Fernandez v Yarra Trams and Victorian WorkCover Authority
[2012] VCC 2015
•18 December 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03334
| JOSEPH FERNANDEZ | Plaintiff |
| v | |
| YARRA TRAMS | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2, 3 and 4, 14 and 15 November 2011 | |
DATE OF JUDGMENT: | 18 December 2012 (Revised) | |
CASE MAY BE CITED AS: | Fernandez v Yarra Trams and Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2015 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment of low back – impairment of right shoulder – impairment of cervical spine – psychiatric injury – whether or not consequences are “serious” or “severe”
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment:Leave is granted for pain and suffering and loss of earning capacity damages in respect of the lower back injury. The application in respect of the neck, right shoulder and psychiatric injury is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with Mr C B Thomson | Victorian Compensation Lawyers Pty Ltd |
| For the Defendants | Mr I D McDonald | Herbert Geer |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 30 July 2010. The plaintiff applies for leave pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant between 5 May 1997 and September 2005 (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages.
3 The following evidence was adduced or tendered during the hearing:
· The plaintiff gave evidence and was cross-examined over the three-day period.
· The plaintiff tendered the following documents:
- Exhibit A, a workplace assessment from Dr Middleton dated 17 November 2004;
- Exhibit B, undated return to work claim form from Dr Middleton;
- Exhibit C, a return to work letter from Dr Middleton dated 16 August 2005
- Exhibit D, an Allianz Insurance response to return to work program dated 3 August 2005;
- Exhibit E, a report from Dr Han to Dr Sison dated 15 June 2004;
- Exhibit F, a request for history of the plaintiff’s records from Dr Sison dated 14 September 2005;
- Exhibit G, a letter from Allianz to the plaintiff dated 7 August 2005; and
- Exhibit H, Plaintiff’s Court Book (“PCB”) pages 14 to 41 inclusive, 44 to 46 inclusive, 49 to 50, 53 to 55, 58 to 63, 64 to 170, 178 to 284, 291 to 299, 309 to 310, 337 to 347, 353 to 363. Defendants’ Court Book (“DCB”) pages 14 to 19, and 37 and 38.
·The defendants tendered the following documents:
- Exhibit 1, application for insurance cover dated 25 June 2003 signed by the plaintiff;
- Exhibit 2, chronology of the certificates granted to the plaintiff dated from 5 January 2004 to 21 September 2005;
- Exhibit 3, an extract from an NAB Flexi Account held in the name of Mr and Mrs Fernandez dated 31 August 2007;
- Exhibit 4, copy of an MRI scan conducted at the Austin Radiology.
- Exhibit 5, the Plaintiff’s Court Book pages 1 to 13, 47 to 48, 51 to 52, 56 to 57, 171 to 177, 285 to 290, 300 to 308, 311 to 336, 348 to 352. The Defendants’ Court Book pages 5 to 9, 10 to 13A, 20 to 36, 39 to 54;
- Exhibit 6, Mr Leung’s notes dated 23 June 2003 to 10 May 2006;
- Exhibit 7, Bridge Road clinical notes.
4 At the commencement of the application, Mr McDonald, on behalf of the defendants, stated that the issues for consideration from the defendants’ perspective were:
(a)the claimed injuries by the plaintiff at his work were subject to a timing issue; i.e., when did the injuries occur?
(b)the plaintiff was unable to aggregate the alleged injuries to his lower back, right shoulder, neck and psychiatric injury;
(c)the plaintiff was required to disentangle or exclude the psychiatric/psychological consequences which may be found under paragraph (c) of the definition of “serious injury”;
(d)that the plaintiff suffered from a prior psychiatric injury and, as such, the plaintiff had to satisfy the standard in relation to aggravation of his psychiatric injury during the course of his employment;
(e)the issue of causation in respect of the psychiatric injury, right shoulder injury and the neck injury related to an assault which occurred in October 2004;
(f)the plaintiff has not made any attempt to obtain employment since September of 2005 by either participating in return to work programs or trying to obtain work; and
(g)the plaintiff’s credit is in issue in that he exaggerates all his symptoms to the doctors and in his evidence.
5 The credit of the plaintiff was well and truly in direct issue in this application, which was made clear by the length and tenor of the cross-examination of the plaintiff by Mr McDonald, on behalf of the defendants, over the course of three days.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
8 I am required by s134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The plaintiff’s background
9 The plaintiff was born in December 1963. He is now forty-nine years old. He was born in the Philippines and came to Australia in 1990.[3] The plaintiff is a married man who is now separated from his wife. They have three children, aged twenty-six, twenty-four and twenty-two, all whom live with his wife.[4]
[3]PCB 14
[4]PCB 14
10 The plaintiff was educated in the Philippines for some five years post-secondary school. He has a university degree in science and electrical engineering.[5]
[5]PCB 15 and Transcript (“T”) 31
11 Prior to the plaintiff coming to Australia, he worked as a linesman-technician in the Philippines.[6] After arriving in Australia, the plaintiff obtained employment as a laser machine operator and process worker at Griffiths and Beerens, where he worked for some six years.[7] On 5 May 1997, the plaintiff commenced work at Yarra Trams. He was an electrical fitter or electrical mechanic. The plaintiff remained in that employment until he finally ceased employment in September of 2005.
[6]T31
[7]T31, 32
12 The plaintiff has not worked since September of 2005. The plaintiff claims that he has not worked since that time due to the injuries to his spine, including the neck, thoracic spine and lower back. He also says that he has psychiatric injury and a right shoulder injury as a result of the injuries he received at work.
Injury with the first defendant
13 In his affidavit dated 3 March 2010, the plaintiff set out the injuries he says he obtained during the course of his employment with the first defendant in the period 20 October 1999 to September 2005. He listed the injuries as follows:[8]
(a)Injury to the spine, including the thoracic and lumbar spine with referred pain to the cervical spine;
(b)injury to the right upper extremity, in particular the right shoulder;
(c)referred pain down from his right hip into his right leg; and
(d)a mental behavioural disturbance not limited to stress and anxiety.
[8]PCB 16
14 I will deal with each of these injuries during the course of the employment in turn.
(a) Psychiatric injury – severe mental or behavioural disturbance or disorder
15 The first one – psychiatric injury: In his affidavit dated 3 March 2010, the plaintiff stated:
“I also experience nightmares of me falling which I often wake from and then have significant trouble getting back to sleep because of the pain from my work injuries.”[9]
[9]PCB 21
16 I understood the plaintiff’s evidence in this regard to be a reference to his injury that resulted from a fall from a ladder at work on or about 23 July 2003.
17 The plaintiff was seen by Dr Toby Sacks, consultant psychiatrist, at the referral of Dr Lim, the pain specialist, since September 2007. In his report dated 28 February 2008, Dr Toby Sacks stated:
“He reports persistent symptoms of depression with poor concentration and memory and, while affirming his acceptance and understanding that the pain is incurable, continues to focus on ‘getting rid of this pain’ and going back to his own job.
…
Unfortunately Joseph’s prognosis is poor. He has little resilience and is, unfortunately, alexithymic, ie, unable to express or ventilate his emotions effectively other than with anger.
…
His depressed, demoralized mood and fixed/entrenched beliefs about pain and recovery undermines his acceptance of self-management as a strategy.”[10]
[10]PCB 212 and 213
18 The plaintiff was also treated by Dr Dinesh Parekh, consultant psychiatrist. In a report dated 24 August 2005, Dr Parekh noted that the plaintiff had also suffered another mishap in October 2004, which aggravated his back pain more.[11] This is a reference to an incident where the plaintiff was assaulted in a car park at a shopping centre. There were a number of reports from Dr Parekh contained within the Plaintiff’s Court Book and I have read them. In his report dated 27 May 2009, Dr Parekh examined the plaintiff and noted that there was no evidence of any thought disorder or any abnormal perceptual phenomena, and he seemed to have insight into his condition.[12] In Dr Parekh’s opinion in that report dated 27 May 2009, he stated as follows:
“From the diagnostic point of view he suffers from chronic depression with some hysterical overlay and having treatment for nearly 6 years and without any promising improvement I consider the prognosis poor.”[13]
[11]PCB 214
[12]PCB 234
[13]PCB 235
19 Dr Parekh’s opinion is that the plaintiff is depressed as a result of the chronic pain he suffers from his physical injuries.
20 Edward Cole, psychiatrist, in his report dated 16 June 2006, diagnosed the plaintiff as follows:
“Mr Fernandez is suffering from a chronic adjustment disorder with mixed anxiety and depressed mood. His condition is to be seen as stemming from the shock of the accident and from the effects of the injuries that he received in the accident. The subsequent assault also had the effect of aggravating his condition. His state of mind is such that he is more aware of and preoccupied by his pain and limitations than might otherwise be the case and I believe there to be an element of functional overlay, although there is no indication of conscious exaggeration of symptoms.”[14]
[14]PCB 346
21 Dr Michael Duke, psychiatrist, examined the plaintiff on behalf of the defendants. On 2 June 2010, he prepared a report. He diagnosed the plaintiff as follows:
“He is suffering from a pain disorder associated with psychological factors … . In my view, this is not work related. He also has a secondary adjustment disorder with mixed anxiety and depressed mood … . For this, he is attending a psychologist and getting antidepressants from his general practitioner.”[15]
[15]PCB 327
22 I conclude that the plaintiff’s psychological/psychiatric condition is not of the level of severity that is required to satisfy the test for “serious injury” under the Act. Further, based on all the psychiatric medical reports within the Defendants’ Court Book and the Plaintiff’s Court Book, it is clear that the plaintiff has a number of causal factors contributing to his psychological/psychiatric condition.
23 In his evidence, the plaintiff said that he had continued to see Dr Parekh, psychiatrist, up until he retired in 2008. He gave evidence that he had continued to see a psychologist, Ms Costa, from that time to the present. In the time between Dr Parekh’s retirement and the time of giving evidence, he had only seen the new psychiatrist, whose name he thought was Dr Sigg, on one occasion. The lack of psychiatric treatment is indicative of the situation that the plaintiff’s psychiatric condition is not severe.
24 I dismiss the plaintiff’s application for serious injury under the heading of “permanent severe mental or permanent severe behavioural disturbance or disorder”.
(b) Injury to the right shoulder and neck
25 The plaintiff, in his affidavit dated 3 March 2010, stated that on 8 December 2001, he was injured when he working within a confined space to remove a cover from a tram motor. This was in the course of his employment as an electrical mechanic. He stated that as he was attempting to remove the cover of the tram motor, he felt a sudden onset of pain to his lower back and also pain in his right shoulder.[16]
[16]PCB 16
26 The plaintiff, in the same affidavit, stated that on 23 July 2003, while at work, he fell when a ladder collapsed underneath him. He was in the process of repairing electrical conductors which were at the bottom of the tram. He said that when he fell, he fell onto his right side. He said he experienced pain in his lower back and into his legs, as well as his chest area.[17]
[17]PCB 17
27 The plaintiff attended Dr Murray Gee on that day immediately after the accident with the stepladder. His main complaint at that time was injury to the right chest wall region of his body. On the next day, 24 July 2003, the plaintiff attended Dr Gee again, this time complaining of right neck stiffness. By the time the plaintiff attended Dr Gee on 28 July 2003, he was complaining of tenderness and tightness in the right supraspinatus with rigid neck movement.[18]
[18]Exhibit 7
28 On 17 September 2004, on the referral of Dr Middleton, the plaintiff underwent an ultrasound of his right shoulder. The results of the ultrasound of the right shoulder were:
“The supraspinatus, infraspinatus and the subscapularis tendons insert normally into the humeral head.
The rotator cuff is of good thickness with no evidence of a tear or calcification.
The biceps tendon is normal.
The dynamic study shows normal movement of the supraspinatus tendon beneath the coraco-acromial ligament.”[19]
[19]PCB 66
29 The assault occurred shortly after the ultrasound to his right shoulder referred to above. He stated in his affidavit dated 25 March 2011, that as a result of this assault, his right shoulder was not hurt.[20] The plaintiff has subsequently had radiological examinations of his neck and right shoulder dated 22 November 2004 and 31 January 2011. Dr Sison had referred the plaintiff for an x‑ray of his cervical spine on 22 November 2004. The conclusion from the x‑ray report is that there was a minor lower cervical spondylosis.
[20]PCB 27
30 The most recent MRI scan of the right shoulder was performed on 31 January 2011. The conclusion in respect of that examination was as follows:
“1 Pulley mechanism destruction: subtle superior insertional subscapularis intrasubstance partial thickness tear and mild medial bicep herniation/subluxation.
2 Mild AC joint degeneration and subtle superior labral myxoid degeneration but no labral tear.”[21]
[21]PCB 72
31 This radiology shows a degenerative change between the ultrasound taken in September 2004 and the MRI scan conducted on 31 January 2011. In that period of time, the plaintiff has either been not working at all or alternatively, on light duties at his place of employment. The further degeneration in the right shoulder from the period of September 2005 until the present time is not due to any cause from his place of employment or during the course of his employment.
32 The plaintiff, during the course of his evidence, insisted that the pain and disability in his right shoulder was referred from his lower back. Dr Sison gave evidence in respect of his treatment of the plaintiff. In the course of his evidence, he stated as follows:
“A: I don’t think that the shoulder pain is coming from the lower back. The nerve distribution is not radial, you know. It can be just associated, but it’s not related to the shoulder because that’s already the distribution of the nerve - if there’s a problem with the neck or the cervical spine, probably that will also radiate to the shoulder, which is what we call referred pain.
Q: Yes?---
A: But the lower back, that’s a different - - -
Q: It goes the other way?---
A: The other way. It’s more on the buttocks, thigh and lower leg. That’s the distribution of that nerve referred pain.”[22]
[22]T203
33 The conclusion I draw from Dr Sison’s evidence is that there is no pain referred from the lower back up into the neck and right shoulder area of the plaintiff.
34 I dismiss the claim by the plaintiff in respect of a serious injury applicable to his neck and/or right shoulder.
(c) Injury to the lower back
35 The plaintiff seeks a serious injury certificate for injury to his lower back arising out of and in the course of his employment. In his affidavit dated 3 March 2010, the plaintiff sets out two discrete incidents in which he says his lower back was injured. The first incident is said to have occurred on 8 December 2001 when he was working for the first defendant and was positioned in a very confined space in an attempt to remove a cover from a tram motor. In his attempt to remove the motor cover by unscrewing the fixing screws, he felt the sudden onset of pain to his low back, which gradually became worse, radiating down his thighs.[23]
[23]PCB 16
36 On 23 July 2003, the plaintiff was working for Yarra Trams at the depot near Southbank. He was performing routine maintenance on the tram. In the process, he was standing on a two-step A-frame ladder to reach the electrical conductors which were located at the bottom of the tram, the tram being in an elevated position. In the process, the ladder collapsed underneath him and he fell to the floor. He was trying to avoid falling into a pit and twisted his body to his right. He landed on his right side.[24]
[24]PCB 17
37 In his Claim Form, the plaintiff clearly set out that his low back was injured in the incident on 8 December 2001.[25]
[25]PCB 44 and 45
38 The plaintiff, in respect of the second incident, filled out a Claim Form on the following day, 24 July 2003. In that Claim Form, he nominated the right side of his body as the injured body part.[26]
[26]PCB 53
39 Following the injury on 23 July 2003, the plaintiff attended at the Bridge Street Clinic in Port Melbourne. This is the industrial clinic for the employer. On his first visit, 23 July 2003, the plaintiff made no complaint of low back injury. On 24 July 2003, the plaintiff made no complaint to Dr Murray Gee about low-back injury. On 28 July 2003, the plaintiff was complaining of injury and pain in his lumbar spine area. He also was complaining of right shoulder pain. On 29 July 2003, the plaintiff told Dr Murray Gee that his right chest wall pain had resolved. He continued to have difficulty with his neck flexibility and pain. By 5 August 2003, Dr Murray Gee reported that the neck pain had resolved but that the back pain was “yo yo-ing” between the neck and back again. On 14 August 2003, the plaintiff attended the Bridge Street Clinic and was seen by Dr Milton Harris. Dr Harris is a new doctor for the plaintiff at this stage. He was then examined for low-back pain.[27]
[27]Exhibit 7
40 The plaintiff, immediately after the July 2003 incident, had initial pain and disability in his chest and neck and right shoulder area. However, by the time three weeks had elapsed, the pain that he was suffering was to his lower back. The defendants’ main contention in respect of this injury is that the plaintiff did not injure his back in the fall from the ladder. The secondary position for the defendants is that the plaintiff had previously had back injury and this incident was only a very mild aggravation.
41 I find that the plaintiff was able to resume his employment full time and at full capacity between December of 2001 and July of 2003. This is a clear indication that the plaintiff had recovered from his initial back injury in December 2001. The plaintiff set out clearly the manner and impact of the accident in cross-examination. The plaintiff’s description of the accident is consistent with his affidavit.[28]
[28]T70-71
42 I accept that the plaintiff has injured his lower back in the incident on 23 July 2003 where the ladder collapsed beneath him. The issue that remains to be determined is whether or not that injury is still persisting and whether or not it is a “serious” injury under the Act.
Medical treatment in respect of the low-back injury
43 The plaintiff was sent for radiological examinations.
44 On 24 January 2004, a CT scan of his lumbar sacral spine was performed. The conclusion of that examination was:
“1 Minimal L4/5 lumbar canal stenosis, secondary to a small central L4/5 disc prolapse on a background of a diffuse disc bulge.
2 Minimal L5/S1 lumbar canal stenosis, secondary to diffuse L5/S1 disc bulge and minimal facet joint osteoarthritis. ? bilateral S1 nerve root impingement. Correlation with MRI of lumbar spine is therefore recommended.”[29]
[29]PCB 64
45 The plaintiff was then sent on 8 June 2004 for an MRI scan of the lumbosacral spine. The finding of that examination was:
“No focal disc protrusion or neuro compressive lesion.”[30]
[30]PCB 65
46 On 7 May 2005, Dr Sison sent the plaintiff for a further CT scan of the lumbar spine. The examination revealed:
“There is a small posterior annular disc bulge at L4-5 but no neural compression is seen.”[31]
[31]PCB 69
47 In September 2005, the plaintiff changed his general practitioner to Dr Tan. Dr Tan sent the plaintiff for MRI scan of his lumbosacral spine on 26 September 2005. The report of that examination was:
“Normal MRI findings of the lumbosacral spine.
Mild anterior wedging of T12 thoracic vertebra.”[32]
[32]PCB 70
48 The most recent radiological examination of the plaintiff was conducted on 18 May 2007. On that day, an MRI scan of the lumbar spine was performed. This MRI scan was performed on the referral of Dr Terence Lim. The conclusion of that examination was as follows:
“Minimal degenerative disc changes at L4/5 and L5/S1, with no focal neural compression.”[33]
[33]PCB 71
49 The plaintiff has been treated by an extraordinary number of medical practitioners since his injury in July 2003. He has been seen by Mr Tiew Han, neurosurgeon; Dr Cesar Tan, general practitioner; Dr Julio Sison, general practitioner; Dr David Middleton, occupational and rehabilitation medical practitioner; Dr Terence Lim, pain specialist; Dr Richard Travers, rheumatologist; Mr Greg Malham, neurosurgeon; Dr Clayton Thomas, pain specialist; Dr Bruce Mitchell, pain specialist; Dr Peter Blombery, consultant physician, and other medical practitioners to do with his psychiatric state. I have read all of the medical reports tendered in this case on behalf of the plaintiff from those medical practitioners set out in Plaintiff’s Court Book.[34]
[34]Pages 74 through 236
50 The defendants required Dr Sison, general practitioner, for cross-examination in the course of this application for serious injury.
51 Dr Tan, general practitioner, prepared a report dated 6 December 2010. He stated that the low-back pain for the plaintiff started on 23 July 2003 when he fell from the ladder. Dr Tan sets out the reports of the radiological tests that have been referred to earlier in these reasons. He stated that on 8 September 2008, the plaintiff underwent a radio-frequency denervation neurotomy under the management of Mr Bruce Mitchell. Unfortunately, that procedure did not provide long-term relief from his pain in the back. Dr Tan reports that the plaintiff has lost half of his normal range of movement in his back as well as suffering from back pain with most physical activities. He noted that the plaintiff has a standing tolerance of 15 minutes and with sitting or driving the tolerance was approximately 30 minutes. Dr Tan notes that the plaintiff was continuing to have regular acupuncture for his lower back. This treatment was simply for maintenance in respect of the pain symptoms suffered by the plaintiff.[35]
[35]PCB pages 85 to 87
52 Dr Julio Sison was the plaintiff’s general practitioner. Dr Sison first saw the plaintiff in December of 2003. The plaintiff last consulted Dr Sison on 7 September 2005. He was then transferred to the care of Dr Cesar Tan. Dr Sison reported that the plaintiff’s main complaint was stiffness and pain in his lower back during the course of his treatment. He noted that the plaintiff’s symptoms varied in severity and that the plaintiff sometimes had difficulty getting up from bed and could not drive to work. In Dr Sison’s opinion, the plaintiff’s depressive state is secondary to his physical symptoms that he has problems coping with the day-to-day activities.[36]
[36]PCB page 104
53 In his evidence given during the course of the application, Dr Sison stated as follows:
“… my diagnosis there as you can see is a chronic low back pain with L4‑L5 lumbar canal stenosis and disc prolapse with diffuse L5-S1 disc bulge.”[37]
[37]T187
54 Dr Sison agreed that none of the medical practitioners who had seen the plaintiff recommended surgery to his back.[38] Dr Sison stated in his evidence that the plaintiff’s complaint of buttock and thigh pain was related to his lower back injury and he described that as “referred pain”.[39] At the time the plaintiff ceased being treated by Dr Sison, he was being certified fit for alternative duties at his work up to 7 hours a day. The plaintiff was expressing concern and inability to fulfil the full certified hours of fitness for work at that time.
[38]T190
[39]T205
55 In 2004, the plaintiff commenced attending on Dr David Middleton, occupational and rehabilitation medical practitioner. In his report dated 12 April 2011, Dr Middleton gave an extensive summary of the history of the treatment in respect of the plaintiff’s back, right shoulder and psychiatric difficulties. In Dr Middleton’s opinion, the plaintiff initially suffered a lumbar strain and subsequently a right shoulder and neck strain as a result of the fall when the steps he was utilising collapsed. This resulted in the development of core lumbar instability and right scapular instability with continued pain resulting in the development of a complex regional pain syndrome Type 1, without sympathetic augmentation. In Dr Middleton’s opinion, the lower back and right leg pains were a result of the aggravation of his underlying age-related degenerative disease. In his opinion, Dr Middleton thought that the injuries originated from the physical injuries of the fall that took place in July 2003.[40]
[40]PCB 129
56 Dr Middleton concluded as follows:
“What I would regard is the main injury dated 27 July 2003 when standing on the top of a two step ladder, which collapsed, causing him to fall in a rotated position causing the acute sharp low back pain overriding the underlying pain that existed from the previous injury. This also injured the right shoulder and strained the neck summating into the major ongoing symptoms.”[41]
[41]PCB 130
57 In 2006, the plaintiff was sent to Dr Clayton Thomas, on behalf of the defendants, for treatment. Dr Clayton Thomas had formed the view at that time that the plaintiff had developed a significant abnormal illness behaviour. In Dr Clayton Thomas’s opinion, the plaintiff was not able to participate in a rehabilitative program in view of the overall inactivity levels that he had explained to Dr Thomas.[42] In his latest report dated 24 April 2006, Dr Clayton Thomas was of the opinion that the plaintiff, at that time, was totally disabled. He was of the view that the plaintiff’s total incapacity would persist for some 18 months.[43]
[42]PCB 175
[43]PCB 177
58 Dr Peter Blombery had treated the plaintiff and he was of the opinion that the two accidents referred to above had rendered the plaintiff’s previously asymptomatic degenerative changes in the spine symptomatic. In Dr Blombery’s opinion, the plaintiff would have benefitted from an intravenous lignocaine ketamine infusion aimed at breaking the pain cycle in his lower back. The insurers for the defendants were not prepared to fund that treatment.[44]
[44]PCB 187
Expert medical opinion
59 The plaintiff was examined by Mr John Henderson, orthopaedic and general surgeon, for the purposes of this application by the plaintiff. In his report dated 2 June 2006, Mr Henderson noted as follows:
“It is interesting that your client does now have a measured unilateral muscle atrophy affecting his right lower, both above and below the knee, and the measured difference (1½ cm) below the knee is regarded as a significant sign of radiculopathy in the 5th Edition of the AMA Guides. … This suggests to me that your client has, indeed, has a significant S1 nerve root impingement of the right side, even though his ankle jerk on the right side is quite easily elicited.
…
In my opinion your client is now totally incapacity for his pre-injury/injuries (sic) electrical maintenance employment duties, on the grounds of his physical injuries he has sustained: his chronic low back strain injury condition which is associated now fairly classical right lower limb radiculopathy … .”[45]
[45]PCB 247-248
60 Dr Helen Sutcliffe, occupational physician, examined the plaintiff in June 2006. In her report dated the same day, Dr Sutcliffe noted that the difference in the circumference of the plaintiff’s right leg was 44 centimetres on the right, compared to 47 centimetres on the left. She concluded:
“Of note is the significant reduction of circumference of the right thigh musculature which is consistent with reduced use of the right lower limb as a result of pain.”[46]
[46]PCB 263
61 More recently, the plaintiff has been examined by Mr Michael Shannon, orthopaedic surgeon, on behalf of the defendants’ solicitors. The report dated 3 October 2011 contains his examination results and conclusions. Mr Shannon noted that there is a slight wasting of the right lower leg. He noted that the ankle reflexes are inactive. In Mr Shannon’s opinion, the plaintiff presented with chronic pain syndrome but not complex regional pain syndrome.
62 Mr Shannon concluded:
“In the sense that his employment would appear to have precipitated the subsequent sequence of events, and assuming that his presentation is genuine, then employment would be regarded as a significant contributing factor to his back condition.”[47]
[47]DCB 19
63 In an earlier report dated 4 February 2009, Mr Shannon had noted that there was no muscle wasting in the lower limb musculature. However, he did note that the thoracolumbar movements are limited by two-thirds and there is some spasm on lateral flexion. At the earlier assessment, Mr Shannon was of the opinion that the plaintiff was either unwilling or unable to cooperate with his full physical examination.
64 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff on behalf of the defendants’ solicitors. He prepared a report dated 11 April 2011. Mr Jones’ opinion was that the plaintiff was exaggerating his generalised body pain affecting the areas of the neck, back, right leg and right shoulder. Mr Jones was of the view that the ladder collapse incident (July 2003) may have caused minor aggravation of his back problem but any such aggravation should almost since have disappeared.[48]
[48]DCB 8
Credit of the plaintiff
65 The plaintiff gave evidence over three days. He gave evidence on 3 November, 4 November and 14 November 20011. He was extensively and intensively cross-examined by Mr McDonald, counsel on behalf of the defendants. In respect of the plaintiff’s credit, no stone was left unturned. I have had the opportunity of observing the plaintiff in the witness box while he gave his evidence. I find that on occasions, the plaintiff exaggerated his difficulties. However, taking into account, as I must, the whole of his evidence and the associated medical treatment that he has undergone for his lower back and associated injuries to his lower back, I accept he is a witness of truth.
66 Mr McDonald challenged the plaintiff’s credit on the basis that he had made a claim for crimes compensation as a result of the assault which occurred in October 2004. In his evidence, the plaintiff stated that he withdrew his claim at the VOCAT because he just did not feel like pursuing it any more.[49] He was challenged on the basis that the letter from his lawyers at that time stated that they were instructed to withdraw the crimes compensation claim because the plaintiff was in discussions with WorkCover for compensation. The letter of Harleys Lawyers dated 12 August 2005 appeared at Defendants’ Court Book page 40.
[49]T114
67 Mr McDonald also challenged the plaintiff’s credit on the basis that he had increased his temporary and permanent disability insurance cover of $40,000 to $200,000 in June of 2003. It is to be noted that this occurred just one month prior to the injury causing the back symptoms to the plaintiff. The plaintiff clearly said in his evidence that the insurers wrote to him asking if he wanted to increase his insurance cover. He simply accepted their offer to increase the cover.[50] Once the plaintiff was injured and was able to be in a position to prove his total and permanent disablement, he made a claim on that insurance policy. I do not accept that the plaintiff deliberately increased his insurance cover for total and permanent disablement prior to the accident with the underlying plan to make a claim on that policy. This is tantamount to suggesting that the plaintiff has deliberately fabricated or caused his own real accident on 23 July 2003. I reject that proposition or any underlying suggestion that it was possible.
[50]T64
68 There was a persistent theme of cross-examination that the plaintiff was a gambler. The plaintiff readily admitted that he went to play the pokies on occasion and had done so for a long period of time.[51] I do not accept that the plaintiff had a serious gambling problem and in any event it does not impact upon his credit.
[51]T134
69 In February of 2008, the plaintiff applied to become a disability pensioner. He was granted that application and has been a recipient of the disability support pension since that time. The plaintiff was challenged on the basis that he was continuing to work, not in paid employment but working repairing electrical appliances and machines. The plaintiff denied doing that work, saying that he had done that type of work in the Philippines in the past.
70 I note in the index of the Defendants’ Court Book that video surveillance was conducted of the plaintiff. Whilst the plaintiff was extensively cross-examined, he was not shown any video surveillance during the course of this application and I find that whatever was contained on the video surveillance films did not assist the defendants’ case.
71 In conclusion, on the plaintiff’s credibility, I accept that he on occasions exaggerates his symptoms and difficulties but overall accept that he was giving an honest account of what he is suffering from as a result of the injuries incurred at work and in particular 23 July 2003.
Consequences of the injuries for the plaintiff
72 I have read the affidavits of the plaintiff sworn on 3 March 2010, 25 March 2011 and 23 September 2011. I have considered the evidence the plaintiff has given in those affidavits. I have also heard the oral evidence given by the plaintiff over the course of three days and the extensive and intensive cross-examination by Mr McDonald on behalf of the defendants. I find that the plaintiff is a reasonably straightforward person who was somewhat preoccupied with his medical condition and the limitations of his physical capacities. I would not describe the person as one of stoical disposition. The plaintiff has continually sought treatment for his pain and symptoms from July 2003.
73 I have previously dealt with the symptoms complained of by the plaintiff in respect of his neck and right shoulder and his psychiatric/psychological difficulties.
74 The consequences that the plaintiff has suffered as a result of the injury to his lower back are as follows:
·The plaintiff has difficulties with interrupted sleep and his sleeping patterns. In his affidavit dated 3 March 2010, the plaintiff states:
“The pain from my back injury causes me trouble sleeping and I often wake up due to pain. I tend to pace around the house and take medication to prepare me to get back to sleep but this is not always effective.”[52]
[52]PCB 21, paragraph 43
In his last affidavit the plaintiff deposed that:
“I continue to experience difficulty with getting a restful night’s sleep due to my work injury. If I change position during the night this tends to aggravate my pain and I wake up in pain. I often feel drowsy and tired as I am not able to sleep through the night.”[53]
[53]PCB 36, paragraph 13
The plaintiff gave evidence that when he was attempting return to work via clerical duties, he still had difficulty with pain and sleep. He stated:
“Q: Going back to the time when you were put on the clerical duties and you were attempting to increase your hours, what do you recollect about that time, about the experience you had in going back to work on clerical duties?---
A: I find it very interesting to me because the company is very helpful but sometimes in the morning, I feel very tired and because of that pain that I have, I cannot even wake up very early to cover up this early start job. I'm enjoying it but the pain really stopped me doing it.
Q: Why were you not able to wake up early?---
A: Mostly, most of the night I have this nightmare before, me falling up in the ladder. Then the pain woke me up and it's very hard to get back for me to sleep.
Q: You're referring to the pain waking you up. Where were you feeling that pain?---
A: The pain in my lower back that radiates up to my middle part of the back and also the shoulder and the neck.
Q: What was the worst pain at that time?---
A: The very worst pain is in my lower back.”[54]
[54]T 274, L 2 to L20
I accept the plaintiff’s evidence in this regard and conclude that his sleeping patterns have been very considerably interrupted as a result of the pain in his lower back.
·The plaintiff complains that he is continually suffering from pain in his lower back with referral down his legs, particularly the right leg. The medical histories taken by the various doctors who have examined the plaintiff for treatment and/or examination by the defendants refer to the plaintiff’s preoccupation with his pain. Some of the doctors referred to it as an abnormal illness behaviour. In the course of his evidence over the three days, the plaintiff did show signs of grimacing and perhaps exaggerating the difficulty he was suffering from.
I accept that the plaintiff is suffering from considerable pain to his lower back area with referral down his right leg.
In his first affidavit dated 3 March 2010, the plaintiff sets out that he is experiencing constant but varied pain in his middle and lower back with referral down his right leg.[55] In his latest affidavit, the plaintiff deposes on 23 September 2011 that he continues to experience constant but varied pain in his lower back and right leg.[56] The assessment of pain is clearly a subjective matter. In this case, the plaintiff has consistently complained of pain to his many medical treaters and providers and has deposed to that condition in the witness box and in his affidavits.
[55]PCB 20, paragraph 38
[56]PCB 35
On balance, I accept the plaintiff’s evidence that he is suffering from very considerable pain to his lower back and with referral to his right leg and that this is a very serious consequence for him.
·The plaintiff has had a variety of medications to control his pain over the time since injury. In 2004, the plaintiff was taking as many as three to six Panadeine Forte tablets per week. That was then increased to two per day. At the same time he was taking Mobic.[57] The plaintiff is currently taking the medications of Effexor, three tables of 150 milligrams per day. In addition, he also take DiGesic, Lyrica and sleeping tablets, combined with Valium to assist in dealing with his level of pain.[58]
[57]T103
[58]PCB 267
Dr Tan, general practitioner, sets out the full list of medications the plaintiff is currently taking in his report dated 10 October 2011. These medications include Brufen and Effexor, together with DiGesic tablets for pain. It is clear that his current general practitioner is of the professional opinion that the plaintiff requires this medication to control his current pain levels. I accept that this need for constant and large amounts of medication is a very serious consequence for the plaintiff.
·The plaintiff continues to have ongoing medical treatment for his injury to the low back and referred pain down his right leg. The plaintiff continues to be prescribed and take medication as set out in the previous paragraph in these reasons. He visits and is treated by his general practitioner on a fortnightly basis according to his evidence. There is no suggestion that the plaintiff will benefit from any surgery and consequently that has not been explored. I find that the current medical treatment regime is one of maintenance so that the plaintiff can continue with his life with a minimum of symptoms from his injury.
·In his affidavits, the plaintiff deposed to having difficulties with driving tolerance, reduced to approximately 30 minutes. In his affidavits, the plaintiff deposes to needing to travel on public transport instead of driving a car as he can only do so for short distances.[59] I accept that the plaintiff has difficulty due to his injuries and that this limitation on his personal mobility is a significant consequence for him.
·The plaintiff deposed to and was cross-examined about the effect of these injuries on his activities of daily living. He has consistently reported to the medical practitioners, both examiners for the defendants and treaters for himself, that he has limitations in his ability to shower, dress himself or put on socks, or lace up his shoes. The plaintiff also complains of erectile dysfunction as a result of his back injury. I note that he has not had any specific treatment in that regard. He has also separated from his wife. The plaintiff stated that he can no longer run or jog or involve himself in any vigorous physical activity or exercise.
I accept that the plaintiff’s activities of daily living have been severely limited as a result of the injury to his lower back. These limitations on his current position are set out in the affidavit of his sister, Juliet Salantes, sworn on 12 November 2011. Ms Salantis was not cross-examined in this application. I accept that she has accurately described the limitations as follows:
“Since his work injury, I have observed that Joseph experiences difficulty with self-care. He often has problems dressing, particularly with long sleeved items and is generally unable to tie his shoe laces. Joseph tends to be dependent on me to help him dress and to prepare the bath and his medications for him.”[60]
I find that the limitation on his activities of daily living are a serious consequence for the plaintiff. The plaintiff’s evidence in the hearing was consistent with all of the affidavit material contained in the Court Book.
[59]PCB 30, paragraph 27
[60]PCB 41, paragraph 10
75 I conclude that when gathered together and considered as a whole, the consequences outlined above amount to what can be fairly described as being “more than significant” or “marked” and as being at least “very considerable” pain and suffering consequences for the plaintiff.
Loss of earning capacity
76 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, he must establish that:
(a) at the date of the hearing, the plaintiff has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b) after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
77 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
78 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
79 The defendants concede that the “without injury” earnings figure for the purposes of assessing the plaintiff loss of earning capacity is $58,342 per annum.[61]
[61]T346
80 At the time that the plaintiff ceased employment with the first defendant in September 2005, Dr David Middleton, occupational health and rehabilitation consultant, assessed the plaintiff’s capacity for work as follows:
“Mr Fernandez does not have the capacity to resume his pre injury duties, but does have the capacity to perform his current suitable duties being clerical and like and this should result in full time attendance at work in the near future. Subject to his response to the proposed pain management program from Dr Clayton Thomas and his successful completion of an exercise program it is reasonable to expect Mr Fernandez to be able to move towards resumption of modified normal duties. Although structurally there is no true indication to limit of full recovery in view of the prolonged history I believe the likelihood of this being achieved is unlikely. The current work restrictions I believe remain unchanged in that he needs to avoid repetitive bending, lifting, and twisting of the lumbar spine. He should also avoid work above shoulder height and a maximum effect weight of 5kgs. The work performed at this stage needs to be self-paced and rest breaks be available if increased pain the lower back especially occurs.”[62]
[62]PCB 116
81 The plaintiff ceased work in September 2005 and has not worked since that time. In February of 2008, Dr Tan certified the plaintiff as being suitable for a disability support pension.[63]
[63]T239
82 Dr Clayton Thomas prepared a report dated 24 April 2006 on behalf of the rehabilitation insurers. At that time, Dr Clayton Thomas was of the opinion the plaintiff was totally disabled. He described the plaintiff’s condition as a “ … significant low back problem. He has significant disability.” At that time, Dr Clayton Thomas was of the view that the plaintiff would be totally incapacitated for a period of some eighteen months. As I have noted, at the expiration of that period, his general practitioner certified him as being disabled to the extent of being eligible for the disability pension.[64]
[64]PCB 177
83 In his evidence during the application, the plaintiff stated that he really wanted to go back to his job, stating, “I love my work”.[65] It was a consistent theme throughout his affidavits and his evidence that the plaintiff wanted to return to work. However, he has been unable to attend any suitable rehabilitation process and treatment to facilitate his return to work.
[65]T238
84 In the time since ceasing work and having his employment terminated in September 2005, the plaintiff’s capacity to return to paid employment has deteriorated. The real issue in this application is how much of it is related to his physical disability relating to his lower back with an overlay of psychiatric reaction to that disability. I have stripped out the “abnormal illness behaviour” factor in assessing the plaintiff’s current capacity to engage in paid employment. The plaintiff has not tried to obtain alternative employment. The preponderance of the medical opinions tendered in this case support the proposition that the plaintiff cannot engage in employment.
85 Mr Michael Shannon, orthopaedic surgeon, who examined the plaintiff on behalf of the defendants, was of the view that the physical organic injuries identified were not significant. However, he said that the prognosis for the plaintiff was largely dependent upon the management of what he described as the “pain syndrome” that the plaintiff was suffering from.[66] I accept that the plaintiff has suffered physical injury to his back and as a result of that he suffers pain from that injury. Whilst the plaintiff has persistently stated that he would like to return to work, he has been unable to do so. His working capacity has been completely destroyed.
[66]DCB 19
86 In this case, I find that the plaintiff has satisfied me on the requisite standard that he has lost his earning capacity to the extent of 40 per cent reduction in his gross without injury earnings. In short, he cannot work at all due to his disability and this is the case for him into the foreseeable future.
87 After consideration of all of the evidence, I am of the view that this is a finely balanced case but ultimately take into account all the consequences suffered by the plaintiff as a result of his lower back injury. I am satisfied that such consequences, when judged by a comparison with other cases in a range of possible impairments, can be fairly described as being more than significant or marked and at least very considerable and will persist into the foreseeable future.
88 Accordingly, pursuant to s134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages and loss of earning capacity damages in respect of a low-back injury suffered by him in the course of his employment with the first defendant, and in particular on 23 July 2003.
89 I will hear the parties on the question of costs.
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