Downes v Male
[2016] VCC 443
•17 March 2016 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised (Un) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03801
| TIMOTHY LEE DOWNES | Plaintiff |
| v | |
| SCOTT ANDREW MALE | First Defendant |
| and | |
| JOANNE MAREE MALE | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 1 March 2016 | |
DATE OF JUDGMENT: | 17 March 2016 (Revised) | |
CASE MAY BE CITED AS: | Downes v Male & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 443 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the spine – pain and suffering only – range case
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell with Mr M Fogarty | Arnold Dallas & McPherson |
| For the Defendants | Mr W R Middleton QC with Mr R Kumar | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant in June 2011 and in particular on 21 June 2011 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application primarily 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 relevant body function is the spine.
5 By s134AB(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, may be fairly described, at the date of the hearing, “as being at least very considerable and more than significant or marked”.
6 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
7 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
8 The plaintiff is thirty-five, having been born in March 1981.
9 The plaintiff completed Year 10, and from about 1998, did process work at a baking factory in Castlemaine. He worked as a labourer for a year at Centre State Drilling, and in 2000, found work with the Castlemaine Shire Council, working in the gardens.
10 The plaintiff then worked casually fruit picking for various employers until he obtained work with the defendant as a stonemason’s assistant in 2005.
11 Prior to 2011, the plaintiff was in good health. He had some problems with his neck, which were investigated by CT scan in 2008, but nothing sinister showed up, and he was eventually helped by some manipulation from a chiropractor.
12 The plaintiff had quite a bit of time off work for his neck condition as it was a problem for a year or so. He tried all sorts of medications in 2008 and 2009. At that stage, he was being treated by his family doctor, Dr Luscombe.[3]
[3]Transcript “T” 13
13 The plaintiff attended Fusion Physiotherapy for chiropractic treatment between 2008 and 2011.[4] He was seeing Chantelle Taylor during that time.[5]
[4]T26
[5]T27
14 The plaintiff deposed that as he was doing heavy labour from time to time, his back felt stiff. He had some treatment, which improved it, and he did not believe he needed any time off work.
15 The plaintiff agreed he had some back pain with work before the said date. From time to time, he would wake with a stiff back.[6] He was not treated by Chantelle Taylor in that regard. He had not had any chiropractic treatment for his back before the said date.[7]
[6]T28
[7]T12
16 The work with the defendant involved the laying of slate and building retaining walls, and involved a lot of heavy lifting.
17 In June 2011, the plaintiff was laying slate for a patio at a job over a number of weeks. The slate was delivered on a truck, which he unloaded manually using a wheelbarrow. Some of the pieces of slate were as big as a table.
18 The plaintiff’s boss helped at the start of the job before he went on holiday. Another workmate then helped out with some of the jobs.
19 On the said date, the plaintiff had great back pain after another day working with the slate (“the incident”). He made an appointment to see a chiropractor, Matt Sexton, whom he attended in late June and early July.
20 After the incident, Ross Scott, an employee of the defendant, sent the plaintiff for a chiropractic session with Ms Taylor. The plaintiff has not seen her since that visit.[8]
[8]T13
21 As the plaintiff was not improving, on 27 July 2011, he saw a doctor at Tristar in Kangaroo Flat. The plaintiff had a CT scan and was advised to have physiotherapy, which he undertook from 2 August 2011.
22 The plaintiff then attended his family doctor, Dr Luscombe in Castlemaine, who referred him to an osteopath, Mr Moresi. The plaintiff attended Mr Moresi on a number of occasions from 29 August to 19 October 2011, but his condition did not improve.
23 The plaintiff lodged a WorkCover claim on 3 August 2011. In the Claim Form, he described injury to the thoracic spine, lifting slate. He put the words “thoracic spine” on the form because he just wrote what his doctor told him. There was not any specific incident as such. The plaintiff hurt himself during the day at work.[9] He then said the injury was sudden, as he was laying a piece of slate at the time.[10]
[9]T15
[10]T23
24 The plaintiff then saw Dr Gilford in Bendigo for a further opinion. She arranged a bone scan in October 2011 and an MRI scan the following month. The plaintiff also had some hydrotherapy.
25 On 2 July 2012, the plaintiff was seen by orthopaedic surgeon, Mr John Cunningham. He suggested injections into the facet joints, but they did not happen.
26 WorkCover would not pay for the injections. The plaintiff discussed this situation with his doctor and “that was it”. The plaintiff did not know how the system worked. He was basically doing what he was told. He disagreed that he continued to get better, and that he really thought in the end he did not need the injections.[11]
[11]T16
27 The plaintiff continued to attend Fusion Physiotherapy until August 2012, at which time a gymnasium program was approved.
28 The plaintiff looked for alternative work, including private investigator work which involved working in security. He did a 14-week course through Complex Training Academy and obtained two security licences. He has a licence to work as a bouncer, but he chooses not to do so.[12]
[12]T8
29 In about June 2013, the plaintiff began working as a security guard for North State Security (“the employer”) doing cash pickups at various businesses. His hours depended on the day of the week. Sometimes he worked four hours, and sometimes seven if he went to Melbourne. He worked five days a week, and occasionally did weekend work.
30 The work involved a bit of lifting, mainly of cash bags. The heaviest bag of coins weighed 5 kilograms.[13] Sometimes the plaintiff had to split up the bags so they were not too heavy for him, but generally, that was not too much of a problem, as long as he was careful not to lift too much.
[13]T10
31 The plaintiff drove a small automatic Kia. He could cope with driving, as he did short trips, and constantly got in and out of the car. He did not believe he could work as a truck driver on long-distance hauls. If the plaintiff knew he was going on a weekly work trip to Melbourne, a six-and-half-hour round trip, he took Panadol Osteo tablets. He would have a break at Heathcote and again at Kilmore, where he could stretch his legs.
32 The plaintiff took Panadol Osteo when working, when he felt the pain. He also took Panadeine Forte after a bad day or to help him sleep at night. He was not permitted to take Panadeine Forte or anti-inflammatories when working, because he had to carry a firearm, and taking medication was contrary to the terms of his firearms licence.
33 As he had to stand a lot in his job, the plaintiff wore special socks, inserts for his boots, and special boots, to help him tolerate standing. He found prolonged sitting or standing difficult.
34 As of March 2015, the plaintiff’s back pain was always there, but became worse from time to time. Generally, sleep was okay, as long as he took medication. If he took anti-inflammatories, the plaintiff needed to take Nexium to counteract the stomach pain it caused.
35 The plaintiff had recently been having physiotherapy and chiropractic treatment from Matt Sexton. It was weekly, then monthly, and the plaintiff occasionally saw his general practitioner.
36 The plaintiff used to enjoy riding a road bike, part of the enjoyment of which was leaning into corners. He travelled on the bike to and from work. However, he was not able to manage the bike after his injury, and sold it. He had not ridden the motorbike since the incident.[14]
[14]T17
37 The plaintiff had two old motorbikes which he was tinkering with, to get them back on the road. At that stage, he hoped to be able to ride them in the future. They were not racing bikes, and did not need the same physical involvement he required on the bike he sold.
38 The plaintiff woke with a stiff back in the morning, but it was better after a hot shower. He found it difficult to stand for long periods, like when drying the dishes. If he held a baby he needed to sit down. His children were aged thirteen and eleven, and his activity with them was limited because of his back injury.
39 The plaintiff enjoyed gardening, but then avoided it, because it provoked back pain. His wife did the gardening. He mowed the lawn with a pull-start mower. It was not a demanding task given the size of their property.
40 The plaintiff avoided heavy lifting, and felt embarrassed that his wife carried the groceries. He had difficulty carrying a supermarket basket.[15] If his wife wanted him to rearrange furniture, the plaintiff was unable to help her, and that upset him.
[15]T20
41 The plaintiff avoided going on long drives, which meant they missed out on family holidays.
42 The plaintiff had always wanted to go bungee jumping or sky diving, but was not prepared to risk injuring his back further, and would therefore miss out on achieving those dreams.
43 Due to his back injury, the plaintiff could no longer perform sexually the way he used to. He had also put on weight, as he was no longer as active as he used to be.
44 The plaintiff had dreamt of building his family a stone home, but no longer felt able to do so. He had always been proud of his ability to do everything the family needed by himself.
45 The plaintiff was an outdoor person who could turn his hand to anything practical. He was now significantly limited in such tasks, and that upset him greatly. As a result, he was depressed, and that had impacted on his marital relationship.
46 The plaintiff was no longer able to do work which required repetitive bending or lifting, and this had limited his ability to find suitable work.
47 The plaintiff swore a further affidavit on 10 February 2016 in which he deposed that the pain and limitations on his life have continued to affect him.
48 The plaintiff finds he can manage his work as a security guard taking Panadol Osteo during the week, and occasionally Panadeine Forte at night. He only takes Panadeine Forte on the weekends, because he is not able to take medication whilst carrying a firearm. He takes Nexium daily for gastrointestinal problems caused by use of his anti-inflammatory medication.
49 The plaintiff generally takes Panadeine Forte a few times a week. He would take this medication more frequently if not for the terms of his firearms licence.[16]
[16]T38
50 The plaintiff obtains Panadeine Forte prescriptions from Dr Gilford. He last saw her six months ago. An appointment with her was arranged for 8 March. The last prescription for Panadeine Forte provided for 120 tablets.[17]
[17]T34
51 The plaintiff takes Panadol Osteo every day and his intake depends on how busy his day has been, particularly his work.[18]
[18]T35
52 The plaintiff sees a chiropractor once a month, who treats both his neck and lumbar spine. This treatment helps with his back pain.
53 The plaintiff thought Dr Murphy had confused his neck with his back when he reported that the plaintiff said he had two weeks relief of back pain following chiropractic treatment. The plaintiff last saw his chiropractor in December 2015.[19]
[19]T21
54 None of the plaintiff’s present medication is for his neck. Although he still has chiropractic treatment for his neck, he has never been advised to take medication for it.[20]
[20]T32
55 The plaintiff continues to experience back pain, although it is reduced in severity since he stopped working as a stonemason. He experiences pain in the middle of his lower back which tends to be worse at the end of a busy day. If he turns the wrong way, his back pain worsens.
56 The plaintiff demonstrated the site of his pain as in the lower half of his back from the middle down.[21]
[21]T14
57 It was Dr Gilford’s words in August 2013 that the plaintiff “still experienced some lower back pain”. The plaintiff agreed he had slightly improved, as Dr Gilford described.[22] He agreed his endurance had improved because of working. When Dr Gilford reported that the plaintiff used medication “at times”, these were her words. His intake varied with his fluctuating condition. Currently, he takes medication every day.[23]
[22]T21
[23]T22
58 The plaintiff could not remember telling Mr Kossmann that his right leg pain had resolved after six months. It still comes and goes.[24]
[24]T23
59 In re-examination, when asked about the frequency and severity of his pain, the plaintiff said he always had trouble explaining, but it is always there and the pain level just varies. When asked to rate his pain out of 10, the plaintiff described a baseline was like 5 and it “obviously” gets up to 10 probably two or three times a week.[25] He has never been pain free since the incident.[26]
[25]T37
[26]T38
60 The plaintiff has difficulty getting comfortable in most chairs, and needs to shift around constantly to get comfortable. It is better sitting in the car, but he still shifts around to ease the pain. After a long drive, the plaintiff’s back feels fairly sore.[27] If he stands in one spot for ten minutes or so, he needs to move around to prevent a build up of pain.
[27]T36
61 The plaintiff has recently noticed some difficulty with urinary urgency, which occurs around four times a week, but he is yet to see a doctor about this.
62 The plaintiff’s back pain limits the extent to which he can help his wife with household tasks. He can vacuum one or two rooms at most. He usually mows either just the front or the back lawn, and his wife finishes the job. Each of these pieces of lawn is quite small. The plaintiff can do the dishes but he has difficulty as standing and leaning over the sink for any length of time increases his pain.
63 The plaintiff’s main problem is with repetitive tasks.[28]
[28]T33
64 The plaintiff has difficulty having a kick of the football and playing with his son who is now aged twelve.[29]
[29]T19
65 The plaintiff has not done any tinkering with his motorbikes in the last three or four months “because of just money”.[30]
[30]T39
66 The plaintiff was asked about the apparent conflict between his first affidavit, wherein he said generally, his sleep was “okay”, and telling Mr Kossmann he is often woken at night by pain. It just depends; it is not every day he is woken up. If he gets woken up by pain, he takes tablets if it falls within his work program for the following day.[31]
[31]T25
67 The plaintiff does not have trouble getting to sleep, but he wakes up in the night due to pain.
68 The plaintiff now works a fortnightly roster. He can work up to 48 hours a week. He is on call. The majority of time he picks up money and takes it to the bank.[32]
[32]T9
69 The plaintiff agreed he was managing his work reasonably well because he had a comfortable vehicle and could vary his posture frequently.[33] He does not have to cope with heavy lifting. However, he is concerned that if for some reason his present job ends, he will be significantly limited in the kind of work he can take on. His experience in the past has been more in manual work, which he would not be able to perform now.
[33]T31
70 Anything the plaintiff “does in general” causes problems with his back. He would not be able to go back to work as a stonemason.[34]
[34]T35
71 The plaintiff agreed his present job is secure. He is only a casual, but he was valued in his job.[35] The plaintiff’s current employer does not put on any full-time employees.[36]
[35]T11
[36]T36
Treaters
72 Dr Gilford noted on 10 July 2012, the plaintiff had been to Melbourne to see Mr Cunningham, who had recommended spinal injections. She saw the plaintiff on 2 July 2012 and gave him another WorkCover certificate, noting he was trying to get on with things, and his pain was just about the same.
73 On 8 August 2012, Dr Gilford noted the plaintiff was now trying to see if he could obtain employment as a security guard. Panadeine Forte and Tramal were prescribed.
74 On 2 October 2012, Dr Gilford noted that the plaintiff had an appointment in November 2012 with an orthopaedic surgeon in Richmond, and she had not heard back about the spinal injections. The plaintiff had been attending the gymnasium regularly. Panadeine Forte and Tramal were prescribed. A letter was printed to Benjamin Burt.
75 On 30 October 2012, Dr Gilford noted the plaintiff was being seen by an independent orthopaedic surgeon.
76 On 27 November 2012, Dr Gilford noted the plaintiff was still having physiotherapy. There was no change on 2 January 2013. The plaintiff had finished at the gymnasium at the end of November 2012 and had started a government funded security course on 9 January 2013.
77 On 12 June 2013, Dr Gilford wrote to the plaintiff’s solicitors. She advised that over the last year or so, the plaintiff had been attending a physiotherapist for treatment, as well as doing home exercises. He continued to use Panadeine Forte for relief as needed.
78 On 26 June 2013, Dr Gilford wrote to the insurer seeking a further assessment of the plaintiff’s back pain. She noted the plaintiff’s condition had remained unchanged for the past ten months. He still had lower back pain which radiated at times into his knee. He was using Panadeine Forte and Voltaren.
79 Dr Gilford noted the plaintiff had been trying to find alternative employment and focused a lot of his time and effort in that direction. There was a further request for injections.
80 On 16 August 2013, Dr Gilford last wrote to the plaintiff’s solicitors. She noted she had seen the plaintiff on three occasions since 12 June 2013 and had not given him any further treatment since. There were attempts to organise facet joint injections but liability was denied.
81 Dr Gilford noted the plaintiff on occasion used Voltaren for his back pain and also Panadeine Forte. He had started work as a security guard, where he stood quite a bit, and he had purchased special shoes and socks.
82 Dr Gilford then thought the prognosis was uncertain. The plaintiff still experienced some lower back pain. He was not able to sit or stand in one position for a prolonged period. Since starting work as a security guard, his endurance had improved, and he was tolerating standing better than when he started the job.
83 Dr Gilford thought it unlikely the plaintiff would be able to perform duties where he was required to do repetitive bending or lifting, and that would restrict the sort of employment he could access. He would not be able to go back to labouring type work, and obviously those restrictions would affect his lifestyle to some degree.
84 Dr Gilford thought the plaintiff was able to do light duties such as security work. It would be possible for him to consider office type work, or work as a storeman. She thought he may need to retrain in another field of employment. She noted the plaintiff was keen on security work and had done quite a bit to obtain work in that field, and had obtained a gun licence.
85 Dr Gilford thought the plaintiff’s injury had stabilised. He needed to be careful when doing any type of lifting or repetitive bending. She noted he had been given exercises by a physiotherapist.
86 Mr John Cunningham, orthopaedic surgeon, saw the plaintiff on 2 July 2012.
87 At that stage, the plaintiff was taking Nexium, Panadeine Forte, Panadol Osteo and QVAR, and using a Ventolin inhaler. In terms of household chores, he was limited around the home to cleaning. He had raked the leaves the week before, which caused his pain to become a lot worse.[37]
[37]PCB 38
88 Mr Cunningham noted on examination, the plaintiff walked with a normal gait. Reflexes were intact and symmetrical, and there was negative straight leg raise. Extension was very tender, but flexion was relatively asymptomatic.
89 Mr Cunningham noted the imaging that the plaintiff presented with revealed some mild degeneration of both L4‑5 and L5‑S1 facet joints bilaterally. He considered that would fit in with the pattern of the plaintiff’s pain, so he requested facet joint injections, which had yet to be performed.
90 Mr Cunningham’s provisional diagnosis was facet joint degeneration, possibly at L4‑5 and L5‑S1. He thought the result of the injections would greatly assist in firming up the diagnosis. He thought the plaintiff’s back pain appeared to have stabilised, but he was unable to provide much more of a prognosis as he still had not had the opportunity to firm up his diagnosis.
Investigations
91 X-rays of the plaintiff’s lumbar, thoracic and cervical spine were organised by his general practitioner on 27 July 2011.
92 It was reported in the lumbar spine there was minor irregularity of lower thoracic and upper lumbar vertebral endplates, which may be the result of past minor juvenile osteochondritis. There was no evidence of more recent trauma, and no neural arch defect. Sacroiliac joints were normal.
93 Dr Gilford organised a three-phase bone scan in October 2011.
94 It was reported that there was no scintigraphic evidence of significant inflammatory facet joint osteoarthritis within the lumbosacral spine or within the thoracic spine, or other discrete bone tracer avid lesion within the back to explain the patient’s symptoms.
95 Dr Gilford organised a lumbar CT scan in October 2011. It was reported there was no evidence of progressive disc pathology.
96 Dr Gilford organised an MRI scan of the plaintiff’s lumbar spine in November 2011.
97 It was reported the intervertebral discs were well hydrated throughout the lumbar spine, with normal disc height and no disc bulges, protrusions, or extrusions. Anterior spondylitic change was noted at L1‑2. There was mild to moderate degenerative facet joint change at L4‑5 and L5‑S1, with associated subchondral bone marrow compartment oedema at both those levels in keeping with active arthritic change.
Medico-legal examiners
98 The plaintiff was examined by Mr Thomas Kossmann, orthopaedic surgeon, in December 2015.
99 At that stage, the plaintiff complained of persistent lumbar back pain, worse with movement, and aggravated by forward flexion. The pain fluctuated in intensity, and was directly proportional to the level of activity. The plaintiff could sit or stand for an hour before he had to change position to alleviate his symptoms. He was often woken at night because of pain.
100 The plaintiff told Mr Kossmann he was managing with the demands of his work as a security guard full time.
101 The plaintiff told Mr Kossmann he was unable to kick a football with his son because of his injury. Further, his injury had had an adverse impact on his sexual relationship.
102 On examination, the plaintiff was tender to palpation, and there was restricted lumbar movement.
103 Mr Kossmann noted the prognosis of degenerative facet joint arthropathy is often progressive in nature. He thought the plaintiff’s prognosis may improve with a multidisciplinary pain management program and psychological counselling. He might also benefit from a trial of acupuncture, manipulation, traction, biofeedback, and/or heat.
104 Failing that, Mr Kossmann thought the plaintiff may benefit from consideration of L4‑5 and L5‑S1 corticosteroid injections and medial branch blocks. In the event the branch blocks provided symptomatic relief, Mr Kossmann thought the plaintiff may be a candidate for consideration of radiofrequency ablation procedures.
105 Mr Kossmann diagnosed ongoing lumbar back pain in the setting of a symptomatic aggravation of mild to moderate degenerative facet joint disease at L4‑5 and L5‑S1.
106 On balance, Mr Kossmann thought the incident was responsible for the plaintiff’s injury. He considered the plaintiff’s condition had substantially stabilised.
107 Dr David Murphy, consultant physician in rehabilitation medicine, examined the plaintiff in December 2015.
108 The plaintiff told Dr Murphy he currently experiences moderate back pain, which has settled to a significant degree since he stopped working as a stonemason. He had some difficulty with extending the spine, and developed pain in the middle of the low back, which tended to be worse at the end of a busy day. The pain fluctuated from day to day. The plaintiff did not have any significant leg pain or paraesthesia or numbness in the leg. He did not have any bladder or bowel disturbance.
109 The plaintiff advised he could sit comfortably for an hour or so, but was uncomfortable after standing in the one spot for two minutes, so tended to walk around. His walking ability was reasonable. In the last two weeks he had noticed some difficulty with urinary urgency.
110 The plaintiff was unable to take strong medication because of his firearm at work. He took Panadol Osteo during weekdays if he had significant pain, and took Panadeine Forte, particularly at night on the weekend.
111 The plaintiff was having monthly chiropractic treatment and some manipulation of his lumbar spine, which gave him some relief for a week or two.
112 The plaintiff told Dr Murphy that he was managing his work reasonably well, patrolling and checking premises as a security guard, because he had a comfortable vehicle and could vary his posture quite frequently. He worked alone 90 per cent of the time. His duties also involved cash deliveries and pickups to small businesses.
113 On examination, the plaintiff moved reasonably freely in and out of the chair. There was normal posture of the lumbar spine and spinal alignment. There was tenderness over the lower facet joints bilaterally. There was quite restricted extension and mildly restricted lateral flexion and rotation. Neurological examination was normal, as was straight leg raising.
114 Dr Murphy diagnosed facet joint dysfunction of the lumbar spine which had occurred as a result of the plaintiff’s work.
115 Dr Murphy thought the plaintiff’s present capacity for work was that he was able to undertake employment which did not involve repetitive lifting, bending or twisting, sitting or standing for more than an hour for a period of time, prolonged and repetitive jolting to the lower lumbar spine.
116 Dr Murphy considered the plaintiff’s prognosis was quite reasonable, given he had changed his work and was not as frequently exposed to activities which may aggravate his condition. In his view, the plaintiff’s condition had stabilised.
The Defendants’ medical evidence
117 Mr Matthew Moresi, osteopath, wrote to WorkSafe in September 2011 advising that the plaintiff had been seen on 29 August 2011 for low back pain and an L5 facet strain was diagnosed. A request was made for funding of a hydrotherapy program.
118 Dr Roland from Mostyn Street Clinic wrote to Allianz in September 2011 seeking funding of a swimming pool membership. The likely diagnosis was facet joint arthritis.
Medico-legal evidence
119 Mr Brian Davie, orthopaedic surgeon, examined the plaintiff in November 2012.
120 The plaintiff then complained of pain in the lower back extending into the hips and pain in the legs at times. There was intermittent back pain. There was no tingling or numbness or weakness in the legs.
121 On examination, there was no spinal tenderness. There was normal movement of the lumbar spine with pain at the limits of movement. Neurological examination was normal. Straight leg raising was to 80 degrees bilaterally.
122 Mr Davie thought the plaintiff suffered from a chronic spinal back strain, consistent with the type of work he did as a stonemason. It was reasonable for the plaintiff to have a specific episode of more increasing pain on the said date.
123 Mr Davie noted the plaintiff then had some residual back pain. He believed the plaintiff could return to work but would not advise that, as there was a strong chance the symptoms would worsen.
124 Mr Davie thought it would be better for the plaintiff to change his occupation from stonemason. He thought the plaintiff had a current work capacity with suitable training.
125 Mr Davie considered the plaintiff had a capacity for job seeking and it would be useful if he could be provided with some training. The plaintiff was able to carry out the work suggested in the vocational assessment. He believed the plaintiff could work as a mobile plant operator where he could sit and stand as necessary, sales representative, sales assistant in hardware, traffic control, estimating surveyor or draughtsman. Mr Davie believed the plaintiff could also work as a security guard. He did not think the plaintiff was totally and permanently disabled and should be able to work in the immediate future.
126 Mr Davie would not recommend any further treatment and encouraged self management.
127 Mr Davie reviewed the plaintiff on 24 July 2013.
128 The plaintiff then remained much the same, complaining of low back pain, at times extending into the mid back and neck. He also had some hip soreness and groin pain and some pain in his knee and foot.
129 The plaintiff told Mr Davie that he was managing satisfactorily with his job for the last two months as a security guard but was on his feet all day.
130 On examination, there was a good range of lumbar movement without any pain. There was tenderness in the thoracic and lumbar areas in the midline, to palpation, but no abnormalities in the range of lumbar movement. There were no neurological abnormalities.
131 Mr Davie thought the plaintiff sustained a chronic musculoligamentous back strain specific to the type of work he did. Although the plaintiff still complained of low and mid back pain and other aches and pains, there was nothing to find on clinical examination, so Mr Davie believed that he had now recovered. He did not believe that the plaintiff required any active or passive treatment. He noted the plaintiff had already returned to work. He thought the plaintiff had taken a sensible approach doing lighter type work and he believed this should continue permanently.
132 Mr Davie considered the plaintiff was better to move into lighter work and not return to work as a stonemason. He thought he had recovered from the strain and was capable of carrying out alternative duties of a lighter nature.
133 Mr Davie believed the plaintiff could work as a courier, postal driver, painting assistant, pest and weed controller, inventory and despatch officer and spare parts interpreter. Mr Davie did, however, believe that the plaintiff was probably best to continue with his present security work indefinitely.
134 Mr Peter Battlay, general surgeon, examined the plaintiff on 27 November 2013 for the purposes of an AMA assessment.
135 The plaintiff told him that his back was not too bad. He had a recurrent pain across the lumbosacral junction, spreading into each flank for 20 centimetres and pain in both hips with only occasional pain in the back of the thigh, more on the left than the right. He denied any bladder or bowel dysfunction. There was no numbness.
136 The plaintiff was uncomfortable sitting for long periods and had to change position. Standing was uncomfortable after a while and he preferred to walk. On average, the plaintiff had four-hour shifts and he was coping with this length of shift. He avoided lifting heavy objects and felt embarrassed when his wife had to carry the groceries.
137 On examination, there was full extension and lateral flexion of the back with some minimal end of range discomfort but no spasm or dysmetria. The plaintiff was able to flex fully without obvious discomfort. He had a very weak positive sciatic nerve test on both sides. There was no neurological loss in the lower limb.
138 Mr Battlay diagnosed degenerative change in the lumbar spine with a permanent stable impairment and symptomatic lumbar spondylosis.
139 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in July 2015.
140 The plaintiff then noted ongoing low back pain felt in the mid to low lumbar region. There was no sciatic pain. There was always pain but it varied in its intensity.
141 On physical examination, there was no deformity of the spine and there was mild tenderness. Flexion was to 70 degrees and extension to 15 degrees. There was low back pain with extension. Lateral flexion and rotation to both sides was to 25 degrees. Neurologically, the plaintiff was normal.
142 Based on the plaintiff’s description of his work on the said date, Mr Dooley believed he had aggravated underlying degeneration of the lower lumbar spine.
143 Mr Dooley noted the plaintiff had had standard conservative treatment and it was reasonable for him to take simple analgesia. It was important he remain generally active and that he undertook exercise. Mr Dooley did not believe the plaintiff required regular ongoing formal conservative treatment. He thought facet joint injections would be reasonable in the plaintiff’s management.
144 Mr Dooley noted that although the plaintiff described low back pain, he was coping with his work as a security agent. Mr Dooley considered for the plaintiff’s overall wellbeing, it was important that he remain in stable employment.
145 Mr Dooley concluded that some patients with symptomatic degeneration of the low lumbar spine will experience an ongoing background type of low back pain with superimposed exacerbations of pain.
146 Mr Dooley noted the plaintiff continued to experience ongoing low back pain with possible intermittent exacerbations. He would not expect the plaintiff’s orthopaedic condition to deteriorate over and above the natural evolution of his underlying degenerative lumbar spine condition. If the plaintiff had an exacerbation of pain that failed to settle in a timely fashion, then short-term conservative treatment and possibly facet joint injections would be appropriate.
147 Having seen the photographs of the plaintiff working as a security guard, Mr Dooley thought there was nothing inconsistent in his presentation. He noted the plaintiff had a good range of spinal movement on clinical examination. As was not uncommon, the plaintiff complained of pain with spinal extension. As the plaintiff had pointed out, he could not sit around at home as he had a young family and life had to go on.
148 On viewing the surveillance DVD, Mr Dooley noted the plaintiff was able to get in and out of vehicles comfortably and walk at a normal pace comfortably. At times, while walking, he carried bags with him.
149 Mr Dooley thought there were no obvious external signs that the plaintiff was experiencing pain. Overall, however, he believed that these findings would be consistent with someone who had symptomatic degenerative disc disease but, in essence, put up with their pain and continued their activity.
150 Mr Dooley noted there was a short period of footage showing the plaintiff entering a supermarket and renting a carpet shampooer. The footage then showed him bending to a right angle comfortably and lifting the shampooer into the rear of a vehicle. Mr Dooley commented that the plaintiff’s ability to do this would be slightly at odds with his reported difficulty with heavy household chores.
Video surveillance
151 There was one minute of video taken on 25 July 2015. The plaintiff was shown at a supermarket collecting a steam cleaner. He wheeled it to his car, lifted it and put it in the boot without apparent difficulty.
Claim documents
152 The plaintiff submitted a Claim for Compensation on 3 August 2011.
153 The plaintiff set out that he first noticed injury on 21 June 2011 and stopped work on 26 July 2011. The condition was reported to his boss, Scott Male. The plaintiff described a soft tissue injury to the thoracic spine that “just started one day laying slate”.
Overview
154 There is no dispute the plaintiff suffered a compensable injury to his lower back on the said date.
155 The defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[38] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[38][2006] VSCA 171
156 Whilst the plaintiff noted a thoracic injury on his Claim Form and initially, investigations were undertaken of all levels of the spine,[39] the consensus of medical opinion is that the plaintiff suffered an aggravation of degenerative facet joint disease in the lumbar spine. Mr Davie is the only practitioner of the view the plaintiff has recovered from his work-related injury.
[39]T45
157 Although there was a suggestion of a previous back condition, counsel for the defendant did not submit that this was an aggravation case where the principles in Petkovski v Galletti[40] applied.
[40][1994] 1 VR 436
158 I am satisfied that the plaintiff’s spinal condition has a substantial organic basis.[41]
[41]Meadows v Lichmore Pty Ltd [2013] VSCA 201
159 The issue in this case is one of range[42] – is the plaintiff’s spinal impairment “serious” in terms of the statutory test?
[42]T4
160 Counsel for the plaintiff submitted with the plaintiff’s age,[43] inability to return to his trade, interference with domestic activities and need for regular medication, consistent with cases such as Sutton v Laminex Group Pty Ltd,[44] his impairment met the very considerable test.
[43]See Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181 at paragraph [43]. Ashley and Beach JJA noted that the duration of symptoms in a young person could render an impairment serious which would not be serious in an old person.
[44](2011) 31 VR 100
Credit
161 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[45]
“… 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.” [46]
[45](2010) 31 VR 1
[46](ibid) at paragraph [12]
162 Generally speaking, counsel for the plaintiff submitted that the plaintiff was doing his best. He was not a terribly sophisticated witness, and at times was confused. He made the appropriate concessions, such as being unable to tinker with his motorbikes because of a shortage of funds.[47]
[47]T48
163 Further, it was submitted the film was not of any significance, as it simply showed the plaintiff on one occasion lift an item that was not particularly heavy.[48]
[48]T52
164 Counsel for the defendant relied on the level of movement shown by the plaintiff in the film and Mr Dooley’s comments in relation thereto.[49]
[49]T48
165 In my view, the plaintiff was generally a credible witness. The film did not show any activity inconsistent with his evidence of his level of pain and restriction. He was not shown doing any task on a repetitive basis. It was a once off, not particularly heavy or strenuous movement.
Pain
166As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[50]
“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);
… .”
[50](supra) at paragraph [11]
167 In his affidavits, the plaintiff described relatively moderate pain. In his first affidavit, he deposed that pain was always there but became worse from time to time. He woke with a stiff back, which was better after a hot shower.
168 In his second affidavit, the plaintiff described middle lower back pain which had reduced in severity since he ceased working as a stonemason and was worse towards the end of the day.
169 When his counsel asked him to rate his pain out of 10, the plaintiff described a baseline of about 5 out of 10, increasing to 10 probably two or three times a week.[51] He also stated that he had never been pain free since the incident.[52]
[51]T37
[52]T38
170 In my view, the level of pain described by the plaintiff in re-examination upon direct questioning by his counsel was far more significant than that reported by him to doctors, both treaters and medico-legal examiners.[53]
[53]T41
171 I do not accept this can be explained by any difficulty on the plaintiff’s part in describing his pain, as his counsel suggested was the case.[54]
[54]T49
172 On recent examinations in December 2015, Dr Murphy noted the plaintiff described moderate back pain which had settled to a significant degree since ceasing work as a stonemason. The plaintiff described to Mr Kossmann persistent, fluctuating pain, worse with movement. In mid 2015, Mr Dooley noted ongoing mid to low back pain varying in severity.
173 There is no up-to-date report from the plaintiff’s general practitioner, Dr Gilford, whom he last saw six months ago. However, as of August 2013, when she last reported, the plaintiff “on occasion” used medication and he had “some low back pain”.[55] She also acknowledged some improvement and increased tolerances.[56]
[55]T43
[56]T42
174 In my view, when she last reported, Dr Gilford did not consider the plaintiff had a significant back complaint
175 Further, there have been no major clinical findings on examination since the said date. There have been findings of tenderness and some restriction of lumbar movement on occasions of varying degrees. No neurological abnormality has been found.
176 I accept however, in the absence of significant clinical findings, no doctor considered the plaintiff did not experience pain. Further, the plaintiff has been consistent in his presentation.[57]
[57]T52
Treatment
177 In Haden Engineering Pty Ltd v McKinnon,[58] Maxwell P also considered what the plaintiff did about his pain was also a relevant consideration.[59]
[58] Supra
[59](ibid) at paragraph [11]; T45
178 There have been no investigations since November 2011.
179 The plaintiff has had limited treatment for his back complaint.
180 In recent years, the plaintiff’s attendances on his general practitioner have been infrequent. He last saw Dr Gilford six months ago. There has been no further specialist intervention since Mr Cunningham suggested conservative care in 2012.
181 Facet injections that were suggested at that stage did not go ahead because funding was denied. This decision was not challenged by the plaintiff.
182 The plaintiff has ongoing chiropractic treatment for both his back and neck, having been treated for his neck since 2008.
183 Whilst the plaintiff’s medication intake has varied over the years, it seems at present, he takes Panadol Osteo regularly and Panadeine Forte when it does not interfere with his work and he is in significant pain, as he described to Dr Murphy.
184 The plaintiff made brief reference in his first affidavit to sleeping “okay” so long as he took his painkilling medication. In his second affidavit, he did not mention any problems sleeping. The plaintiff next mentioned sleep difficulties when examined by Mr Kossmann late last year and during re-examination.
185 Given these inconsistent histories and the absence of prescription sleeping medication, I do not accept the plaintiff has significant problems sleeping due to back pain.
Activities
186 Counsel for the plaintiff submitted the flavour of the plaintiff’s viva voce evidence and the medical evidence was that the plaintiff avoided activities such as long drives and outside work requiring bending or lifting, missed out on family holidays, and the intimate side of his relationship was affected due to his back condition.[60]
[60]T51
187 Whilst he was not directly challenged as to these issues, in my view, any such claimed consequences are not “serious”, alone or taken together.
188 The plaintiff is still able to mow the lawn and do a bit of gardening. It is hard to accept he cannot help his wife with the grocery shopping when he is able to work in excess of full-time hours.
189 Tinkering with the cars stopped three months ago because of a shortage of funds, not because of the plaintiff’s injury.[61]
[61]T47
Work
190 Counsel for the plaintiff submitted a significant consequence was the plaintiff’s inability to return to work as a stonemason’s assistant or in any other heavy work.
191 The consensus of medical opinion is that the plaintiff does not have the capacity for heavy manual work.
192 Although the plaintiff had worked as a stonemason’s assistant for six years prior to injury, this was not a trade for which he was qualified. He did not mention in his affidavits or any history to doctors that this was his dream job or that he intended to obtain any qualifications in this field.[62]
[62]T47
193 Whilst the plaintiff was not cross-examined about his dream of building a stone house, this issue was only mentioned in his second affidavit. Although the plaintiff may have difficulty building a stone house, there was no evidence of any plans in this regard or that there was finance available to the plaintiff to embark upon that course.
194 Whilst it is not disputed the plaintiff cannot do heavy physical work, counsel for the defendant relied on Sumbulv Melbourne All Toya Wreckers Pty Ltd[63] where Chernov JA held that it was a matter of significance that someone is able to undertake alternative employment on a full-time basis when assessing pain and suffering consequences.[64]
[63][2006] VSCA 292
[64](ibid) at paragraph [24]; T47
195 However, as the Court stated in Stijepic v One Force Group Aust Pty Ltd,[65] a return to alternative employment was just one of the factors to be taken into account and not crucial to the issue of serious injury in terms of pain and suffering.[66]
[65]Supra
[66](ibid) at paragraph [44]
196 The plaintiff is able to cope with his present job in security, working up to 55 hours per week. He has not required any time off work because of back pain, nor is there any restriction placed by his general practitioner on the duties he is able to perform.
197 The plaintiff is a valued employee on his own description, and his job is secure.
198 In these circumstances, I am not satisfied any employment-related consequences are “serious”.
199 Taking into account the evidence as a whole, I am not satisfied the consequences of the plaintiff’s spinal impairment meet the statutory test of “serious”.
200 Accordingly, the plaintiff’s application is dismissed.
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