Egger v Gallagher Bassett Services Workers Compensation Pty Ltd
[2013] VCC 2062
•18 December 2013
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-05940
| MATTHEW PAUL EGGER | Plaintiff |
| v | |
| GALLAGHER BASSETT SERVICES WORKERS COMPENSATION VIC PTY LTD - and – KEPPEL PRINCE ENGINEERING PTY LTD | First Defendant Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 11 December 2013 | |
DATE OF JUDGMENT: | 18 December 2013 | |
CASE MAY BE CITED AS: | Egger v Gallagher Bassett Services Workers Compensation Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2062 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Accident Compensation Act 1985 s134AB – application for leave to bring damages claim based on serious injury for pain and suffering damages only – soft tissue injuries to thoracic and lumbosacral spine – whether present pain and limitations and lumbosacral spine accident-related or whether Major Depressive Disorder of moderate degree sufficient to meet requirements of paragraph (c) of definition of “serious injury” in s134AB(37) Accident Compensation Act 1985 – late manifesting low back pain not accident-related – Major Depressive Disorder not constituting severe behavioural disturbance
Legislation Cited: Accident tCompensation Act 1985; Mobilio v Balliois [1998] 3 VR 833;
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave granted on the basis of organic injury to mid-back
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N R Bird with Mr I R Fehring | Drew Gleeson Legal |
| For the Defendant | Mr P E Elliott QC with Mr P B Jens | Lander & Rogers |
HIS HONOUR:
Background
1 Mr Egger was born in 1962 and is divorced with one adult son.
2 He attended Casterton High School until Form 5 (Year 11). He worked in a variety of labouring occupations, first in Melbourne, then on a farm near Casterton. He worked as a storeman and in sales and service for an organisation in Western Australia in the early 1990s, then moving to Alice Springs and working as a caravan caretaker and in the building industry.
3 In 1988, Mr Egger was involved in a motorcycle accident in Alice Springs, breaking his leg and needing six months to recover. In 1990 he moved to Victor Harbour in South Australia, working for a food supplement company and then in the restoration of limestone buildings. His son was born in 1992. His marriage broke up in 1996, and he moved back to the town of Casterton.
4 In 2002, he was employed by Keppel Prince Engineering, one of the defendants in this proceeding. He worked in a variety of roles, including drill operation and the fit out of wind towers. He worked at the Portland aluminium smelter for two years. He said he, “worked in rodding and as a hauler driver”. At a site in Darts Road, he was involved in the refit of wind tower. He needed a MIG welder for the main purpose of the work and had to move this unit 150 metres. According to Mr Egger, the unit weighed more than 100 kilograms and the ground it had to traverse was bumpy “with checker plate walkways and the like”. He said moving the unit “was a difficult and heavy task”. He had to move the unit alone and said that his employer had no particular guidelines or procedures relative to work like this. On completion of the work he had re-traverse the same ground.
5 According to Mr Egger, “my back felt uncomfortable. I tried to stretch it and keep it mobile to reduce my discomfort. I worked for the remainder of the week, expecting my back pain would resolve. I was experiencing a pinching feeling in my mid-back, which actually became more severe as the week progressed. The pain radiated around my chest”. Friday was a rostered day off which gave him a three day weekend, during which his pain eased, but when he returned to work on Monday, it returned. He reported the injury to his employer’s WorkCover officer. He then consulted his treating general practitioner, Dr Das, who certified him off work for some six weeks. He underwent an x-ray.
6 When he returned to work, he was assigned to “light duties”, initially marking lines in the workplace shop, and then he was asked to drive trucks. He said:
“Within approximately two weeks, I could not cope with the truck driving as it increased my pain and I was forced to cease work. It was at this point (that) I was referred to Mr Michael Johnson, orthopaedic surgeon.”
7 Mr Johnson recommended conservative treatment. He had physiotherapy with Mr David Walker in Portland and Mr Keith Fleming in Casterton, but apparently gained little relief. He then underwent treatment from an osteopath, Dr Michelle Sherriff. According to Mr Egger, “I felt this treatment aggravated my injury, so ceased it within a short time”. He then sought Bowen Therapy from a Ms Pauline Oliver-Snell in Hamilton. Over this period, Mr Egger underwent a series of radiological investigations including plain x-ray, CT scans and MRIs. He sought a new general practitioner and became a patient of Dr Wark of the Hamilton Medical Group.
8 Throughout this time he was receiving loss of earnings benefits and pain and like expenses from the relevant insurer under the Accident Compensation Act 1985. The insurer gave notice that these benefits would cease from 19 April 2007. According to Mr Egger:
“I sought legal advice. Court proceedings were issued and resolved. However, I found this very stressful. I thought the Insurer had turned its back on me. That I had been written off and dumped.”
9 The settling of the legal proceedings was reached at conciliation. As I understood Mr Egger’s evidence, the settlement entailed attendance at a pain management clinic and extension of loss of earnings benefits for a limited time, only.
10 Mr Egger said that he undertook a course for pain management with full commitment. When he was discharged from this process, consultant physician, Dr Damian Lewis, gave a very positive prognosis. Despite this, Keppel Prince Engineering declined to engage in a return to work process and terminated his employment.
11 Mr Egger continued his treatment with Dr Wark. He was referred for further opinion to orthopaedic surgeon, Mr Roy Carey, who, once again, advocated conservative treatment. Mr Egger said, “Throughout this entire period, I continued to suffer from significant daily thoracic pain. In addition, I suffered regular lower back pain which radiated to my legs. My condition was exacerbated by sudden movement or twisting. The thoracic pain radiated to the front of my body, at the level of my sternum. It was daily”.
12 In 2008 Mr Egger moved to Melbourne and worked for a construction company for about three months. He said his pain increased and he could not continue. He said, “I abused alcohol in an attempt to gain relief from the pain, to enable me to continue working. I was unable to”. He returned to Casterton, feeling despondent. He then attended Casterton Hospital for drug and alcohol counselling.
13 Dr Wark continues to prescribe Panadeine Forte for his pain and anti-depressant Mirtazapine. He commenced this treatment in September or October 2011.
14 From about November 2011, Mr Egger obtained casual employment from Glenelg Shire Council, the local authority for the Casterton area, as a plant operator. He received extensions of temporary employment in August 2012 and December 2012. He last worked for the council in March of this year.
15 His work for the council entailed driving a tip truck as part of a crew involved in road maintenance. He worked a 36 hour week over four days commencing at 7am and ending at 5pm using a variety of items of plant and equipment, including chainsaw, drills and angle grinder. Mr Egger says that by the end of the four days of work he was exhausted and needed the three day weekend to recover. He said he found the vibration and bumping in the truck cabin particularly painful for his back. Mr Egger said that he tried to avoid using vibrating tools, such as the whacker packer or the jackhammer but could not entirely avoid their use. These tools, he said, increased his pain. When he returned home after a hard day’s work he would take his dog for a one kilometre walk. Mr Egger said that sometimes he feels his “back is out and my ribs are poking out through my chest”. He said anything can set this pain off “such as regaining my footing after a slip, twisting quickly, working above my head, drying my back with a towel …”. He said he sometimes obtains relief by hanging off a bar and stretching.
16 Mr Egger says that his social life is limited to his brothers and his son. He said:
“I feel low most of the time, and tend to be negative in my outlook on life because of the ongoing pain. I feel hopeless and helpless. My interest and enjoyment of things has decreased markedly. I remain very concerned about my future. My libido has decreased. My sleep is troubled by the pain. I have rarely had a full night’s sleep since the time of the injury.”
17 He says his sleep is still affected. According to his affidavit sworn last year, “I am often distressed by my situation and because of the inability to identify an anatomical reason for my pain …”.
The present proceeding
18 Mr Egger seeks leave to bring a claim for damages in accordance with s134AB of the Accident Compensation Act 1985 on the basis that he has suffered a “serious injury” within the meaning of subs(37) of that Act. He relies on paragraph (a) of the relevant definition of serious injury, as well as paragraph (c). He says that his impaired body function is the “thoracolumbar spine” and the disturbance for the purposes of paragraph (c) is “depression”. If leave is granted, Mr Egger seeks damages for pain and suffering only. No claim is made for loss of earning capacity.
Legal considerations
19 Section 134AB of the Accident Compensation Act 1985 precludes a worker suffering injury in the course of employment from obtaining damages with respect to that injury, except in accordance with the provisions of the section. The section authorises the recovery of such damages “if the injury is a serious injury and arose on or after 20 October 1999” (subs(2)).
20 “Serious injury” is defined in subs(37) as follows:
“(a)permanent serious long-term impairment or loss of a body function; or
(b)permanent serious disfigurement; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d)loss of a foetus.”
21 Sub-section (38) of the Act includes important additional provisions as to the operation of these principles. Paragraph (b) of subs(38) provides:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to –
(i)pain and suffering; or
(ii)loss of earning capacity –
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.”
22 Paragraphs (c) and (d) are also relevant, providing:
“(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
(d) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.”
23 Also relevant are paragraphs (h) and (i):
“(h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.”
24 It will be seen that these provisions to some extent codify what had previously existed as a matter of case law; for instance, what was to be regarded as “serious” for injury purposes, as considered by the majority joint judgment of the Full Court of the Supreme Court in Humphries & Anor v Poljak [1992] 2 VR 129 at 140. The interaction between paragraphs (a), dealing with organic injuries, and paragraph (c), dealing with psychiatric injuries in the definition of “serious injury”, is also codified. The effect inter alia is that pain and restrictions relative to a bodily function may be considered for the purposes of paragraph (a) of the definition of serious injury only if they are organically driven. If they are functionally driven, that is by non-organic or psychological or psychosocial processes, then they may be considered for the purposes of establishing a behavioural disturbance within the meaning of paragraph (c) of the definition, but not for the purposes of establishing an impairment or loss of a bodily function in accordance with paragraph (a).
Expert opinions
25 It will be recalled that Dr Das provided the initial medical treatment for Mr Egger. By letter, dated 7 May 2007, he reported to Mr Egger’s solicitor that, following Mr Egger’s exertions moving a welding machine between two workshops 100 metres distant from one another, he was found to suffer an aching thoraco-lumbar spine “which persisted all week”. The doctor recorded that on 26 January 2006 he saw Mr Egger, finding him tender “over the thoraco-lumbar spine”, there was no muscle wasting with straight leg raising 90 degrees for right and left lower limbs. A CT scan was carried out on 15 February 2006 of his “dorso-lumbar spine”. Mr Egger was certified off work until 6 March 2006 and prescribed analgesics and physiotherapy. Mr Egger returned to modified duties on 7 March 2006 with a persistence of symptoms. Dr Das ordered a MRI scan of the thoraco-lumbar spine and Mr Egger had further time off work from 9 March. He was referred to Mr Johnson for expert opinion. Mr Johnson suggested a bone scan and conservative treatment. According to Dr Das, a request to return to work by Mr Egger on modified duties with no excessive bending or lifting more than 12 kilograms or jarring to the back was rejected. Dr Das made a further referral to Mr Johnson in January 2007. Following another spinal MRI and bone scan, Mr Johnson reported to Dr Das that “there was no suggestion of any serious or sinister problems” and therefore no ground for surgical investigation. Dr Das mentioned the referral to Dr Lewis and the pain management course. He reported having last seen Mr Egger on 30 April 2007. A supplementary report to Mr Egger’s solicitors, dated 24 December 2007, recorded a last consultation with Mr Egger on 17 July 2007 when, according to Dr Das, “there was no change in the symptoms”.
26 Mr Johnson, the orthopaedic surgeon to whom Dr Das had referred Mr Egger, furnished a report to Mr Egger’s solicitors dated 10 May 2007. The original consultation was on 6 June 2007. According to Mr Johnson, Mr Egger complained of “continuous mid-thoracic back pain of variable intensity. He said he experienced two to three episodes of severe back pain per week which would last for a day or so. The symptoms tended to be more severe with heavier lifting and were relieved with rest”. Mr Johnson continued, “He localised his pain to the T6-T9 region of his back. There was no specific tenderness on light palpation. The range of thoraco-lumbar movement was 80 per cent of normal. Straight leg raising was full and there was no neurological abnormality in the lower limbs”. The referral to Mr Johnson from Dr Das had stated inter alia, “He has a multitude of symptoms beyond my comprehension …”. Mr Johnson seems to have been similarly bemused. He records, “I told Mr Egger I was uncertain of the anatomical cause of his pain. His investigations demonstrated multiple abnormalities and it was impossible to know which of these was of primary significance”. In referring to multiple abnormalities, Mr Johnson was not, it seems, suggesting that any very significant pathology had been identified. He records telling Mr Egger that the MRI “did not demonstrate major structural abnormality and it would therefore seem likely that [Mr Egger] had not done any terrible or serious damage”. Mr Johnson felt, as at the first consultation in June 2006, that Mr Egger’s symptoms “would gradually resolve over a number of months and … [felt that] we [could] generally be reasonably optimistic”. Mr Johnson suggested a consultation with Dr Lewis, a rheumatologist, with a special interest in back rehabilitation. Mr Johnson remained “uncertain of the cause of Mr Egger’s pain”. From the history he was inclined to regard it as related to the incident on 16 January 2006.
27 Ms Pauline Oliver-Snell, a naturopath and Bowen therapist and medical herbalist, in a report addressed “To whom it may concern”, and dated 25 July 2007, states, “Mr Egger first presented to me on 12/12/2006 with the following symptoms: chronic ongoing pain in the mid-thoracic and left sternal regions, which travelled down the whole of the left triceps brachii and into the forearm with numbness occurring in the fourth and fifth fingers”. Ms Oliver-Snell said she believed “that Matthew would not be capable of returning to his pre-injury duties at his place of employment [and would require] long-term pain management”. She advocated limited light duties not requiring lifting, shifting or supporting heaving objects. She said that Mr Egger obtained “short-term relief after each of the 12 “Bowen” treatments that I have given him”.
28 Mr Johnson referred Mr Egger to a rheumatologist, Dr Daniel Lewis, who had a number of consultations and examinations with Mr Egger from 27 February to 7 September 2007. The history taken by Dr Lewis was that Mr Egger –
“… complained of central thoracic spine pain in an area extending through the mid-thoracic spine. The pain was constant and all movement aggravated him. He could not lift or bend, had difficulty standing and was now no longer relieved with rest. He was most comfortable when he was walking.”
29 Dr Lewis noted the pain management course undertaken by Mr Egger in 2007 which entailed inpatient treatment at Epworth Rehabilitation Hospital in Camberwell. Dr Lewis said, “During this time he had improved substantially”, and he was “stronger and fitter. He had regained the physical function to return to work”. He said that his depression had been lifted and he understood the issues he was confronting. He noted that psychiatrist Dr Natalie Krapivensky had treated him and increased his anti-depressant dose. Dr Lewis said at this stage Mr Egger had a full range of movement and good upper limb strength and was “quite capable of returning to a wide range of work activity”, and he had previously been involved with the Commonwealth Rehabilitation Service. On 7 September, after completing the Epworth Program, Dr Lewis found that Mr Egger “continued to make remarkable progress. He had continued all the strategies that were taught to him at Epworth”. He continued, “Functionally he was now at a very high level and he was certainly ready to return to a wide range of work activities. He no longer had any referred pain, although if he moves in awkward ways he can have a temporary recurrence of pain”. Dr Lewis recorded Mr Egger as having told him that he had undertaken a lot of gardening and had planted some seedlings and “physically he felt that he was ready to move to the next stage. He had been very moderate with regard to his alcohol consumption and generally felt well. Most importantly he felt in control of his life”. The concluding opinion expressed by Dr Lewis was that Mr Egger “developed a soft tissue injury to the lumbar spine that developed into a chronic pain syndrome”. He continued, however, that Mr Egger had recovered and the last time he saw him “his prognosis was excellent”.
30 Dr Wark, it will be recalled, took over from Dr Das as Mr Egger’s treating general practitioner. He provided some three reports to Mr Egger’s solicitors. In the first of those reports, dated 20 May 2008, Dr Wark recorded his first consultation with Mr Egger as having taken place on 21 March 2007 at which Mr Egger complained of “significant pain in the lower thoracic spine, which was exacerbated by twisting and sudden movement, for example – when he was going to pick something up or even hitting a bump in the road while driving”. Mr Egger complained that this pain was referred to his chest at the level of the sternum “and it tends to go right through him from back to front”. Mr Egger said that he received some relief from pain “by hanging off a bar and stretching”. Mr Egger wanted a second opinion from another orthopaedic surgeon and Dr Wark made a referral to Mr Roy Carey. He described a report from Mr Carey, who advocated a continuation of conservative treatment, Dr Wark concluded his report by saying:
“It is now well over two years since the injury which has led to continuing pain in his lower thoracic region. On several occasions he has attempted to go back to rouseabout type work and shearing sheds, but this has exacerbated his pain after a period. Consequently, it seems to me that it is very unlikely that he will be able to go back to any physical work in the foreseeable future. I believe that he will have to be retrained in a more sedentary type of activity.”
31 Dr Wark provided an update to the solicitors dated 28 February 2013. The doctor said that since his earlier report Mr Egger had continued to attend his clinic on about a dozen occasions and “(t)hroughout that time he has continued to have thoracic pain and associated emotional and psychological problems”. He noted that in July 2010 Mr Egger “stated that the lower thoracic pain was ongoing, it was worse than the cold, he had disturbed sleep, the pain interfered with his sex life, and that was a big concern to him”. Heavy smoking and the use of alcohol as an analgesic was a concern. In August 2010 Mr Egger was “troubled by a stabbing pain in the left axilla region, especially if he rolled over during the night. Twisting his back stirred up the pain”. In October 2010 he said that Mr Egger saw a drug and alcohol counsellor and in August 2011 told the doctor that he had ceased drinking alcohol, that back and sleep were “giving him hell, needing stronger pain relief” and he continued to suffer from anxiety and depression.
32 As at May 2012, according to Dr Wark, Mr Egger was using Panadeine Forte, was working for the Shire of Glenelg driving machinery and “(t)his limited work made him feel exhausted by the weekend”. In October 2012 and January 2013 the doctor felt Mr Egger “was clearly attempting to put a brave face on his back pain and that was helped by his limited work as a plant operator at that time”. The doctor recorded that during the whole period that Mr Egger had been a patient at his clinic, he had “exhibited anxiety and depression. On numerous occasions he has attended and has been weepy and frustrated as a consequence of his not being able to do the work, which he had previously done”. The doctor felt that Mr Egger was a genuinely work-orientated man and “the lack of work and inability to work caused him tremendous emotional and depressive symptoms”. The doctor said Mr Egger battled on, and his impression was that “Matthew was a work-related man and his frustration is genuine. He is not a bludger”. In a final update, dated 23 October this year, Dr Wark recorded four further attendances by Mr Egger at his clinic. Mr Egger continued to require medication, both anti-inflammatory for his back pain and to lift his mood and help him sleep. The doctor recorded “in September 2013 he described to Dr Tai low back pain…She said that he felt flat and negative, had disrupted sleep”. When Dr Wark, himself, last saw Mr Egger on 9 October 2013, “he had left leg pain with sitting, such as sitting in a motorcar or on the toilet. The pain seemed to improve with walking and being [a] little active”. Mr Egger continued to use painkillers, namely Panadeine Forte and anti-depressants. Dr Wark continues, “He battles on and tries to keep active, but the pain with activity and sitting tends to wear him down. At his last visit we were considering referral to a pain management consultant”.
33 On 11 January this year Mr Egger attended Mr F S Schofield, consultant orthopaedic surgeon, for medico-legal assessment at the request of his solicitors.
34 Under the heading “Present Situation” Mr Schofield recorded:
“The patient said that he has mid-thoracic pain which is aggravated with any rotation and is more severe when rotating to the left more than the right. The pain is intermittent and not always present. However, he can wake with pain at night. He has noted that in the last six months in the hot weather, he has had an itchiness of the skin of the chest wall.”
35 On examination, Mr Schofield observed that Mr Egger “pointed to the mid-thoracic spine as the area of complaint”. “I noted that he had a mild thoracic kyphosis.” Mr Schofield recorded a good range of movement in the lumbar spine and flexion extension rotation and lateral flexion, and straight leg raising of 90 degrees bilaterally. “Neurological examination revealed that he had minimal reflexes in both knee and ankle jerks. His thoracic reflexes were normal around the umbilicus.” Mr Schofield referred to a chest x-ray conducted in August 2003, that is, before the accident the subject of this proceeding, which “reported a mild kyphosis and slight wedging of the mid-dorsal vertebrae with osteoporosis being a possibility”. Mr Schofield referred to an x-ray of the thoracic and lumbar spine and pelvis in January 2006 reporting a mild thoracic scoliosis convexed to the left and “mild anterior wedging of T5 and T7 of unknown origin which may be Scheuermann’s disease. X-ray of the lumbar spine reported multi-level osteophytic lipping and narrowing of the lower two lumbar discs”. He referred to a finding made by the Medical Panel under the terms of the Accident Compensation Act recording that Mr Egger was “suffering from dysfunction of the thoracic spine which was persisting with referred symptoms into the chest wall but with no evidence of neurological deficit or radiculopathy or residual dysfunction of the lumbar spine”. In his opinion Mr Schofield recorded that:
“[Mr Egger] suffered injury to the thoraco-lumbar spine eventually causing aggravation of degenerative change more in the thoracic and lumbar spine region. As a result of the injury, he is restricted in his physical capacity but is able to work doing restricted hours and restricted physical stress. Despite degenerative changes being noted in the lower lumbar spine, he has a good range of movement of the spine with normal straight leg raising and neurological examination was normal”.
36 Mr Schofield noted incidentally, his belief that Mr Egger had ulnar neuritis affecting both hands. Mr Schofield carried out a further examination on September 2013 at the request of Mr Egger’s solicitors. He recorded “some wasting of the muscles of the left buttock” and noted “straight leg raising on the left was to 40 degrees only, 70 degrees on the right, he had normal power in the lower limbs, absence of both ankle jerks and only minimal knee reflexes”. Mr Schofield noted that he arranged a MRI scan of the thoracic spine which was –
“… reported on 17 September 2013. The conclusion reached was one in which there was evidence of multi-level degenerative change in mid and upper thoracic spine and lower lumbar spine where there was a small left paracentral disc protrusion at the lumbosacral level with minor displacement of the left S1 nerve. There was also minor wedging from T2-T6 vertebral bodies but with no evidence of any soft tissue abnormality in the discs causing a mass in the spinal canal.”
37 Mr Schofield commented that this scan was –
“… consistent with your client’s restricted straight leg raising on the left to 40 degrees and also consistent with absence of both ankle jerks, which are likely to have occurred as a result of chronic degenerative change affecting the lumbosacral disc and the development of a left-sided protrusion causing symptoms down the left leg to the left foot.”
38 He continued:
“What is unusual however is that your client’s major area of continuing pain is postural and due more likely than not to the upper thoracic kyphosis and wedging of the vertebrae.”
39 Under the heading of `Opinion’ Mr Schofield said:
“The major symptoms complained about at the time of my original examination were in the mid-thoracic region with my clinical examination demonstrating a thoracic kyphosis with pain on rotation, a normal range of lumbar spine movement with normal straight leg raising but minimal reflexes in the lower limbs.
My current examination has shown evidence of thoracic pain continuing and an increasing pain in the back and left leg with MRI scan now showing evidence of a prolapse at the lumbosacral level where there is evidence of radiculopathy affecting the left leg.”
40 These changes, he said, were accounted for because –
“… it is likely that the extra stresses on the lumbar spine occurred as a result of the postural changes in the thoracic spine demanding a greater degree of spinal extension even working in the erect position which will likely cause aggravation of degenerative changes in the lower lumbar region.
41 Mr Egger, he said, was fit for light duties but would not be able to return to his previous occupation as a welder. He said the disc prolapse at the lumbosacral level “may eventually require surgery to decompress and stabilise the lumbosacral disc. It is quite clear that his current radiculopathy, his view to the lumbosacral pathology”. Mr Schofield concluded that the low back pain was work-related but osteoporosis which he observed was unlikely to be work-related.
42 Mr Egger’s solicitors sent him to consultant psychiatrist, Dr David Weissman, for a medico-legal assessment as to psychiatric issues on 9 April of this year. Dr Weissman concluded that Mr Egger had “moderate mixed reactive depressive and anxiety symptoms, themes and features, with worries and frustration”. He diagnosed a “chronic Major Depressive Disorder of moderate intensity or severity”. In Dr Weissman’s view Mr Egger’s prognosis was “only fair”. He described his diagnosis as representing “a moderate group of accident-related psychiatric conditions or mental injuries”. The doctor believed that Mr Egger required ongoing supportive therapy from his general practitioner and perhaps increased anti-depressant medication. He quoted the same passage from the Medical Panel observing that the Panel did not diagnose a pain disorder or pain syndrome. Dr Weissman did not believe that Mr Egger was suffering from a chronic pain disorder. It is a psychiatric condition generating symptoms popularly known as “functional overlay”. Dr Weissman noted the work which Mr Egger had been undertaking for Glenelg Shire Council and observed, “On purely psychiatric grounds alone, therefore, there is most probably no psychiatric incapacity for work”.
43 On 14 February 2006, that is a bare four weeks after the injury, Mr Egger was assessed for medico-legal purposes by a surgeon, Mr Michael Troy, at the request of the WorkCover insurer. Under the heading “Present Complaints”, Mr Troy notes, “He really is not improving”. He recorded, “[He, that is Mr Egger] was flown up by plane from Portland for this interview, that was a fifty-five minute trip, and he felt that was quite comfortable as the plane kept moving. He states normally he can sit only for a short time”. Mr Troy, like nearly all other examiners, with the exception of Mr Schofield at his second examination, found 90 degrees, that is full capacity for straight leg raising. He also noted that Mr Egger was able to sit on the edge of the couch “and demonstrate a normal slump test, that is hips at 90 degrees, knees extended independently, without any symptoms”. Mr Troy noted that Mr Egger –
“… had forward flexion to 60 degrees – when he had general pain in his lower back, particularly over the facet joints at L3-4. He had no extension at all, 10 degrees rotation in either direction – which caused him pain over the left facet joints again, and lateral flexion to the right at 20 degrees and to the left at 10 degrees”.
44 Mr Troy concluded a diagnosis of “age-related degenerative changes existing at L4-5 and L5-S1, aggravated by the nature of a work incident on 16 January 2006”. Mr Troy expected that Mr Egger would become asymptomatic in six to eight weeks.
45 Mr Egger attended Mr Paul Kierce, orthopaedic surgeon, for assessment on 24 November 2006, that is, almost a year after the original incident. Mr Kierce noted that given the pain diagram, Mr Egger “indicated that his major pain was occurring in the interscapular area of his spine and at the area between the thoracic spine and the lumbar spine”. Mr Kierce believed that Mr Egger was fit for his pre-accident duties and was not suffering any incapacity for work. Mr Michael Shannon, surgeon, assessed Mr Egger for medico-legal purposes at the request of the insurer on 2 April 2012, that is, over six years after the relevant incident. Mr Shannon recorded Mr Egger as saying, “His ongoing problem is in the thoracic spine, although he does have a bit of low back pain when leaning over. … However, he emphasises that his ongoing problem is in the interscapular region”. Referring to a MRI scan, conducted in May 2006, Mr Shannon observed, “In the lumbar spine, he has mild degenerative changes, particularly at L4-5 and L5-S1, but no focal disc prolapse”. According to Mr Shannon, multiple subsequent MRIs showed “no significant disc protrusion”. He concluded that Mr Egger was “suffering from mechanical back pain in the thoracic region, the onset of which was precipitated by a twisting injury whilst dragging a welder”. He noted that the pain had persisted with fluctuations over a period of six years. Mr Shannon found an impairment of the thoracic spine, which, on his judgment, put Mr Egger in DRE Thoraco-lumbar Category II, Table 70, for the purposes of the AMA Guides, that is, a permanent impairment of some five per cent of the whole person.
46 Dr Entwisle, a consultant psychiatrist, reported to the WorkCover insurer in a letter of 5 April 2012 on a medico-legal assessment which he carried out on Mr Egger, “In respect to a WorkCover claim”, Dr Entwisle said that he saw Mr Egger “at my rooms on 2 April 1992”. This must be a misprint. I think the consultation must have been intended to be recorded as having incurred on 2 April 2012, since Dr Entwistle refers to Mr Egger as a “49 year old”. Dr Entwisle records Mr Egger as having told him that he believed “his depressive symptoms have decreased by 50 per cent. He is now able to work. He seems to manage his pain a bit better”. Dr Entwisle observed that Mr Egger seemed preoccupied with low energy levels, “His total focus was pain”.
47 Under the heading “Diagnosis” Dr Entwisle said:
“Mr Egger presents with a major depressive illness in partial remission with treatment. His major depressive illness occurs in the context of chronic pain which, based on Mr Egger’s account, follows from his work at Keppel Prince Engineering subsequent to alleged back injury 16 January 2006.”
48 Given the work that Mr Egger had been carrying out for the Glenelg Shire, according to Dr Entwisle, he “would be regarded as having a capacity for employment”.
Conclusions
49 I deal initially with the contention that Mr Egger exhibits a severe behavioural disturbance so as to meet the requirements of paragraph (c) of the definition of serious injury.
50 In seeking to show that the behavioural disturbance is “severe”, the plaintiff undertakes a significantly heavier burden under paragraph (c) than he does under paragraph (a) which requires a finding of a “serious” impairment. See Mobilio v Balliotis [1998] 3 VR 833 at 846 per Brooking JA.
51 Mr Bird and Mr Fehring, who appeared for the plaintiff, relied on the opinion of Dr Weissman quoted above. They noted a similar finding by Dr Entwisle, who examined and assessed on behalf of the defendant.
52 It is to be noted that Dr Weissman, in finding a major depressive disorder and thereby, as I understand it, adopting terminology derived from an American diagnostic manual widely used in psychiatry, nevertheless put the disorder which he diagnosed as being at the “moderate” level. Although I was not referred to the relevant manual, it is common practice to set the severity of disorders or other negative on a sliding scale ranging from “slight” or “minor” and ranging up to “severe”. “Moderate” is customarily used as a mid-point, more than slight or minor but not at the severe level. There is nothing in the report of Dr Entwisle which would advance the finding of Mr Egger’s major depressive disorder beyond the moderate level at which it has been put by Dr Weissman. Such a finding might be thought to be inherently incapable of meeting the statutory criterion of severity required by paragraph (c) of the definition. Beyond what might be thought to be mere matters of terminology, the same conclusion should be reached by reference to the substance on which the diagnosis made by the assessing psychiatrists has been made. Mr Egger has shown himself able to return to employment with the Glenelg Shire Council. He said that he would accept further work from the council and believed himself fit to do it. The problem now is that no employment has been offered to him. Again, albeit with difficulty for a one year period when he was resident in Melbourne in the period 2008 to 2009, Mr Egger undertook work for a labour hire company. He was able to do that work when it was based at the Melbourne Zoo campus in Parkville. He was resident in Pascoe Vale. He was, however, unable to meet the requirements of travelling by public transport from Pascoe Vale to the Clayton campus of Monash University where the next job that he was required to work on was located. He told me that he had to take a tram, then a train, and then a bus, which added hours to his working day. Both psychiatrists correctly observed that Mr Egger’s psychiatric problems, however characterised, did not prevent him from engaging in employment. Again, whilst there has been complaint of a very limited social life for Mr Egger, he continues to maintain relations with his son and other members of his family and socialises regularly at the local football club. He has a long term relationship with a woman, albeit that they do not reside in the same household. I accept that the situation, through which to use the words of Dr Wark, Mr Egger has been “battling on” since 2006, has taken a significant psychiatric toll upon him. Nevertheless, his disorder does not, in my view, exhibit the severity that paragraph (c) of the definition of serious injury in the Accident Compensation Act s134AB(37) requires.
53 Insofar as this application for leave relies on paragraph (c) of the definition of serious injury, it fails.
54 Much more difficult issues attend the application or non-application of paragraph (a) of the definition. I accept the submission put by Mr Bird and Mr Fehring, on behalf of the plaintiff, that all evidence indicates an organic injury suffered by Mr Egger. An initial question arises, however, as to whether the entirety of the presentation by way of physical injury which now exists can be regarded as accident-related. The point is eloquently made by a comparison of the two medico-legal assessments both made this year by surgeon, Mr Schofield. In the first assessment, attention focuses upon the mid-back in the thoracic regions with reference to the phenomena of kyphosis and wedging. Correspondingly, little or nothing is said as to impairment of the thoraco-lumbar spine and no limitation was found in Mr Egger’s straight leg raising, a finding which accords with the finding made by numerous examiners from 2006 to 2013. Mr Schofield’s second assessment finds straight leg raising drastically reduced on the left side to no more than 40 degrees. In addition, in contrast to earlier CT scans and MRIs of the thoraco-lumbar spine which disclosed multilevel degeneration, an unremarkable finding in a manual worker 45 years and over, the MRI conducted of this region at Mr Schofield’s request demonstrated a small left paracentral disc protrusion at the lumbosacral level with minor displacement of the left S1 nerve. This has led Mr Schofield to make a finding of disc prolapse and radiculopathy. It accords with complaints recorded by Mr Schofield and by Dr Wark in the most recent general practitioner consultations of referred pain in the left leg. The onset of these serious low back pain and restrictions seems to be as late as this year. Mr Schofield’s findings were consistent with my own observations of Mr Egger. He impressed me as a genuine plaintiff. He was in obvious discomfort from low back pain finding it difficult to remain seated either in the witness box or when observing the balance of the proceeding from the rear of the courtroom. His manifestations of discomfort were, in my view, genuine and not a histrionic performance. The question is, having regard to the late onset of these matters, can they be regarded as accident-related?
55 The submissions in this respect by counsel for the plaintiff were perhaps to some degree inconsistent. When I raised the late appearance of the low back problems with Mr Bird in the course of his opening, he said that it was the plaintiff’s case that these low back problems, albeit of late manifestation, were the result of a process ineluctably set in train by the 2006 injury. This might be thought to be consistent with the analysis to be found in Mr Schofield’s second report which I have quoted above. In closing, however, Mr Bird drew attention to a number of references to lumbar pain and phenomena in observations made early in the unfolding of the unhappy history of Mr Egger’s back problem.
56 I accept that there were complaints of low back pain made from time to time to examiners and treaters over the years. Nevertheless, the overwhelming emphasis, which is evident from the observations and complaints, which I have recorded above, before 2013, was upon the interscapular region and the lower portions of the thoracic spine. That something very significant has happened as recently as this year (between the January examination and the September MRI) is to be found in the striking deterioration in Mr Egger’s capacity for straight leg raising, which until 2013 was found by all examiners to be to the full range of 90 degrees. For these reasons, it is necessary to regard the present low back problems exhibited by Mr Egger as having manifested themselves only in 2013, that is, some seven years after the initial accident. The only manner in which the low back pain, as now exhibited, could be regarded as accident-related is the one advanced by Mr Bird in opening the case and by Mr Schofield. Mr Schofield said the low back problems were the result of “extra stresses on the lumbar spine [occurring] as a result of the postural changes in the thoracic spine …”. Since no defendant’s expert has carried out an assessment of the plaintiff after the second Schofield report, nor been called upon to comment on Mr Schofield’s reason, I am without expert assistance on that subject other than the opinion of Mr Schofield himself. With some hesitation, it seems to me that I cannot accept Mr Schofield’s hypothesis on this subject. It was not suggested, as I understood it, that the thoracic kyphosis observed by all examiners dated from the 2006 accident, rather the suggestion was that it was asymptomatic until the soft tissue injury sustained in January 2006 made it symptomatic. I accept that rendering this kyphosis as symptomatic had the capacity to create new problems elsewhere in the spine, or accelerate the progress of natural degeneration elsewhere in the spine. Had the low back problems manifested themselves later in 2006, 2007, 2008 or even in 2009, the interpretation of events advocated by Mr Schofield might be accepted as plausible and accepted on the balance of probabilities. After the lapse of some seven years, however, it seems to me to be in the realm of the speculative. I do not accept the plaintiff’s present low back problems as accident-related.
57 It follows that the success or otherwise of the application for leave to bring a damages claim in reliance on paragraph (a) of the definition, must be judged solely by reference to the mid-back problems which were the focus of complaint until this year.
58 The plaintiff’s case is that he has been effectively disabled in his social, personal and employment life since the events of January 2006.
59 Mr Elliott QC and Mr Jens, who appeared for the defendant, however, submitted that Mr Egger’s physical impairments organically caused were far less severe than the plaintiff’s case would have it. Mr Elliott QC said this was a “range” case.
60 He and Mr Jens drew attention to an employment which Mr Egger had been able to engage in for the labour hire company in Melbourne in 2008/2009 and, more recently, for the Glenelg Shire Council. He directed me to the very positive prognosis given by Dr Lewis following Mr Egger’s completion of the pain management course and treatment at Epworth Rehabilitation Hospital in Camberwell in 2007. He referred to an answer given by Mr Egger in cross-examination in which he conceded that he had played, albeit for the most part on the interchange bench, a game for the reserve team of his local football club as recently as 2011. They referred to Mr Egger’s regular attendance for social purposes at the football club’s premises on Thursday nights and so forth. They did not, as I understand it, dispute that in the circumstances Mr Egger’s condition should be regarded as long term.
61 Mr Bird and Mr Fehring said that not too much should be made of Mr Egger’s demonstrated capacity for work. They said that, whilst in cross-examination a variety of different activities was touched on which might be regarded as constituting “heavy labouring”, particular matters such as, for instance, the use of a chainsaw to clear a fallen tree bough from one of the shire’s roads might be a relatively isolated incident and a misleading impression could therefore be given as to the total physical demands imposed by the work that was being done.
62 There was no credible evidence that whatever might have been the case in the past, this gentleman now suffers from some sort of functional injury by way of a chronic pain syndrome. Dr Lewis suggests that he did but concludes that that condition resolved as long ago as 2007. I have already quoted the very direct finding by Dr Weissman negativing such a finding.
63 In those circumstances, even excluding the problems arising from the late manifestation of low back pain and left leg radiculopathy, I believe there is just sufficient to meet the requirements of paragraph (a) of the definition of serious injury.
64 Mr Egger has demonstrated himself to be a stoic. This is certainly the judgement that his treating general practitioner, Dr Wark, has made of him. He, therefore, deserves all of the support for stoicism which the authorities say should be accorded.
65 Having regard to Mr Egger’s age and educational background, and work experience, the possibilities for him are significantly constrained. It is unrealistic to suppose that he has the option now, or had it in the past, of transforming his life, both socially and occupationally to a more cerebral level. The life which now presents itself to him is drastically constrained by the pain and limitations described above. His sleep is disturbed, a matter of very great importance in anyone’s life. He has been able to function in outdoor employment, only with difficulty. His exertions in this respect, however, assuming he is able to find further employment in the future, must necessarily limit what he can do recreationally. I accept his evidence that, having worked a four day week, he requires the weekends to recover from the physical strain to which outdoor work imposes upon him.
66 Leave is granted to commence proceedings for pain and suffering damages on the basis of satisfaction of paragraph (a) of the definition of “serious injury” in s134AB(37) of the Accident Compensation Act 1985.
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