Flomo v Victorian WorkCover Authority
[2024] VCC 486
•15 May 2024
| IN THE COUNTY COURT OF VICTORIA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-04811
| CLARENCE MOSES DEAVEN FLOMO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 April 2024 | |
DATE OF JUDGMENT: | 15 May 2024 | |
CASE MAY BE CITED AS: | Flomo v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 486 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to the spine – pain and suffering only – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Davidson v Transport Accident Commission [2015] VSCA 12; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Ellis Management Services Pty Ltd v Taylor (2013) VSCA 326
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Macaskill | Maurice Blackburn |
| For the Defendant | Ms K M Manning | TG Legal + Technology |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff whilst working for Winslow Constructors (“the employer”) on 18 February 2020 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a)permanent serious impairment or loss of a body function.”
4The body function relied upon in this application is the spine.
Outline of Section 134AB
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Haden Engineering Pty Ltd v McKinnon[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2010) 31 VR 1 (“Haden Engineering”)
12The plaintiff relied upon two affidavits, and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
13While the cause of action was injury by way of gradual process, the incident on 18 February 2020 was “the main aspect”.[3] The plaintiff’s case is that “overall, he was essentially a stoic who was getting on with it as best he could, despite having suffered the debilitating spinal injury when aged only thirty-six”.[4]
[3]Transcript (“T”) 3
[4]T6
14From the defendant’s perspective, it is a range case. “There is no issue as to the injury itself or a short period of consequential treatment and symptoms, but when focusing on the injury as at the date of hearing, the consequences do not meet the requisite threshold”.[5]
[5]T7; Haden Engineering at paragraph 14 per Maxwell P
The Plaintiff’s evidence
15The plaintiff is presently aged forty, having been born in November 1983 in Liberia. After finishing school, as well as doing clerical work, he did some construction work and worked as a youth worker in Liberia.
16After migrating to Australia in September 2016, he initially worked as a disability support worker with the Independence Australia Group, but from about mid-2017 he did construction work through a few different labour-hire agencies before he started with the employer in about July 2018 on a full-time permanent basis.
17In 2017, he had obtained a Certificate III in Civil Construction Plant Operation and a Certificate III in Disability Support Work.
18The plaintiff’s labouring job with the employer involved a lot of physical work, and also some truck driving. While the work was hard, he was pleased to have a well-paying job and was able to cope with its physical demands.
19Before the said date, he had never had any significant or long-term problems with his lower back. He understood a few previous episodes of low back pain were noted in his medical records. He saw Dr Opio in November 2018 for back pain and a back strain after starting a generator at work with the employer. This was not a significant problem, and he continued with his normal work and other activities.
20Unfortunately, things changed dramatically on the morning of the said date when he was working on a job site in Melton and suffered an injury while cutting a concrete pit and pipes in a deep trench (“the incident”).
21An undated Claim Form set out the plaintiff suffered injury when asked to cut a square hole for a pipe into a pit using a saw.
22An employer’s incident report for the incident on 18 February 2020 set out:
“Clarence was asked to cut a hole on a pit for a 225 pipe in a trench with a demo saw. After he used the demo saw, he went to stand and had pain in his lower back.”
23After the incident, the plaintiff felt a very strong pain, and his low back seemed to be locked up. He reported his injury to his supervisor and was helped from the trench.
24He attempted to return to work on 21 February 2020, but that turned out to be a bad idea. He was only doing light duties – office duties, admin tasks with some filing, some general cleaning and flagging – but his back was not up to it, and he was frequently in a lot of pain. The pain was also going down into the back of his left thigh.[6]
[6]T23
25He took the occasional day off work as a result of the pain. He saw a company doctor and his general practitioner (“GP”), and was taking painkillers to help him get through the day.
26Although he was certified fit for pre-injury duties by the company doctor, he never returned to them, and was still on restricted duties when his employment was terminated on 18 May 2020.[7]
[7]T23. Termination occurred after a final performance meeting regarding the plaintiff’s tardiness and lack of communication earlier complained of.
27He was eventually sacked for having arrived late to a job site after initially going to the wrong site. He was later told his employment was being terminated due to his lateness and other absences.
28He could remember receiving one or two written warnings, not three as he was shown.[8] He agreed his employment was terminated because of these issues, not because he could not do restricted duties.[9]
[8]Written warnings related to lateness and non-attendances were issued on 6, 13 and 14 May 2020.
[9]T24
29The plaintiff submitted a claim for compensation before his employment was terminated.[10] In his undated claim form, it was noted that the plaintiff gave his employer the claim form on 28 April 2020 with the first medical certificate on 19 February 2020.
[10]T55
30The plaintiff saw a neurosurgeon, Mr Nair (via Telehealth in 2020), although the COVID outbreak made getting treatment very difficult and appointments were online. He recommended against surgery. As the plaintiff understood, there were two levels of damage in his low back.
31The plaintiff had not been able to return to physically based labouring work. He found some work here and there in disability support roles from early 2021 through Home Scope.
32As of April 2023, his hours varied quite a lot.[11] He might get up to 30 or even 40 hours a week. It was much lighter work than his labouring job with the employer and he only did jobs that did not require heavy lifting. He might help a client with shopping or with basic domestic chores. The work was not fast-paced or demanding. Even so, he was working with at least some back pain all the time, and he had flare-ups of more significant back pain several times each day, which could often be quite severe.[12]
[11]First affidavit sworn on 28 April 2023
[12] T18
33He found he very much needed his time away from work to rest his back. It had become a difficult cycle of working and suffering increasing pain, resting to let the pain pass, and then reaggravating the pain yet again when back at work, even though he was only doing very light work. He was then worried about how long he would be able to keep going that way.
34Outside of work he used to coach a basketball team. His back was not up to that anymore, and he had not been able to coach for some time.
35He also used to exercise regularly to keep fit, but now struggled to do so, and had not exercised for some time.
36This had all been very frustrating and upsetting for him, as it just served to confirm how much the injury had compromised almost all aspects of his life in some way.
37He could not walk very far or stand for very long without pain becoming severe. He could not drive very far without pain becoming problematic.
38Bending and twisting type movements using his waist could be very painful. If he was to have any chance of keeping his back pain under some control, he needed to keep changing his position throughout the day. Having to do this, and still deal with the pain all day, every day, had really worn him down.
39He did not even get much release at night. He struggled to get to sleep and then stay asleep due to back pain. He had not had a good night’s sleep for a very long time.
40He was then taking Osteomol, Mobic and Nurofen. These tablets could and often did help to a limited degree. However, if his back pain was really bad, the tablets did not seem to help much at all.
41His back injury had changed his entire life. He was no longer able to work in a physically based labouring role. He had been limited to light homecare-type duties and was even struggling with them. It was not the case that he could enjoy his free time either. His old pastimes were now lost to him due to his back injury, and it was hard to overstate how devastating all of this had been to him.
Current work[13]
[13] Affidavit sworn 5 April 2024
42He now manages his work in disability support as best he can. He needs to earn money so he can support himself, his children, and his new wife. He works because he needs to, but continues to suffer pain and restrictions at work.
43He would not be able to return to construction or labouring work now because that type of work is too heavy for his back.
44Work is certainly an activity that triggers and aggravates his pain, so he often takes painkillers during or after a shift. He also has a hot water bag his physiotherapist gave him to wrap around his back.
45The plaintiff gets his work through a number of disability support agencies with which he has registered. He accesses their apps to get work. He has not worked for Home Scope since coming back from Liberia in March this year.[14] He worked for the six agencies listed in his 2022-2023 taxation return.[15]
[14]T26
[15]T27
46He continues to work about 30 to 40 hours a week, depending on the availability of shifts. He may work more hours if they are available. He could get up to 45 hours per week.[16] He has the flexibility to spread his shifts out over the course of a week because he signed-up with various agencies.
[16]T30
47He is currently only working for Cocoon. He thought he had done six or seven shifts since coming back from Liberia in March. He tries to get weekend or holiday shifts as they pay better.[17]
[17]T29
48Overall, he is doing his best to earn an income and to manage his life generally despite his injury, but even though he is trying to be careful with his back he continues to struggle with pain and restrictions. As a result, he continues to worry about his future.
49He was able to provide the following activities described in his résumé, both at Home Scope and McArthur:
Home Scope
· Assist with personal care, personal support, manage incontinence;
· Assist with medication administration, feeding, mealtime preparation;
· Engaged clients in community access, cooking skills, and activities of choice;
· Support and assist with mobility needs, wheelchairs, hoist transfer, etc;
· Complete daily progress notes, client’s communication book, documentation.
McArthur
· Provide assistant with all aspects of daily living including meals, personal care, domestic activities, social and community participation and varying skills development activities;
· Provide support with medication administration, transport to appointments and/or shopping.
50If a client needed help with a walking aid or a wheelchair, he would have to assist them. He would manage to do that.[18] They did not have hoists at Home Scope.[19]
[18]T32
[19]T33
51When he worked with Independence Australia (before the injury), his duties were similar to his current duties. He agreed after the incident he had done manual handling. He felt himself managing to do that.[20] He is still managing to work as a disability support worker: “I managing everything that I do, with the pains (sic).”[21]
[20]T34
[21]T36
52The plaintiff set up an ABN in about mid-2021, but he cannot recall using it, as he was able to find work as an employee for various disability support agencies.
53He obtained a Certificate IV in Disability in about March 2020 through the National Business Academy. It took him pretty close to a year or more, and he was studying part time whilst he was working for the employer. He did most of the course online, and sometimes attended in person. He was able to complete the assessment required.[22]
[22]T25
54He completed a Diploma of Youth Work in January 2022. It took a year or two, mostly online and sometimes in person. He did not get any credit for the youth work he had done in Liberia.[23] He recently applied for a youth worker job but was unsuccessful.[24]
[23]T35
[24]T36
Progress of back condition
55When it was suggested to him there had been improvement during 2020 over the course of treatment, the plaintiff said he “had been managing the pain all through.” He did not really agree there had been an improvement. There had been “management”. He did agree through 2020 there was a reduction in his pain, and particularly his leg pain.[25]
[25]T8
56He agreed with Dr Stobart’s 8 October 2020 note that he had improved a lot and could drive machines and trucks. As was recorded on 5 November, there was back pain but not too bad, and no referral.[26]
[26]T10
57In January 2021, Dr Opio noted:
“back pain due to work injury,
regular Dr retired.
pain has improved while taking physiotherapy sessions.
full R[ange] O[f] M[ovement spine.
no pain with all movements.
he will continue with physiotherapy.
he has the capacity for suitable duties but avoid lifting more than 10kgs, pushing or pulling, bending or twisting.”
58That note was mostly accurate, because when the plaintiff went to see the doctor, he was eager to get back to work. He told the doctor he could get back to work and have his life going, and he did.[27] He then started to work in disability support, where he already had qualifications.
[27]T11
59On 8 February 2021, Dr Stobart confirmed the plaintiff’s restrictions with bending. Dr Stobart noted the plaintiff was continuing rehabilitation exercises at home; had not seen a physiotherapist because of some family issues; working in disability now 40 hours per fortnight; will have possibility of increasing his hours; he feels he could cope. Nabenet were going to assist in finding more work in disability.[28]
[28]T12
60The plaintiff had started work at that stage and was looking to increase his hours.[29]
[29]T12
61The plaintiff attended on 24 September 2021 for one of his flare-ups. It was then noted that his lower back pain was exacerbated by standing or walking for more than five minutes. He was prescribed Panadol Osteo and Voltaren Rapid.[30]
[30]T13
62The next attendance was at another clinic on 6 April 2022 with Dr Negash at Hoppers Crossing. The reason for attendance was for “[a]dvice and listening”. The history set out: “has come for advice; has ongoing [W]ork[C]over for his back issues. [H]is GP retired.” In terms of management, it was explained “I don’t take up existing [W]ork[C]over,” and he advised the plaintiff check with other GPs.
63The plaintiff agreed he was not then prescribed any medication.[31]
[31]T15
64The plaintiff saw Dr Negash on 25 October 2023. The history was “c/o [complained of] chronic back pain playing up. [S]tated it is work related injury and not seeing [W]ork[C]over doctor - [contact] address given as I don’t take up [W]ork[C]over cases.” Mobic was prescribed.
65Dr Negash told the plaintiff then that he did not see WorkCover patients. He prescribed Mobic and told the plaintiff he could not see him any further. The plaintiff asked for another referral to a WorkCover specialist but had not seen anyone yet.[32]
[32]T16
66Shortly after that the plaintiff went overseas, and since he has come back in March, the plaintiff has not seen another doctor. He still sees Dr Negash in Hoppers Crossing for non-WorkCover matters.
Current situation
67The plaintiff continues to struggle with ongoing low back pain, which is present most days and is aggravated by physical activities such as sitting, standing or walking for long periods; bending and twisting type movements like putting on his shoes; and heavy lifting. He continues to need to keep changing position throughout the day to try to manage the pain as best he can.
68He still gets some pain radiating down his left leg occasionally, but his main problem is lower back pain.
69He confirmed his pain level was as described in his April 2023 affidavit – “working with at least some back pain all the time and I will flare up with more significant back pain several times a day, the pain can often be quite severe”.[33] This is an accurate statement of his pain currently. He agreed he was asking the Court to accept he had some level of pain all the time, which at times is more significant and at times somewhat less.[34]
[33]T18
[34]T19
70While he recently deposed he continued to struggle with ongoing low back pain, which is present most days, he agreed he was not saying “every day”, having earlier said his pain was there all the time. There were times it is better when he takes Panadol, and at times he struggles with the pain. When he “keeps on” his Panadol it is better.[35]
[35]T20
71He then confirmed he has pain every day, and then said “yes, most days”. There are some days he feels better. He agreed the truth of it was that some days he had pain, and some days he did not. The injury is there, but it depends. He feels the pain, “but I’m just managing”.[36]
[36]T20
Recent treatment
72He has not really had a regular GP for his WorkCover claim since his previous GP, Dr Stobart, retired in 2021. He consulted Dr Opio at the same clinic in Melton until moving to Werribee.
73He has discussed his ongoing back injury and pain on a couple of occasions with Dr Negash, at Hoppers Super Clinic, most recently in October 2023 when he prescribed some Mobic when he had a flare-up. However, Dr Negash told him he does not see WorkCover patients.
74After consulting with Mr Nair in late 2020/early 2021, the plaintiff understands that Mr Nair did not recommend surgery and that he needs to manage his condition and pain as best he can.
75While Mr Nair wrote to Dr Stobart on 25 January 2021, recommending referral to a pain specialist for further management, the plaintiff has never been referred for pain management.[37]
[37]T49
76Currently the plaintiff takes Nurofen, Panadol Extra, or Osteomol medication to manage the pain. He also rubs Deep Heat on his back. He has used prescription medication when he has needed something stronger for flare-ups. He does not take painkillers every day but uses them quite regularly each week. He takes the medication when he is in pain. That would be once or twice a week, and he would take two tablets, depending how many days he “is carrying the pain for.”[38]
[38]T50
77He is still doing exercises at home using bands and other equipment. The exercises help to relieve and stretch out his back. He was having physiotherapy through WorkCover. Funding had not been stopped. He had not had any injections.[39]
[39]T52
78He agreed doing his exercises and managing his activities meant that he was still able to do his work as a disability support worker, and he takes medication on days when troubled by back pain.[40]
[40]T53
79Prolonged postures make his pain “100 percent worse”. When standing in the kitchen washing dishes, trying to cook, the pain is there. He has to stretch out. He starts to feel pain sometimes walking clients and has to then do twisting and stretching.[41]
[41]T21
80He can walk for half an hour, but he has to have a bit of a stretch to continue his walking. His back prevents him from doing a lot of activities that he loves, but when it comes to work and other things around the house, he has to do them. He has to manage.[42]
[42]T22
Neck pain
81During 2021, the plaintiff had some pain in his neck and shoulder area radiating into his left arm, but that has now settled. He could remember seeing the doctor for neck pain on 17 May that year and being prescribed Tramal and Naprosyn. He accepted there were times in 2021 he was prescribed medication for conditions other than his back.[43]
[43]T13
82He was also having some wrist pain in 2022, and still gets some left wrist pain now, but unlike his back injury it is not a major problem, and it does not significantly interfere with his work or leisure activities.
Activities
83He continues to be restricted in his activities outside of work. His sex life with his new wife has been impacted because of his back pain and restrictions.
84He has not returned to coaching a basketball team in his local community. He really enjoyed playing and coaching but is not able to do so anymore because it is too painful. He coached in a yearly competition, not a regular weekly competition.[44]
[44]T41
85Exercising generally continues to be a struggle. He still does physiotherapy exercises but cannot properly workout at the gym or go running fast like he used to. He used to exercise regularly and keep fit but struggles to do so now. He registered for a gym around 2018 but did not attend.[45]
[45]T42
86He also used to enjoy playing soccer with friends but cannot play anymore. He was “a member of older men in the community, a soccer club”. On Sundays they played a social game of soccer and did exercises on the field.[46] Since injuring himself he still goes down to the park on Sundays and “just stands there”. He is able to socialise and talk to people and see his friends, but not kick a soccer ball around. He has not tried, because he knows he has a back injury, and he cannot play soccer.[47]
[46]T42
[47]T43
87While he denied he can enjoy his free time, he agreed he is still able to catch up with friends and go away for the weekend.[48] He loves to do anything that makes him happy: fishing, boating, sports, maybe sometimes going to weddings. He loves travelling. Realistically he is still able to do these things.[49]
[48]T44
[49]T48
Overseas travel and treatment
88From December 2023 through to January 2024, the plaintiff was in Liberia. He went there to marry his wife. He agreed that was obviously a joyous occasion. The plan is for his wife to come out here and join him, “a hundred per cent”. He and his wife also went on a trip together in Singapore in 2023 and he enjoyed his time there.[50]
[50] T46
89While overseas from November 2022 to January 2023, the plaintiff saw his eldest son in South Africa. He also visited Liberia and Ghana. He saw friends and family and enjoyed seeing them. He did not do any sightseeing or any other activities.[51]
[51]T45
90In November 2023, he went to Bali for three days with a friend, sightseeing and going out for dinner. He agreed it was an enjoyable, nice time.[52]
[52]T45
91These overseas flights were very difficult because of his back pain. His back has always been very sore during the long-haul flights, and he has had to move around and put pillows behind his back to manage. He also has to rely on painkillers during the flights.[53]
[53]T47
92On his recent trip to Liberia, he was really struggling with back pain after he arrived. He saw a local doctor in Monrovia on 3 January who viewed the report of his December 2020 MRI scan. He was prescribed Diclofenac (Voltaren) and Naproxen medication to help with the pain, as well as Diclofenac ointment to use on his back.[54]
[54]T18
Domestic life
93The plaintiff now lives with a housemate in Werribee. They share the domestic chores. The plaintiff does his own cooking.[55]
[55]T39
94He needs to manage cooking, cleaning, and housework as best he can, even though this can also be very painful. When he stands for long periods in the kitchen to cook or wash dishes, this triggers worsening back pain. However, these are tasks he needs to do, so he pushes through and does them, even though they are painful.
95He agreed he was able to look after himself and was “always very well turned out”.[56]
[56]T48
96In addition to his eight-year-old son who lives in South Africa, the plaintiff has four children in Australia – one aged nearly seven, twins aged five, and his youngest about eighteen months – but they do not live with him.[57] He has access to his four children in Australia and sees them when he can, depending on his availability and their mothers’ availability.[58]
[57]T37
[58]T38
97His children in Australia enjoy playing sport, particularly soccer, but he cannot really join in and kick a ball with them now. He still does things with them, such as taking them to the park, but he finds it difficult to properly play with them. It makes him sad that he cannot play with them the way he would like to. Sometimes he needs to lift the younger ones, for example to get them into the car, and that triggers pain, but it is something he needs to do.
Sleep
98His back continues to be painful at night, and he suffers from interrupted sleep. He struggles to get comfortable to sleep, and regularly wakes during the night, tossing and turning, and struggles to get back to sleep. When he does not sleep well, he feels tired the next day.
99He has not asked a doctor for pain medication to help him sleep.[59]
[59]T49
Driving
100He is able to manage driving locally and driving to clients’ houses around the community but avoids driving long distances.
Wage details
101The plaintiff’s 2022-2023 taxation return showed a taxable income of $62,677 (following various deductions), including the following gross payments from a number of agencies:
| Payer | Gross payment |
| Connecting Abilities Australia Pty Ltd | $14,401.00 |
| Home Scope Pty Ltd | $45,250.00 |
| McArthur (Vic) Pty Ltd | $22,027.00 |
| Independence Australia Group Limited | $1,096.00 |
| H1 Healthcare Pty Ltd | $16,477.00 |
| Complete Care Services Victoria Pty Ltd | $2,840.00 |
The Plaintiff’s medical evidence
Treaters
Dr Rod Stobart, general practitioner
102Dr Stobart wrote to Gallagher Bassett in August 2020.
103He advised the return-to-work certificate issued on 16 March 2020 was issued by another clinic.
104When the plaintiff attended Dr Stobart’s clinic, he indicated that, when he worked, he had a lot of pain. He was given a restricted duties certificate by another doctor at the clinic on 30 April 2020. On the basis of the MRI report, he referred the plaintiff to a neurosurgeon, who recommended physiotherapy. The plaintiff indicated that he had too much pain to work as a labourer, so he was issued with an “unable to work at all certificate”.
Back in Motion physiotherapy
105Mr Rincy Sam, physiotherapist, wrote to Dr Stobart in February 2020. He diagnosed lumbar dysfunction.
106Management consisted of education on recovery timeframes, activity modification, and proper sitting techniques.
107The plaintiff had been prescribed gentle lower back and lower limb strengthening and stretching exercises and had reported improvement since the commencement of physiotherapy, but had a concern that he could feel something moving back and forth when he came up from a bending position.
108Dr Stobart referred the plaintiff back to Back in Motion physiotherapy on 24 June 2020.
109He advised that the presenting problem was lower back pain. An MRI scan showed left nerve root compression right side, but the plaintiff’s pain was referred to the left leg. Mr Nair, neurosurgeon, had advised eight weeks physiotherapy to start.
110At that stage, the plaintiff was being prescribed Naprosyn, Panadeine Forte, and Panadol Osteo.
Mr Girish Nair, neurosurgeon
111On 29 May 2020, Dr Stobart referred the plaintiff to Mr Nair, neurosurgeon.
112Dr Stobart advised that the plaintiff had developed lower back pain post using a heavy concrete saw on 18 February 2020. The presenting problem was “Pain referred left anterior thigh MRI ? L5 nerve root compression ?!!” He noted the plaintiff returned to normal duties on two occasions but suffers recurrence of pain. Current medications were Naprosyn and Panadol Osteo.
113Mr Nair first saw the plaintiff in June 2020.
114The plaintiff told him about the incident and subsequent severe back spasms, and that he had been unable to work because of his symptoms.
115Mr Nair reviewed the April 2020 MRI which showed degenerative changes at the lower three lumbar levels, but pertaining to the plaintiff’s radicular symptoms he thought this was the narrowing onto the left L3 with some contribution from the narrowed left L4 nerve root.
116In a young man who otherwise does not have any weakness in his leg and whose main symptom is pain, Mr Nair was keen to try conservative treatment and, to this end, sought the GP’s assistance in starting the plaintiff on a combination of anti-inflammatories and Pregabalin. He also advised the plaintiff should see a spine physiotherapist, go for walks, and try to keep generally fit and active. He arranged a review in eight weeks.
117After a follow-up appointment on 14 September 2020, Mr Nair advised Dr Stobart that the plaintiff had been on medications, and certainly that had helped completely with his leg pain, with the plaintiff complaining only of back pain that day.
118He was happy the plaintiff had responded to conservative treatment before embarking on any further interventions for improving his back pain. He was keen for the plaintiff to push further and do exercises to strengthen his core and back muscles. He also recommended hydrotherapy.
119A further follow up was arranged in eight weeks. If the symptoms were still persistent or progressive, he planned to complete the MRI scan, but this time with a CT SPECT bone scan to see whether the plaintiff would be a candidate for surgery.
120Following review on 19 November 2020, Mr Nair again wrote to the GP. The plaintiff told him he certainly had no symptoms in his legs anymore, but sitting, standing, or doing any physical work caused his back pain to flare up, despite him participating in physiotherapy. As he has explained previously, there was a need to re-investigate the plaintiff, so there would be an MRI scan of the lumbosacral spine and a CT SPECT bone scan organised.
121The treatment plan was to see if the plaintiff’s pain is primarily discogenic or facetogenic lower back pain related to disc wear and tear and if there might be possibility of a surgical solution. However, if there were no concordant problems in those investigations, the plaintiff’s treatment on an ongoing basis would have to be transferred across to a pain physician. He would update the final plan after the next visit.
122Mr Nair had a telehealth visit with the plaintiff n 20 January 2021, which ended up happening over the phone.
123Mr Nair advised Dr Stobart that the bone scan had not shown any significant uptake and hence he did not think the plaintiff needed a surgical intervention. Considering the plaintiff was having ongoing symptoms, he would recommend referral to a pain specialist for further management.
Dr Jacob Opio, Healius, Melton
124Dr Opio reported in August 2021 that the plaintiff had been a regular patient at that clinic for four years, and he took over after the plaintiff’s regular GP retired in May 2021.
125The plaintiff told Dr Opio of his work duties, the February 2020 incident, and subsequent treatment.
126Dr Opio thought the radiological finding of disc bulge, arthropathy and nerve root compression was a result of the repetitive use of the plaintiff’s back while performing work resulting in damage to the lumbar spine which was demonstrated by the radiology. The damage to the plaintiff’s lumbar spine had caused the chronic lower back pain.
127The plaintiff was currently working in disability, which involved no heavy lifting, and he helped with services which included taking clients out. He had stopped physiotherapy; however, he continued to perform personal exercises at home. He took pain medication as needed. He reported feeling increased back pain when he stood for more than 30-to-40 minutes, and therefore needed to do stretching while at work.
128The plaintiff would benefit from regular hydrotherapy and physiotherapy and may also need further specialist review to determine the way forward, including chronic pain management and to determine if surgery was necessary or not.
El-Shaddai Medical Health Centre, Liberia
129A GP from that practice reported that the plaintiff attended on 12 December 2023 “with the complaint of injury at job site, which caused him serious back pain and difficulties in standing up straight”. The plaintiff was examined and medications prescribed, dispensed and administered:
“Treatment: Im Diclofenac, 75mg, qd x 2/7,
P.O Diclofenac 50mg bid x 5/7
Diclofenac Ointment to be rub twice a day for one week.”
130On 3 January 2024, the patient returned with a complaint of severe back pain, and an MRI lumbar spine scan was ordered and done. The scan shows decreased space between L5-S1. Intervertebral disc height and signal reduction throughout the lumbar spine, mainly at the L3-4, L4-5 and L5-S1 levels consistent with disc degeneration and desiccation are the findings.
Hoppers Crossing Super Clinic
131The Hoppers Super Clinic, where the plaintiff saw Dr Negash, advised the plaintiff’s solicitor by email on 3 April 2024 that unfortunately the clinic does not accept WorkCover payments. Therefore, the doctor was not able to write a report as per the request.
Plaintiff’s Medico-legal
Associate Professor (“AP”) Miron Goldwasser, orthopaedic surgeon
132AP Goldwasser examined the plaintiff on behalf of Gallagher Bassett in March 2022.
133At that stage, the plaintiff felt there was stiffness in his back and it did not move as well as it used to. He had pain in the lower part of the back to the left side of the midline that went to his left buttock and back of his thigh to the knee. He estimated pain was present 75 percent of the time.
134Prolonged postures gave the plaintiff difficulty. His sleep was often interrupted, and it was difficult for him to have intimate relations with his wife.
135The plaintiff was not seeing a local doctor currently, but used to see one who prescribed medications, including Mobic. The plaintiff now takes over-the-counter medication such as Nurofen, about two tablets a day, and last saw a doctor eight months ago. He continued with home exercises about three to four times a week.
136At that stage, the plaintiff lived in a double storey house with his wife and three children. He was less helpful at home.
137On clinical examination there was mild restriction of extension and flexion. There was tenderness in the lower back.
138AP Goldwasser noted the results of the x-ray of the lumbosacral spine of March 2020, the MRI scans of 9 April and 17 December 2020, and a nuclear bone scan of the lumbosacral spine including SPECT space. CT imaging was performed on 17 December 2020.
139He thought the plaintiff probably suffered a soft tissue injury to his lower back in the presence of pre-existing degenerative changes consistent with the reported episode.
140The symptoms have continued to be troublesome with intermittent flare-ups and the conditions remained much the same for a long period of time in recent months. There is no current plan for surgery.
141The condition was unlikely to change substantially. He allowed an AMA permanent impairment rating for the lumbar spine.
Dr Hazem Akil, neurosurgeon
142Dr Akil examined the plaintiff in March 2024.
143The plaintiff then continued to have left-sided lower back pain that was described as constant and present the whole time. It was worse on standing longer than 10 minutes or walking between 10 to 15 minutes. Sitting for prolonged periods was also associated with worsening of the pain, as well as physical activities. Intermittently, the plaintiff felt the pain radiated down his left leg all the way to his foot, but that was not a constant feature.
144On examination, extension triggered further pain on the left lower lumbar region. Forward flexion was normal. Straight leg raising on the left was limited to 45 degrees.
145Dr Akil reviewed the March 2020 x-ray and the reports of the two 2020 MRI scans and the bone scan.
146The symptoms that the plaintiff was complaining of were compatible with aggravation of lumbar spondylosis. On the balance of probabilities, the incident was a significant contributing factor.
147Dr Akil thought the prognosis was guarded.
148In terms of the impact on his life, the plaintiff advised his ability to practise his sport had been reduced. He used to go to the gym and play basketball regularly. He sometimes struggled playing with his children. He advised his sex life had been affected and sleeping was usually interrupted which affected his day after.
149Dr Akil thought employment was a significant contributing factor to the plaintiff’s spinal condition.
150The primary restrictions were bending or repetitive bending, lifting objects heavier than 10 kilograms or repetitive lifting, pushing or pulling or repetitive pushing and pulling, and fine manipulation of his spine. This would continue for the foreseeable future.
151He did not believe the plaintiff should return full or part-time to his pre-injury employment, and that the situation was permanent.
152The plaintiff’s realistic capacity for work is mild work such as a carer, which does not involve particular lifting or any of the restrictions suggested.
153In his supplementary report of April 2024, Dr Akil advised he continues to believe there is a substantial organic basis for the plaintiff’s reported pain symptoms and restrictions. He continues to believe the plaintiff’s employment is a significant contributing factor to his current condition.
154He noted from the medical records of the GP that the plaintiff started having lower back complaints in 2018 and 2019. These are the times when he started working with the employer. The 2020 incident was the tipping point that resulted in much worsening of the plaintiff’s lower back pain.
155The plaintiff’s current symptoms and restrictions would likely continue for the foreseeable future.
Investigations
156Dr Aslam organised a lumbar spine x-ray on 28 March 2020. It was reported there was disc space narrowing at L5-S1. ? underlying disc prolapse. No destructive bony changes. No pars defect was seen.
157Dr Aslam organised a lumber MRI scan on 9 April 2020. It was reported there was mild lumbar spine spondylosis with minor broadbased disc bulge at L4-5 and L5‑S1. Likely impingement of exiting right L5 nerve root. Possible bilateral L4 and left L3 exiting nerve roots compression. Mild to moderate bilateral facet joint arthropathy and hypertrophy, worse at left L5-S1. It was noted further clinical correlation may add value.
158Mr Nair organised a nuclear bone scan of the lumbosacral spine, including SPECT imaging in December 2020. It was reported there was a normal nuclear scan of the lumbosacral spine and sacroiliac joints. Possible very early degenerative disease in the L5-S1 facet joints on CT.
159Mr Nair also organised a lumbar MRI scan in December 2020. It was reported there was left foraminal and lateral disc bulge or protrusion, L3-4 impinging on the left L3 nerve root. There were disc bulges at L4-5 and L5-S1. No pars defect. Small increase in joint fluid in the L5-S1 facet joints.
Vocational
160Dr Stobart completed a Nabenet Suitable Employment Options Questionnaire on 8 October 2020. He thought the following work options that had been identified were suitable for the plaintiff: earthmoving plant operator, forklift driver, truck driver, disabilities services officer, and community worker. The current or anticipated work restrictions in relation to the identified roles were “no lifting or bending.”
161He considered the plaintiff had a current capacity to participate in a 12-week job seeking program and CSS capacity support program.
Defendant’s medico-legal
Dr Anthony Menz, orthopaedic surgeon
162Dr Menz first examined the plaintiff on 21 May 2020.
163The plaintiff told him of the February 2020 incident and ceasing work on 18 May 2020. He reported low back pain as 7/8 out of 10, but that was not the impression Dr Menz had.
164On examination, the plaintiff had a rapid and what appeared to be pain-free range of motion.
165Dr Menz diagnosed aggravation of pre-existing mild lumbar spondylosis, noting the April 2020 MRI.
166It was possible the plaintiff’s lumbar spondylosis was aggravated working in a confined space using a saw on the said date. There was an exacerbation of lumbar spondylosis, and currently the exacerbation was associated with employment.
167The plaintiff had capacity for modified alternative duties which should be determined by a return-to-work consultant, occupational physician, or therapist.
168Dr Menz believed the plaintiff should have six weeks of physiotherapy, mainly to help him build up his core muscle strength to prevent this happening again. The plaintiff did not require any surgery.
169Dr Menz was asked for a supplementary report, the request noting “The worker’s treating practitioner issued a clearance certificate on 24 April 2020” which did set out under treatment plan “for rest and light duties, as well as simple analgesia. Will benefit from physiotherapy. Neurosurgeon referral.”
170He pointed out that the plaintiff was doing light duties before he ceased work, and as such on return to work he should recommence doing light duties.
Dr Ralph Poppenbeek, occupational physician
171Dr Poppenbeek first examined the plaintiff on 18 February 2021.
172The plaintiff told him he had much improved since the initial problem in February 2020, but still had difficulty bending because of back pain and stiffness. He described constant low back pain, worse with activity, but no cough pain or numbness. Initially the pain radiated into the posterior left thigh, but that appeared to have now gone.
173The plaintiff described sleep disturbance because of back pain, which was now intermittent. He could manage activities of daily living, driving, and general function satisfactorily.
174The plaintiff was very vague about his history and could not recall names of any medications. He advised that physiotherapy finished about four weeks ago, and Dr Poppenbeek understood from the plaintiff’s narrative that it stopped because of his daughter’s serious illness.
175The plaintiff did exercises and saw his GP once a month.
176The plaintiff said he continued full-time restricted duties until 18 May 2020 when his employment was terminated.
177Dr Poppenbeek understood from the plaintiff that occupational rehabilitation was then introduced, and the plaintiff had commenced work as a support worker about two weeks earlier on his own efforts. He then attended as required for this work, and looked after one independent client, and appeared to be managing that satisfactorily.
178The plaintiff stated he was separated and lived by himself but could manage activities generally satisfactorily.
179On examination, mobility was satisfactory and confident. There was some tenderness to the left of the lumbosacral region and centrally. The plaintiff demonstrated a full range of movement relatively comfortably, reporting stiffness at full flexion and left lateral flexion movements only. Straight leg raising was free to 90 degrees in each leg.
180The plaintiff presented with no x‑rays or test results.
181Dr Poppenbeek reviewed the October 2020 rehabilitation report identifying certain options which seemed to have been approved by a previous treating doctor that month.
182The April 2020 MRI indicated pre-existing degenerative change and facet joint arthropathy at the lower two lumbar levels. Dr Poppenbeek thought this condition was aggravated by activities at work on the said date. He did not think that clinically or radiologically there was evidence of frank disc protrusion. The plaintiff stated that he had a follow-up MRI and bone scan but did not have the results.
183Sufficient time had elapsed for such aggravation to have resolved, and examination revealed minor issues only. The question of resolution was difficult to address, as he did not have any documentation regarding what the plaintiff’s symptoms were for his pre-existing condition. Usually one would expect a twelve‑month period to have resulted in full resolution of aggravation of the condition. He suspected there was a degree of stiffness in the lumbar spine, which was a residue of that injury, but he felt that a short rehabilitation program would resolve the stiffness.
184The plaintiff had probably made an 85 to 90 percent recovery, but resolution of issues from the injury should occur in the next four weeks, depending on results from the recent December 2020 radiology.
185It was difficult to answer if employment was still a materially contributing factor because the radiology shows a significant pre-existing problem. The contribution from the injury was still a material contributing factor, but that was resolving and should no longer apply in about four-to-six weeks’ time.
186The radiology indicated the plaintiff’s injury was an aggravation of a pre-existing condition, and the history indicated facetogenic pain, which was consistent with aggravation of pre-existing facet joint arthropathy.
187The plaintiff could now return to his pre-injury hours, but he should still avoid heavy lifting in excess of 10 kilograms regularly and unsupported, repetitive, or prolonged forward bending. The community worker and disability services officer roles would be the most appropriate of the jobs suggested in October 2020, but truck driver and forklift driver would also be suitable, provided those were not undertaken rapidly.
188The plaintiff had a capacity to participate in NES or other retraining programs. His capacity should be reviewed in four weeks.
189Physical treatment was interrupted because of COVID-19, and that may be an issue and a factor affecting recovery.
190It would be useful to have a copy of the recent MRI. The main issue the plaintiff had was involvement in a formal physically-based rehabilitation program. He was confident that with such a program, the plaintiff’s lumbar spine stiffness would improve and full recovery from the work injury would occur.
191Self-management was necessary now and would be assisted by a short physical rehabilitation program. The plaintiff should be fully fit to drive and travel by public transport without restriction.
192On re-examination on 2 November 2023, the plaintiff confirmed his previous history and advised of continuing disability support work.
193The plaintiff also advised of left-sided lumbosacral pain after about 15 to 20 minutes’ walking. He said he did some back exercises and straightened up.
194Overall, the plaintiff said his back was getting a little bit worse since February 2021. He gave no history of further back injury. He chooses jobs that he feels he can do and is not on a definite roster.
195On examination, mobility was satisfactory and confident, with no limp. Forward flexion was full. Extension was about half normal range. Straight leg raising was relatively free to about 75 degrees in the right leg and restricted to about 60 degrees in the left.
196He felt the plaintiff’s symptoms related to facet joint arthropathy at the lower two lumbar levels which was likely a pre-existing condition aggravated by work activities.
197On the basis of examination findings and history, together with the radiology, sufficient time had elapsed for the work aggravation to have resolved.
198Dr Poppenbeek noted the detailed medical reports with which he had been provided indicated the plaintiff had had episodic apparently mild central and left-sided low back pain a couple of times prior to the incident. However, the incident appeared to have produced quite severe symptoms, and he had difficulty continuing working in a physically demanding job subsequently.
199Treatment was conservative, and physiotherapy documentation indicated that substantial improvement had occurred by late 2020, consistent with his observations when last seen in February 2021.
200The plaintiff claimed continuing back and left leg pain, and examination revealed some stiffness, difficulty with extension and straight leg raising as objective findings, although no objective neurological deficit was noted.
201There has been minimal medical contact since the last examination, and the plaintiff advised he was averaging about 30 hours of work per week.
202Dr Poppenbeek did not feel the examination findings were severe or that they were consistent with significant disability. The findings were, in his opinion, consistent with facet joint dysfunction arthropathy, particularly at L5-S1, which was the working diagnosis.
203The plaintiff was only taking Panadol Osteo, which is a mild anti-inflammatory agent, for the management of his back condition. Assessment by a spinal orthopaedic specialist or a neurosurgeon could be of benefit.
204His feeling was that the ongoing symptoms the plaintiff described were consistent with the underlying pre-existing condition of lumbosacral facet joint arthropathy, rather than the work injury.
205Considering the available documentation, and that it was now three-and-a-half years since the injury, the aggravation from the injury had resolved by 85 to 90 percent, and the plaintiff’s stated continuing symptoms related to the pre-existing degenerative spine condition.
206The plaintiff had recovered from the work contribution, and the work injury has now very likely resolved. While one could never be certain, he felt the plaintiff’s ongoing symptoms relate to the pre-existing condition, which would be expected to produce ongoing symptoms.
207He did not recommend the plaintiff return to pre-injury employment, as that was described as heavy physical work requiring quite a lot of bending, lifting, and working in awkward positions, which would aggravate the pre-existing condition.
208He believed the plaintiff had a capacity for suitable employment with restrictions according to degree of tolerance, related to bending, lifting, and twisting.
209Of the 2020 job options, the plaintiff could certainly continue disability services officer work as he was currently doing, as well as community worker. He should be able to perform truck driver work, provided he does not have to do loading or unloading. He could operate as a forklift driver, provided he did not have to do strenuous physical loading and unloading, as was the case with earthmoving plant operator.
210If suitable work could be provided, the plaintiff could work full time in that employment. Medical restrictions related to unsupported, repetitive, or prolonged forward bending and lifting up to 10 kilograms.
211The plaintiff impresses as an intelligent and capable man, and Dr Poppenbeek was sure the plaintiff would have the capacity to complete any necessary retraining.
212The plaintiff appears to be doing 60 hours per fortnight well, and he could phase into full-time work in this occupation over two to four weeks if the hours were available.
213The plaintiff has the capacity to work full time as a youth justice worker, given his job application in July 2023 for this role.
Overview
214There is no dispute that the plaintiff injured his lower back in the incident at work on the said date.
215By letter dated 28 May 2020, Gallagher Bassett advised the plaintiff that his claim relating to injury on 18 February 2020 had been accepted. By letter dated 8 April 2022, the plaintiff was advised by Gallagher Basset that liability had been accepted for payment of impairment benefits for his lower back injury following an examination by AP Goldwasser.
216Essentially, medical examiners agree the plaintiff suffered an aggravation of lumbar spondylosis as a result of the incident, with Dr Poppenbeek also describing aggravation of facet joint arthropathy at the two lower lumbar levels.
217The lumbar MRI scan in December 2020 was reported to show left foraminal and lateral disc bulge or protrusion, L3-4 impinging on the left L3 nerve root. There were disc bulges at L4-5 and L5-S1 and a small increase in joint fluid in the L5-S1 facet joints.
218AP Goldwasser and Dr Akil considered the incident injury still plays a part in the plaintiff’s current lumbar condition. While Dr Poppenbeek considered sufficient time had elapsed for any work aggravation to have resolved, such resolution was not total but by a factor of 85 to 90 percent; however, Dr Poppenbeek did not provide any path of reasoning as to when and why the degenerative process took over.
219While the plaintiff complained of back pain in 2018 and 2019, these complaints were insignificant in the overall scheme of things, as the plaintiff continued his normal work activities until the said date.[60]
[60]T4
220As Dr Poppenbeek noted, the detailed medical reports with which he had been provided indicated the plaintiff had had episodic, but apparently mild, central and left-sided low back pain a couple of times prior to the incident. However, the incident appeared to have produced quite severe symptoms, and the plaintiff had difficulty continuing working in a physically demanding job subsequently. The incident was the tipping point that resulted in much worsening of the plaintiff’s lower back pain.
221Taking all the evidence into account, I accept that the plaintiff is presently suffering from an organic lower back impairment relating to the incident.[61]
[61]T5
Credit
222As Maxwell P said in Haden Engineering:[62]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[62]At paragraph 12
223In my view, the plaintiff was a credible witness. There was no attack on his credit.[63] While “TikTok” material was listed in the index of the defendant’s court book, the plaintiff was not cross examined in relation thereto.[64]
[63]T67
[64]T67
224Further, I accept the plaintiff is somewhat of a stoic, having continued to work since the incident, albeit changing to a lighter, less physically demanding role.[65]
[65]Per Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph 3 and Haden Engineering
225As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd (No 2),[66] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[66] Ibid
Pain
226In Haden Engineering, President Maxwell stated the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors).[67]
[67] Haden Engineering at paragraph 11
227Since the incident, the plaintiff has described experiencing lumbar pain of varying degrees “most days”. There are some days he feels better. The injury is there, but it depends. He feels the pain, “but I’m just managing”.[68]
[68]T20
Restrictions
228As a result of his back pain, the plaintiff has particular problems with prolonged postures whether sitting or standing. He had stand to stretch during cross examination because of increased back pain when sitting.[69]
[69]T48
229Prolonged postures make his pain “100 percent worse” when engaged in activities such as standing in the kitchen washing dishes, or trying to cook.
230While the level of lumbar movement has varied on examination, the consensus of medical opinion is that the plaintiff is restricted in his ability to bend, lift, push and pull.
231The plaintiff is still a relatively young man, now aged forty, with ongoing lower back pain and restrictions.
232As Ashley JA and Beach AJA stated in Stijepic v One Force Group Aust Pty Ltd,[70] when judging the pain and suffering consequences for the appellant by comparison with other cases, it is relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
[70] [2009] VSCA 181
Treatment
233The plaintiff has undergone conservative treatment for his lumbar pain.
234Initially, there were frequent attendances on his GP but, more recently, the plaintiff has only seen his GP after flare-ups, such as in late 2023 when he was prescribed Mobic and on his recent visit to Liberia.
235I accept that the plaintiff is a stoic who has got on with his life, not seeking regular treatment because he has been told there is little more that can be done, with only conservative treatment having been advised.
236Further, the plaintiff’s current GP does not see WorkCover patients and as the plaintiff is working full time, he does not need to see his GP for certificates. In the circumstances, he self-manages as best he can.
237The plaintiff had two bouts of physiotherapy treatment, the latest treatment being in 2021. While funding has not been ceased, it is interesting to note that the plaintiff told Dr Poppenbeek in early 2021 that he had then stopped physiotherapy because of his daughter’s serious illness. In any event, the plaintiff continues to do exercises at home which his physiotherapist suggested.
238While pain management was suggested in 2021, it is unclear why the plaintiff has yet to be assessed for such a program.
239The plaintiff requires over-the-counter painkilling medication on a regular, continuing basis, with more significant medication like Mobic prescribed to treat flare-ups.[71]
[71]T70
240As Dodds-Streeton J said in Kelso v Tatiara Meat Company Pty Ltd:[72]
“… The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[72](2007) 17 VR 592 at paragraph 199
Work
241The loss of ability to engage in a range of work is relevant to assessing pain and suffering.[73]
[73]Haden Engineering at paragraph 15; Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph 38; Ellis Management Services Pty Ltd v Taylor (2013) VSCA 326 at paragraph 35, and Davidson v Transport Accident Commission [2015] VSCA 12
242In this application, all examiners agree that the plaintiff is no longer able to engage in manual, unrestricted heavy physical work because of his lower back condition.
243At the time of injury, the plaintiff had been working in a manual job with the employer for nearly two years – not a short time – and had chosen to exercise his capacity in that field when he arrived in Australia until it was closed off to him when injured.[74]
[74]T70
244To his credit, the plaintiff has done further study and taken up work in a less onerous field of disability work with private clients. It is a suitable role for him: one-on-one with clients where he can choose the amount and type of work he does, and is not tied to a definite roster.
245The plaintiff candidly described being able to do this work: managing with limited driving and doing domestic tasks for clients with his ongoing back pain and restrictions; taking painkillers when necessary; using a hot water bottle on his back; having a break when walking patients; etc. While some lifting and manual handling is involved, the work is obviously less onerous than digging out trenches or cutting concrete with mechanical saws, tasks he was doing with the employer.[75]
[75]T73
Other activities
246The plaintiff is still a relatively young man who previously enjoyed keeping fit and engaging in a range of sporting activities and leisure pursuits.
247He is no longer able to play social soccer with his friends. He cannot run to keep fit and is unable to coach the community basketball team he was involved in pre-incident. His ability to actively play with his small children is also limited.
248He continues to have issues sleeping and going to sleep due to back pain. Intimate relations with his new wife are affected.
249As the plaintiff’s back pain has continued for over four years without significant improvement despite conservative treatment, I am satisfied his spinal impairment is permanent.
250Taking into account all the evidence, I am satisfied that the plaintiff has a serious spinal impairment.
251Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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