for the first incident.
[93] Exhibit 2
73 In these circumstances, I am not satisfied payments made constitute any form of admission by the insurer.
74 Mr Jordan acknowledged that the bulk of the histories provided both to treating and consulting practitioners were inaccurate. He submitted that the plaintiff was honest in the course of his evidence, but a poor historian, and, with the exception of Mr Schofield, no doctor obtained a clear and accurate history of the onset of pain in the plaintiff’s lower spine in September 2001. He explained that the plaintiff, when attending doctors, would give a history of the problem which was most affecting him at the time, ignoring, for example, lower back pain, when the predominant problem was middle and upper back symptoms.
75 The true position, he said, was that the pain in the plaintiff’s lower back never went out of the picture.[94]
[94] T 89.1
76 In addition, it was clear there were errors by the plaintiff’s legal practitioners in the description they gave to various of the doctors, particularly Mr Patrikios and Mr Schofield, that the first incident was confined to middle and upper back problems, and the second incident to lower back problems. The plaintiff, he said, never got back to full duties after the first incident, either as to the hours, nor the heavy tasks formerly undertaken. Further, the plaintiff was not prescribed significant pain-relieving medication until after the first incident.
77 Mr Schofield was the only doctor to obtain a complete history, and his opinion ought be accepted for that reason. It was said he was in a unique position to assess what had occurred in the first and second incidents.
78 It was of particular significance, Mr Jordan submitted, that the plaintiff suffered lumbar back problems in September and October 2001, and again in January and February 2002. Certificates of capacity over that period referred to the lumbar spine. Further, a CT scan of the lumbar spine was taken in October 2001[95] which showed a mild left posterior annulus bulge. All of this evidence pointed to an injury to the lumbar spine in the first incident. It was acknowledged that the second incident had an aggravating effect, and “finished the plaintiff off” in respect of his lumbar injury, leading to significant surgery.
[95] PCB 65
79 Even in the event that the court was not to accept that the first incident caused any injury to the lumbar spine, Mr Jordan submitted that the plaintiff had suffered a very significant injury to his upper and middle spine in the first incident. While the upper spinal symptoms played a less significant role than the lower, Mr Davie was of the view that the plaintiff had suffered a cervical disc injury related to the first incident.[96] While Mr Schofield acknowledged the neck injury and symptoms played a lesser role, by 2009 those symptoms were becoming more significant. The evidence of the plaintiff supported a significant neck injury. He said[97] that his current problems were from the top of his spine to the lumbar region. Sometimes the lumbar spine was the worst area, and sometimes the upper spine.
[96] DCB 149
[97] T 55
Conclusions
80 This application has been difficult to determine. That difficulty lies in the fact that within approximately nine months of the first incident, the second incident occurred. Given this application is in respect of injury sustained in the first incident only, it is no easy matter to determine precisely the injury sustained in the first incident, and the consequences through to the present time.
81 The issues which I am required to determine in this application are, firstly, whether I am satisfied, the onus of proof being upon the plaintiff, that he suffered an injury to his lumbar spine in the first incident, and the extent of such injury and its consequences. Secondly, if the answer to the first question is no, the nature and extent of the injury to the plaintiff’s mid and upper spine in the first incident, and whether the consequences of that injury reach the “very considerable” level as the legislation requires.
82 There is no doubt the plaintiff suffered an injury to his mid and upper spine in the first incident. That is clear from the clinical notes and reports of the hospital where he first attended, and his treating general practitioner, Dr Hinchey. The first mention of any symptoms in the lumbar spine was on 12 September 2001, some five weeks after the first incident. Up until that time, the plaintiff was seen by Dr Hinchey on a number of occasions, and the complaints of injury were confined to the mid and upper spine. While Dr Oliver subsequently prescribed significant pain-relieving medication, it is not clear whether that was in respect of the upper spine or the lower spine or both.
83 The pain in the lumbar spine appeared to persist into October, such as to require a CT scan of the lumbar spine which was carried out on 23 October 2001. While this scan showed some mild bulging, I am not satisfied that the pathology shown can be specifically related to the first incident. Further, there was no complaint of referred pain into the left leg until after the second incident.
84 According to the report of Dr Oliver, the plaintiff complained of lumbar pain in January and February 2002, although by 6 March 2002 the plaintiff stated to Dr Oliver that he was feeling quite well.
85 There are two significant aspects of the evidence of the plaintiff in relation to the onset of lumbar pain at this time. The first was that he considered this pain was the same or similar to the pain that he had felt in the lumbar spine from time to time over the years since the first assault upon his spine when he was twelve years of age.[98] The further significant piece of evidence is the plaintiff’s frank explanation that he was unable to causatively relate that lumbar spinal pain to the first incident, as he was unable to say as to the cause of it.[99]
[98] T 88
[99] T 85
86 Overwhelmingly, from that time on, and through to the present time, both the plaintiff, and his solicitors upon his instructions, have apportioned responsibility for the injury to his mid and upper back to the first incident, and in respect of the injury to his lumbar spine to the second incident.
87 To accept the submission of Mr Jordan that there was a significant lower spinal injury in the first incident is to ignore all of the various histories, statements in the plaintiff’s affidavit, and letters written upon his instructions by his solicitors as are referred to above.
88 As Mr Jordan states, the opinion of Mr Schofield is significant. It appears, however, that he has presumed that from the time of the first incident the plaintiff suffered pain in his lower spine. I am not satisfied that was the actual situation.
89 Reference in the report of Dr Oliver to the word “still” does not lead me to the conclusion that the pain was suffered from the time of the first incident. That is so because in the history provided to Dr Hinchey, who treated the plaintiff from 13 August 2001 until 11 September 2001, there is no reference whatsoever to any lumbar problems.
90 Further, in Mr Schofield’s report of 4 December 2006[100] there is no reference by the plaintiff in the history provided to any injury in 2001, nor any reference of any kind to the first incident. That situation changes dramatically in his second report of 28 January 2009. It is difficult to understand how the plaintiff was unable to give a concise history to his treating orthopaedic surgeon until January 2009, when further information was provided by his solicitors.
[100] PCB 44-46
91 Mr Schofield notes that the plaintiff was never able to resume his pre-injury work activities after the first incident. While that is undoubtedly the case, the reason could as easily be as a result of the injury to his mid and upper spine.
92 In all these circumstances, I am unable to conclude that the plaintiff suffered an injury to his lumbar spine in the first incident. While undoubtedly he did suffer pain, sufficient to require examination by CT, this was, as the plaintiff accepted, no more than a recurrence of periodic lumbar pain which he had had over the years.
93 It is a matter then to consider whether the injury to the plaintiff’s mid and upper spine in the first incident is sufficient to attain the “very considerable” level. I have determined that it is not.
94 The difficulty in assessing the injury to the plaintiff’s middle and upper spine, and the consequences flowing therefrom, is that as from May 2002 the focus of medical attention and treatment has been the lumbar spine.
95 After the first incident, the plaintiff described ongoing pain to the middle and upper part of his back, with pain into the left shoulder and arm.[101] As at the date of swearing his first affidavit[102] he described pain which extended into and between his shoulder blades, numbness into the left shoulder and the fingers of the left hand. There were similar symptoms to the right hand.
[101] PCB 9
[102] PCB 11
96 According to the report of Dr Oliver, the general practitioner who treated the plaintiff from September 2001, there is reference from time to time after the date of the second incident to pain in the neck and shoulder,[103] particularly in June and September 2002.
[103] PCB 22
97 Dr Choong has treated the plaintiff as his general practitioner from May 2004 to the present time. In his reports of August 2004, August 2006, and a further undated report[104] there is no reference anywhere to any complaint of middle or upper spine pain, nor any treatment to that area. In fact, Dr Choong receives no history of any injury on 6 August 2001.[105] The only reference by Dr Choong to any neck pain is in his final report of 7 April 2009.[106] In one line in that report he states:
“Diagnosis – chronic neck pain – soft tissue injury.”
[104] PCB 25-30
[105] PCB 25
[106] PCB 31
98 It is difficult to understand how he makes such a diagnosis, without any reference to neck pain in the previous reports.
99 In Mr Schofield’s first report of 4 December 2006[107] there is no reference to any complaint of middle or upper back pain. It is reasonable to accept that in that report, his focus was upon the lumbar spine where he performed surgery. In the further report of 28 January 2009[108] and upon obtaining further information from treating practitioners, he then obtained a history that the plaintiff had neck pain on and off since the first incident. He referred to reports of radiological investigations, including a CT scan of the cervical spine in June 2007, which he said reported a mild posterior annular bulge at C6-7 and evidence of degenerative change. A repeat CT scan of October 2007 reported minor degenerative changes at C5-6, with no evidence of disc herniation.
[107] PCB 44-46
[108] PCB 47-50
100 He noted that the plaintiff’s neck had played a relatively minor role in his disability, although symptoms were getting worse as at 2009. He concluded that the plaintiff had suffered a significant extension strain of the neck and dorsal spine in the first incident.
101 The only other practitioner to give any consideration to the upper area of the plaintiff’s spine was Mr Davie on behalf of the defendant. In his report of 1 August 2002,[109] when he examined the plaintiff in July 2002 he obtained a history that in the first incident the plaintiff had experienced pain between the shoulder blades and into the left arm and neck. By the time of examination, however, the pain was “not too bad”, with an ache in the left shoulder. Mr Davie at that time thought there would be a slow recovery and eventually the plaintiff would return to pre-injury duties.
[109] DCB 147-8
102 In his next report of December 2002[110] he received a more comprehensive history of the first incident. When he examined the cervical spine he noted a good range of movement, and concluded the plaintiff had suffered a cervical disc injury in the first incident. When he again saw the plaintiff in December 2003 the focus of his attention was in respect of the plaintiff’s lumbar spine. He stated:
“I noticed originally that he had a neck problem but this apparently has
now settled down as he didn’t refer to any problems in his neck.”[111]
[110] DCB 149-50
[111] DCB 152
103 There are a range of radiological investigations of the plaintiff’s thoracic and cervical spines. An x-ray of the cervical spine of August 1999 showed no abnormality.[112] A CT scan of the cervical spine of November 1999 showed generalised central canal stenosis without disc protrusion.[113] A plain x-ray of the cervical and thoracic spines of 27 August 2001 showed some evidence of old trauma in the cervical spine, but was otherwise normal.[114] A CT scan of the thoracic spine of 6 September 2001 showed mild narrowing of mid-dorsal discs but no other findings of note.[115] An x-ray of the right shoulder of 16 October 2001 did not show any fracture.[116]
[112] DCB 21
[113] DCB 22
[114] DCB 25
[115] DCB 26
[116] DCB 27
104 A CT scan of the thoracic spine of 23 October 2001 demonstrated no abnormality.[117] Finally, a CT scan of the cervical spine of June 2007, requested by Dr Choong, showed a mild posterior annulus bulge at C6-7 but not associated with any compression on the thecal sac nor nerve root.
[117] DCB 28
105 It is difficult to attribute any pathology to the first incident, given the lack of any objective finding on the earlier CT scans. As Mr Schofield states, it appears the plaintiff’s cervical problems were minor only in the earlier years, but are now of more significance. In my view, given the passage of time, it is difficult to attribute his current symptoms to the specific incident of August 2001 rather than to his various heavier duties over the years, and earlier injuries.
106 It is clear the plaintiff did suffer pain in his middle to upper spine, extending into the neck and shoulder blades, after the first incident. The plaintiff, at that time, received significant pain-relieving medication, and was required to reduce his hours of work. Further, the certificates of capacity issued by Dr Oliver after the second incident do make reference to neck strain and thoracic problems. It is reasonable to infer that after the first incident, there was some interference with the plaintiff’s work capacity. Further, the plaintiff also had physiotherapy treatment in respect of his mid and upper spine on occasions over the period from 2002 to 2005.[118]
[118] See reports of physiotherapist - PCB 38-41
107 Despite the plaintiff’s complaints of constant upper back and neck pain,[119] these complaints are not reflected in the histories provided to the various doctors, particularly to his treating general practitioners. In my view, the plaintiff suffered pain at or around the time of the first incident, but the problem in his upper back and neck was relatively minor in the ensuing years. That was the history provided to both Mr Schofield and Mr Davie when the plaintiff was specifically questioned on the matter. If the plaintiff has suffered a disc injury, as opined by Mr Schofield and Mr Davie, then in my view it is relatively mild, and further it is difficult to attribute it to the first incident, given the heavy work that the plaintiff had been undertaking over the years, and the relatively recent onset of more significant complaints in that area.
[119] T 123
108 I have considerable sympathy for the plaintiff. He has a very serious lower- spinal condition which has not been alleviated by two episodes of significant surgery. However, the onus is upon him to prove the nature and extent of the injury suffered in the first incident, and the consequences which flow from it.
109 In the circumstances of this case, I am not satisfied that the injury to his mid and upper spine satisfies the “very considerable” test as the legislation requires. That finding applies both to pain and suffering, and economic loss. I am not satisfied that the plaintiff has suffered a reduction in earning capacity of 40 per cent or more when a comparison is made of his “without injury” earnings at or about the time of the first incident, as compared to his earning capacity at the present time. In my view, his present earning capacity, which I accept as being nil, is related to his lower back problems.
110 In those circumstances, the plaintiff’s application fails. I shall hear from counsel further as to costs.
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