Flook v Victorian WorkCover Authority
[2020] VCC 886
•1 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-05689
| TRISTAN FLOOK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 June 2020 | |
DATE OF JUDGMENT: | 1 July 2020 | |
CASE MAY BE CITED AS: | Flook v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 886 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury – lumbar spine – whether aggravation injury – whether injury permanent – leave sought for pain and suffering.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s.325
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Petkovski v Galletti [1994] 1 VR 436; Stijepic v One Force Group Aust Pty Ltd and Victorian WorkCover Authority [2009] VSCA 181; Hooley v Transport Accident Commission [2019] VSCA 263.
Judgment:Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Mr G Clark | Hounslow Lawyers |
| For the Defendant | Ms R Kaye | Minter Ellison |
HIS HONOUR:
1 On 6 October 2014, Mr Flook injured his lower back while manoeuvring a table stacked with sheet metal in the course of his employment with Design Sheet Metal (“the incident”).
2 Mr Flook was born in 1992. He left school at age 16 and obtained a qualification as a boilermaker. He was 24 years of age at the time of the incident and is now 28 years of age.
3 Following the incident Mr Flook was transported by ambulance to the Maroondah Hospital and discharged several hours later. At hospital he was noted to have difficulty mobilising, and pain was recorded as 8/10.[1] Thereafter he was off work for approximately two weeks. He then sought treatment from a GP at the Macfarlane Clinic with a complaint of low back pain and pain into the right hamstring area.[2]
[1]Defendant’s Court Book (“DCB”) 85
[2]Plaintiff’s Court Book (“PCB”) 117–118
4 Mr Flook then returned to work with Design Sheet Metal with ongoing back pain and flare-up before his employment was terminated in approximately mid-December 2014.
5 After the termination of his employment with Design Sheet Metal, Mr Flook had various other manual employments until some time in early 2018 when he obtained employment with Bombardier as a manufacturing trade employee,[3] which employment involves him working full-time, plus overtime, doing mainly welding duties.
[3]DCB 182
6 Mr Flook has had ongoing low back and right leg pain since the incident. He says that the symptoms restrict him in a range of domestic, social and recreational activities and that he has difficulty coping overall[4] in his current employment.
[4]Transcript (“T”) 44, Line (“L”) 4
The Application
7 This is a “serious injury” application in respect to a workplace injury. The principles in respect to such an application are well known and are not in dispute. Mr Flook alleges that he has suffered a “permanent serious impairment or loss of a body function”, namely an injury to the lumbar spine. The main issues to be decided in the application are:
· What is the nature and extent of the back injury suffered by Mr Flook?
· Is the injury an aggravation of a pre-existing back condition?
· Is the compensable injury to the back “permanent”?
· Does the compensable injury meet the test of “very considerable” as required by s325 of the Workplace Injury Rehabilitation and Compensation Act 2013?
Was Mr Flook a credible witness?
8 Before dealing with the issues as identified for determination, it is convenient to briefly deal with the credit of Mr Flook. As has been said many times before, in cases of the present kind the credit of the applicant will often be critically important.[5] In this case there is no real attack upon the plaintiff’s credit. To the extent necessary, I will expand upon the issue of credit in these reasons, but I found him to be an impressive and honest witness. He gave answers in a straightforward and appropriate manner, including making concessions as appropriate.[6] He presented to me as a sensible young man who in no way attempted to embellish or exaggerate his pain or consequences from the low back injury. With one exception, no medical witness expressed any concern regarding the plaintiff’s reliability as an historian or presentation on examination.[7]
[5]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
[6]See as an example T42, L21–24
[7]The one exception is Dr David Barton, occupational physician, in a report dated 20 November 2015 at page 3 and his comment that “The worker has been supported to adopt and maintain a disabled role for an inappropriately long period of time.”
What is the nature and extent of the back injury suffered by Mr Flook?
9 At the commencement of the hearing I indicated to defence counsel that it seemed to me that there was no real issue as to compensable injury. Ms Kaye, on behalf of the defendant, conceded that there was no issue as to compensable injury. That was an appropriate concession to make, and enables me to briefly deal with the medical material in respect to identification of the compensable injury. Indeed, in circumstances where there is no dispute that the plaintiff suffered a back injury as a consequence of the incident, detailed analysis of the medical evidence is unnecessary.
10 A CT scan of the plaintiff’s lumbar spine was performed on 6 May 2015.[8] The report of that scan describes a “small central posterior herniation of the L5‑S1 intervertebral disc with a little deformity of the adjacent thecal sac”. MRI scanning of the plaintiff’s lumbar spine was performed on 6 August 2015 and again on 22 February 2018. The report of the first MRI scan comments on disc space narrowing with loss of T2 signal at L5‑S1 and describes the disc as “mildly protruding”. No radicular compression or displacement was reported.[9] The February 2018 MRI scan reports “narrowing of the L5‑S1 disc”. It is commented that “no radicular compression or displacement is seen which would explain radicular symptoms”.[10]
[8]DCB 22
[9]PCB 55
[10]PCB 57
11 Mr Flook was seen for medico-legal purposes by Mr Wilde, orthopaedic surgeon. In a report of 25 March 2020[11] he conducted a physical examination of the plaintiff and had available radiology or the reports of the radiology. On examination he observed spasm, which of course is an objective finding. He opines that Mr Flook suffered a lumbosacral disc injury without nerve compression.
[11]PCB 72
12 Mr Dooley, orthopaedic surgeon, examined Mr Flook at the request of the defendant. In a report dated 24 March 2020[12] he notes that he did not have the radiological investigations for review but appears to have had the reports of the radiology, and he notes the CT and MRI scan reports. Mr Dooley opines that Mr Flook “sustained a soft tissue injury to his lumbar spine that has involved some aggravation of this underlying degenerative disc disease”. He found no clinical evidence of objective neurological deficit but “nerve root tension signs on the right”.
[12]DCB 11
13 The short point is that both Mr Wilde and Mr Dooley note that in the incident the plaintiff suffered injury to his lumbar spine. At the end of the day there is not much to separate their diagnosis and opinion.
14 There are other medico-legal assessments of Mr Flook which were added with great enthusiasm by Mr Monti to the plaintiff’s court book. Those are the reports of Dr Dupuche dated 7 March 2015; Dr Panjratan, orthopaedic surgeon, dated 22 June and 21 September 2015; Dr Malcolm Brown, occupational physician, dated 28 September 2016; and Mr Gerald Moran, orthopaedic surgeon, dated 30 October 2017. Those reports are broadly in agreement with the diagnosis and opinion of Mr Wilde and Mr Dooley, namely that the plaintiff suffered compensable injury. They are otherwise of limited assistance, in so far as some examiners did not have available the radiology and of course they are now to some extent of historical interest only when determining this application, but what they do confirm is that the plaintiff has had ongoing complaints in his lumbar spine referable to the incident.
15 The treating GP is now Dr Janovic. He has been treating Mr Flook since at least 7 May 2015.[13] He has provided several reports setting out the history of treatment and his opinion regarding Mr Flook’s work capacity. In his report of 14 May 2020[14] he provides a diagnosis of “chronic pain syndrome secondary to work related low back injury”. This is not an application whereby either party seeks to rely upon psychological or psychiatric evidence. The medical evidence does not suggest that Mr Flook is suffering some form of psychologically-based pain syndrome. Dr Janovic notes that at one point in time Mr Flook was frustrated about his inability to return to the workplace and was referred to a psychologist for what the doctor felt was a reactive anxiety depression state, with one consultation taking place with a psychologist. That is the extent of any comment regarding any “anxiety state”. I accept Mr Monti’s submission that where Dr Janovic diagnoses a “chronic pain syndrome secondary to work related low back injury”[15] the doctor is expressing an opinion that the plaintiff is suffering from chronic back pain as a result of the work related low back injury, which is an organic condition.
[13]PCB 63
[14]PCB 67
[15]PCB 68
16 Therefore, the totality of the medical evidence accepts that Mr Flook has suffered injury to the lumbar spine which is organically based. Whether it is described in the language used by Mr Wilde as a lumbosacral disc injury or in the language used by Mr Dooley as a soft tissue injury involving some aggravation of underlying degenerative disc disease is really of no consequence.
Is the injury an aggravation of a pre-existing back condition?
17 The next issue I must determine is whether or not the compensable back injury is an aggravation of a pre-existing back condition. This issue was flagged by Ms Kaye in opening address as “a slight Petkovski v Galletti[16] analysis in relation to prior lower back pain suffered by the plaintiff”.
[16][1994] 1 VR 436
18 The plaintiff’s affidavit evidence[17] at paragraph 7 states that he had suffered some backache over the years prior to commencing work with Design Sheet Metal. He states that he had received some intermittent treatment but that his backache had settled when he commenced work with Design Sheet Metal and he considered himself in pretty good shape. He was cross-examined about that by Ms Kaye.[18] However, in respect to any low back problems prior to October 2014, he described the pain as “completely different” after the incident. In re‑examination he elaborated[19] and described any previous episodes of low back pain as “just a normal muscle pain. ... I’d take some Panadol and went to the chiro and it would go away. I was feeling fine.”[20] He was asked to compare that pain/with the pain he has had since the accident. His answer, which I accept, was that since the incident “I experience the nerve pain every day, the sciatic pain, and the flare ups that I get. It’s completely different. ... [I]t’s higher. Much higher. Much higher.”[21]
[17]PCB 19
[18]T40–41
[19]T52, L13
[20]T52, L15‑17
[21]T52, L20–21
19 The defendant cross-examined Mr Flook about entries from the Macfarlane Clinic in August 2013 and April 2014 in respect to prior episodes of low back pain.[22] Those entries are limited and do not speak of any significant problems with the lumbar spine before the incident and are consistent with the plaintiff’s description of normal muscle pain associated with undertaking manual work or physical recreational activity. In any event, the history of pre-existing problems, such as existed, has been disclosed to medical examiners.
[22]DCB 117
20 Dr Dupuche stated there was nothing in this past history that would contribute to the rupture of the disc, and degenerative processes are not likely at age 22 years.[23]
[23]PCB 89, noting that Dr Dupuche did not have available radiology, and ultimately I do not accept there was a rupture of the disc
21 Dr Panjratan had the notes upon which Mr Flook was cross-examined. Ultimately he opined that the plaintiff’s then current incapacity for work results from and is materially contributed to by the claimed injury.[24] He repeated that opinion in a supplementary report of 21 September 2015, having had available the early MRI scan.[25]
[24]PCB 101
[25]PCB 106
22 Dr Malcolm Brown in the report of 28 September 2016 does not specifically deal with the plaintiff’s past history, although he was provided with enclosures which must have alerted him to it. He noted that in the incident Mr Flook suffered “a quite significant episode of low back pain”[26] and that his current condition was then still materially contributed to by the claimed injury.
[26]PCB 108
23 Mr Moran in his report of 30 October 2017 also had the enclosures dealing with earlier episodes of back pain. His report appears primarily directed towards an impairment assessment and is of limited assistance. However, he was ultimately prepared to ascribe a work related whole person impairment and described the injury as disc derangement at L5‑S1 with a mild disc prolapse on that level.
24 Mr Wilde took a history that leading up to the incident Mr Flook had experienced episodes of back discomfort and pain which he attributed to his work as a boilermaker. He recorded Mr Flook experiencing discomfort and aching across his back but that the symptoms never kept him off work, but occasionally he visited a chiropractor which he paid for himself.[27] He goes on to state that on a background of low-grade discomfort Mr Flook injured his back at work in the incident being the lumbosacral disc injury.
[27]PCB 73
25 Mr Dooley did not get a specific history of pre-existing low back pain, but he did have available the GP notes of 2 April 2014.[28] He states that in his view this would indicate that Mr Flook was symptomatic from the underlying degenerative disc disease at the lumbosacral level of the spine. I take his comment to mean that Mr Flook was symptomatic when he saw the doctor on 2 April 2014. However, there is no evidence of any ongoing symptoms of any consequence before the incident. In any event, Mr Dooley opines that the plaintiff suffered a soft tissue injury, which would be a discrete injury, as well as the aggravation of underlying degenerative disc disease.
[28]DCB 14
26 I find that Mr Flook from time to time was symptomatic in his lumbar spine prior to the incident, consistent with the heavy nature of his employment as a sheet metal worker and his active lifestyle. Therefore, there is evidence of a pre-existing condition affecting the lumbar spine. However, there is no evidence that he was unable to work or unable to engage in his work as a boilermaker / sheet metal worker or in his domestic and sporting interests prior to the incident. I find that the compensable injury is the aggravation of the underlying condition, but I am satisfied that the current symptoms, restrictions and consequences are as a consequence of such aggravation and not contributed to by any pre-existing condition.
Is Mr Flook’s condition permanent?
27 The defendant raised an argument in respect to whether the condition suffered by Mr Flook is permanent. Of course his injury must be permanent in order to satisfy the statutory test. The issue of permanency arises mainly from the comments of Mr Wilde in his report of 25 March 2020. He was asked a question regarding prognosis[29] and answered it as follows:
“The prognosis is fair as he is continuing to improve, he is able to maintain regular employment and if he continues the current exercise regimen in a further one to two years the lumbosacral back injury should become a minimal problem for him.”
[29]PCB 77
28 Pausing there, Ms Kaye described this comment by Mr Wilde as “very significant evidence” on this issue of permanence. It was submitted that Mr Flook continues to improve and that he should improve to a point where he will only have a “minimal problem”. However, Mr Wilde’s report should be considered as a whole and also in the context of his supplementary report of 22 April 2020. As noted, he had described the prognosis as “fair”. In the more recent report he states that:
“Mr Flook will continue to experience persistent fluctuating mechanical lumbar pain in the foreseeable future. This means he will be restricted for full, unrestricted duties as a boilermaker for the foreseeable future.”
29 It is relevant that we are dealing with an injury suffered in October 2014. Mr Flook has had ongoing, fluctuating symptoms in his lumbar spine. He has had considerable conservative treatment. True it is that Mr Wilde describes the back injury as one which should become a minimal problem for him, but he does not go so far as saying there will be a complete recovery. As noted, he describes the prognosis as “fair”. Whatever he meant by a “minimal problem” must be understood by his further opinion that Mr Flook will continue to experience persistent fluctuating mechanical lumbar pain for the foreseeable future with restrictions for full duties as a boilermaker. Taken as a whole, I do not accept that Mr Wilde’s opinion indicates that the plaintiff’s back condition is not permanent.
30 The other issue in respect to permanency is the suggestion by the treating physiotherapist, Luke Androulakis, that Mr Flook attend a formal pain management course.[30] However, as I understand that evidence, it is not for treatment designed to cure the plaintiff’s condition. It is a suggestion in the context of considerable physiotherapy treatment described by the physiotherapist as having exhausted all treatment means. In any event, the physiotherapist opines that he expects Mr Flook will have flare-ups of his low back pain. He notes that Mr Flook and his workplace need to work together to control and manage his pain. There is no suggestion in his material that the pain management referral is for any purpose other than assisting the plaintiff to manage his pain. The fact of that suggested referral does not support an argument that Mr Flook’s condition is not permanent.
[30]PCB 83
Does the compensable injury meet the test of “very considerable”?
31 The real issue in this application is a narrow but important issue, namely whether Mr Flook’s compensable back injury meets the statutory test of “very considerable”, noting that he seeks leave to commence a proceeding for pain and suffering. As conceded by Ms Kaye at the outset, the issues fall to be determined primarily by what is often referred to as a “range case”. The defence position is broadly that the plaintiff is able to continue to work full-time as a sheet metal worker in a “real” job. The defendant submits that the plaintiff is having limited treatment, takes limited medication, and is able to engage in a wide range of domestic, social and recreational activities. The defendant submits that the facts of this case are not dissimilar to the facts of Stijepic v One Force Group Aust Pty Ltd and Victorian WorkCover Authority[31] and as such I should find that the plaintiff’s impairment consequences from compensable injury do not meet the test of “very considerable”.
[31][2009] VSCA 181
32 This is, in my opinion, a borderline serious injury application. There is some force in the defendant’s submissions that the plaintiff is able to engage in a wide range of activity and in particular his ongoing employment with Bombardier including undertaking considerable overtime as demonstrated by the tendered payslips.
33 I have earlier referred to my findings regarding the credit of Mr Flook. Those findings are important because a considerable element of his case is based around his pain and the extent of it. I accept his evidence that he has had ongoing fluctuating pain in his lumbar spine and right leg since the incident. In particular I accept his evidence that the pain on a scale of 1 to 10, with 10 being the worst pain, gets down to 3 out of 10 when he is not working and resting up and not doing anything.[32] I further accept his evidence that when he is active it is “probably about 7 or 8”.[33] Mr Flook is still only 28 years of age, which of course is a relevant consideration.[34]
[32]T29, L30
[33]T50, L10
[34]Hooley v Transport Accident Commission [2019] VSCA 263 at paragraph 51
34 In the context of accepting that Mr Flook has a compensable lumbar spine injury which produces fluctuating pain ranging from 3/10 to 7–8/10, I accept that he has the following consequences:
· The need for regular ongoing physiotherapy treatment, being approximately 38 visits to the physiotherapist in 2019/early 2020;
· The need for regular ongoing painkilling medication;[35]
[35]T45
· Ongoing symptoms significant enough for referral for neurosurgical assessment;
· Interference or difficulty with a range of domestic and recreational activity as described in the plaintiff’s affidavit material and viva voce evidence, in particular snowboarding, wakeboarding, gymnasium attendance, extended travel, bike riding, housework and his personal relationship with his partner;
· Increased pain with physical activity and in particular with his employment in circumstances where the plaintiff is a manual worker / boilermaker by trade, with a partner and a baby on the way, and notwithstanding the fluctuating pain through his current employment he has no choice but to work.[36]
[36]T44, L6
35 Having formed a positive view of Mr Flook, I find that he is stoic[37] and is working notwithstanding increased symptoms in such employment.
[37]Hooley v Transport Accident Commission (op cit) at paragraph 49
36 I accept that there is no one “big ticket” item that Mr Flook relies on. I am not satisfied that his back injury causes significant interference with his sleep or his social life. However, I am satisfied that the level of his pain, aggravated by his work, is such that he is working in difficulty and does have restrictions for engaging in recreational activities that were pleasurable for him such as snowboarding, wakeboarding, and going to the gymnasium. The defendant tendered a very short video of Mr Flook attending a gymnasium.[38] I was informed that video was posted to Facebook on 24 June 2018. There was nothing in that video which was inconsistent with the plaintiff’s sworn evidence about his attendance at that gym. I accept his evidence that it is in fact depicting the type of activity that he would like to engage in but is now restricted from doing because of his injury. I do not accept the submission that was attempted to be advanced by Mr Monti that Mr Flook currently has a sympathetic employer. I do accept that he is at a workplace that has lifting assistance available to all workers and as such that is of some benefit to him. I accept the opinions in particular of his treating GP and Mr Wilde that he will continue to have restrictions for full and unrestricted work in his trade and that his current employment causes him to suffer increased pain which is a relevant pain and suffering consideration for a young person.
[38]Exhibit D1
37 I am satisfied that when all of these matters are taken into account that Mr Flook does have a permanent lumbar spine condition which produces “very considerable” consequences to him, and I grant leave to commence a proceeding for pain and suffering damages and make other appropriate orders.
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