Follet v Domaine Chandon Australia Pty Ltd
[2014] VCC 917
•24 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02390
| NEIL RAYMOND FOLLETT | Plaintiff |
| v | |
| DOMAINE CHANDON AUSTRALIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 June 2014 | |
DATE OF JUDGMENT: | 24 June 2014 | |
CASE MAY BE CITED AS: | Follet v Domaine Chandon Australia Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 917 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar spine – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Seeman | Ryan Carlisle Thomas |
| For the Defendants | Mr J O’Brien | Thomson Geer Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the first defendant from 2005 to 2009 (“the period of employment”) in particular on 22 August 2005 (“the first date”) and 14 September 2009 (“the second date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lower back.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
8 I 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.
9 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
11 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
12 The plaintiff is presently aged sixty-nine, having been born in July 1944.
13 Having completed Year 10, the plaintiff studied photography. He then worked for a photographer for two years. For the next twelve years, he worked as a film technician. He then worked as a photographer for twenty seven years.
14 The plaintiff did mainly wedding and portrait work from his studio in Moorabbin for twenty years, having to close due to high overheads. Working from home was not as successful, given the lack of passing trade and advertising expenses.[3]
[3]T14
15 The plaintiff commenced work with the first defendant on 8 April 2002. His job involved running the process of producing sparkling wine. The task involved three separate processes which were heavy and arduous.
16 On or about the first date, the plaintiff suffered low back pain while trying to manoeuvre a 44-gallon drum (“the first incident”).
17 The plaintiff attended his general practitioner, had a few days off work and took some anti-inflammatories. He continued to suffer intermittent back pain from then on, particularly when doing his duties.
18 The plaintiff carried out modified duties after the first incident, with a lifting restriction of 17.5 kilograms imposed by Dr McIntosh. If the clinical notes did not mention attendances from then until the second incident, the plaintiff thought this must be the case.[4]
[4]T10
19 On the second date, the plaintiff suffered further injury to his back whilst working inside a filler machine on the tirage line. When he attempted to remove a heavy lid from the filler, he was leaning forward and at the same time twisting to the right, and he again suffered acute pain in the lower back (“the second incident”).
20 The plaintiff reported the second incident to his production manager, who told the plaintiff he always regarded that to be a two-man job.
21 The plaintiff attended his general practitioner at Lilydale and, after about a week, returned to work on further modified duties. About a month later, the plaintiff’s supervisor put him back on loading cages. After about 15 minutes doing that job, the plaintiff’s back began to ache and, after continuing for about four or five hours, he was unable to work.
22 After that occasion, the plaintiff was not required to perform anything other than modified duties and he continued to work on restricted duties for another eight or nine months.
23 During that time, the plaintiff had meetings with an occupational therapist and, on one occasion, with the production manager to discuss basically what he could and could not do in the future.
24 Apparently, the occupational therapist recommended consulting an occupational physician, Dr Chris Baker, who subsequently attended the premises. The plaintiff actually participated in Dr Baker’s inspection and walked around with him, explaining the various functions.
25 The plaintiff was subsequently asked to attend a meeting with the production manager and the occupational physician to discuss Dr Baker’s report. Dr Baker had indicated that he was unable to identify any area in which the plaintiff was able to work and perform all the tasks while working as a team with other operators.
26 The plaintiff subsequently attended a meeting in about July 2010, when he was handed a letter sending him home on full pay.
27 By letter dated 10 November 2010, the first defendant advised the plaintiff that Dr McIntosh and Dr Baker were both of the opinion that he was not able to perform his duties as an operator on the bottling line because the repetitive bending and lifting associated with that work was likely to aggravate his low back.
28 The plaintiff has not worked since, although he was eager to return to work with the first defendant.[5]
[5]T13
29 The first defendant set out that, regrettably, there were no alternative duties available, because all the other jobs for which the plaintiff was qualified also had key physical requirements outside his capacity, including lifting, bending, sitting and walking for sustained periods. In the circumstances, the first defendant advised it regretted it had decided to terminate the plaintiff’s employment, taking effect from 12 November 2010.
30 When he swore his first affidavit in December 2011, the plaintiff was suffering symptoms of back pain frequently throughout the day. He only had to bend slightly, such as when leaning over the sink, and he would feel pain after a couple of minutes.
31 The plaintiff previously enjoyed gardening, but any bending whatsoever brought on back pain after about a minute or so. Consequently, he only gardened for very short periods. He had real difficulty digging, and pulling up weeds produced a stabbing pain in the low back.
32 Every time the plaintiff stood up after sitting down for a while, he felt a sharp pain, which seemed to have moved from his back to his right hip and down the leg. Often when he went to stand, he would feel this pain and his leg would collapse under him. He was consequently conscious every time he moved out of a chair or from a sitting position to standing up.
33 Whilst he was reasonably comfortable driving, when the plaintiff got out of the car, he had back pain and it took a while for him to walk around before the pain would go. He consequently had not gone on any long drives since he was injured.
34 Lifting things weighing a few kilograms brought on back pain. Consequently, the plaintiff was hesitant to play with his grandchildren, and if he got down on the floor with them, he had awful difficulty standing up and again felt immediate pain.
35 The plaintiff woke at some stage or another every night with back pain, and when he woke in the morning, the pain was particularly bad when he went to stand up.
36 After sitting for a reasonably long period of time, the plaintiff often had shooting pains down his leg.
37 The plaintiff had to lift his leg up onto the bed in order to put his socks on, and he had difficulty washing his feet or the lower part of his body in the shower.
38 The plaintiff did not have much in the way of treatment. He took Panadeine and mainly tried to treat himself by avoiding activities he knew would aggravate the injury.
39 The plaintiff swore a further affidavit in March 2014.
40 The plaintiff’s back pain is much the same, and he tries to manage it as best he can by avoiding physical activities which cause pain. The plaintiff agreed that he only gets pain when lifting or bending over and there is no pain when walking.[6]
[6]T12
41 After sitting for more than two minutes, the plaintiff has an ache in his back.[7]
[7]T20
42 However, being the sole carer for his sick wife and effectively having to run the house, the plaintiff is forced to endure frequent pain every day. His wife suffers from an incurable infection of her hip which significantly affects her mobility. Helping her in and out of the car causes the plaintiff severe low back pain and he is forced to bend to help move her feet in and out of the car.
43 This severe pain occurs about five times a day, lasting about five minutes each time.
44 Lifting his wife, who can to a degree weight bear herself, causes severe back pain. The plaintiff cannot afford to get external assistance for these tasks and he receives a carer’s allowance. Thus, he is forced to do activities that he ordinarily would not do.
45 The following activities cause the plaintiff back pain:
(a) Leaning over the sink to brush his teeth.
(b) Gardening, although he tries to do a little. He avoids bending if he can and uses weedkiller instead of manually removing weeds. Mowing causes severe pain. He used to have a thriving vegetable garden which he has been unable to tend. He used to love gardening, but it is a now a chore which causes him pain.
(c) Standing up from being seated causes pain and he is forced to walk around until it passes.
(d) Bending to any degree causes pain, and the more he bends, the worse the pain.
(e) Getting out of a car.
(f) Getting out of bed.
(g) Cooking causes pain when he needs to bend to get pots and pans and he is also forced to hold heavy baking dishes.
(h) Washing up and being forced to bend at the hip to use the dishwasher or stand over the sink.
(i) Ironing.
(j) Sweeping, due to the posture.
(k) Shopping if he does a big shop, so he tries to avoid that.
(l) Vacuuming is one of the worst activities and he has not vacuumed the rear rooms for over a year.
(m) Lifting his three-year old grandchild is a struggle and that saddens him. He cannot remember the last time he could. He struggles to play with his grandchildren, who are aged three and five, generally because they do not understand his injury.
(n) Putting socks on in the morning is a struggle and he is forced to do that in a chair.
46 On several occasions recently, the plaintiff had ignored the pain barrier and continued gardening for up to an hour to complete necessary basic maintenance jobs around the house and garden. That had resulted in a continual sore back for up to a week.[8] Painkillers then only gave him temporary relief and even walking becomes painful. The plaintiff’s original actions of stopping gardening after only a few minutes seems to have been the correct action to alleviate the onset of chronic back pain.
[8]T23
47 The plaintiff occasionally takes the anti-inflammatory medication, Mobic. He does not like taking painkillers as they mask the pain.[9] He has largely ceased going to the doctor about his back because nothing has changed since the injury and he has simply learned to live with it.
[9]T24
48 The plaintiff is still a member of the Yarra Ranges Photographic Society and was the chief steward of an event run by the Club last year. He was the secretary of the Aviation Historical Society in 2012 and he writes articles for their publications.[10]
[10]T16
49 The plaintiff agreed the major consequence of his back injury was that his employment had been taken away from him because suitable duties were not available.[11]
[11]T17
50 The plaintiff would have worked until seventy had he not hurt his back. He wanted income and to be employed. He had also entered a pension scheme where the benefits included a bonus if he worked to seventy.[12]
[12]T23
51 The plaintiff would be unable to cope physically doing his old job as a wedding photographer as he would be unable to carry equipment and he would have difficulty bending and leaning over to help a bride arrange her dress.[13]
[13]T17
52 The plaintiff’s back pain is getting worse and more frequent. Virtually every time he bends over, doing things like emptying the dishwasher and filling the kettle, he gets mild pain.[14]
[14]T26
53 Treaters
54 Dr McIntosh, from Lilydale Medical Centre, assessed the plaintiff in relation to recurrent lumbar pain in March 2010, advising on the structure of the plaintiff’s return to work activities.
55 Dr McIntosh thought the plaintiff had early signs of degenerative disc disease and associated lumbar spondylosis affecting his lumbar spine, which had been the precipitating cause of his periodic episodes of employment-related back pain. He thought the return to work should be structured to exclude repetitive bending or lifting activities. He imposed a maximum weight on an individual non-repetitive basis of less than 17½ kilograms.
56 Dr Orgonas, of the same clinic, has seen the plaintiff since late 2010 for regular WorkCover certificates and check-ups.
57 Dr Orgonas thought the plaintiff had suffered a lower back strain type injury resulting in a reduced work capacity, but thought the plaintiff should be able to work in duties which did not involve regular bending, heavy lifting or standing in a fixed posture for longer times.
58 Dr Orgonas’ clinical notes were tendered.
59 Dr Orgonas reported in May 2013 that the plaintiff had suffered a soft tissue injury to his back in the first incident and had been suffering from mild pain whenever he moved his back, although not with walking. He thought the plaintiff could only perform light duties, but that might mean, however, at his age he would be unable to find suitable employment.
60 Dr Orgonas noted there was also an impact upon social, domestic and/or recreational activities, and the plaintiff was not able to perform activities which involved bending, twisting or lifting. He thought the plaintiff might benefit from physiotherapy or swimming to strengthen core muscles. The long-term prognosis was that the plaintiff’s symptoms were likely to get worse due to age-related degenerative changes.
61 Dr Orgonas reported in February 2014 that the plaintiff’s ability to retrain was limited due to his age, but he could perform certain light duties. The long-term prognosis had not changed and the plaintiff’s symptoms were likely to get worse due to age-related degenerative changes.
Medico-legal evidence
62 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in February 2012.
63 Mr Kossmann noted the plaintiff suffered two back injuries during work and his employment was terminated at the end of November 2010.
64 Mr Kossmann thought the plaintiff was suffering from low back pain which flared up intermittently. He thought the plaintiff’s pain issues would continue and he may experience good and bad days, and conservative treatment was required. Mr Kossmann could not exclude the plaintiff may suffer from a catastrophic disc prolapse which may require surgery.
65 Mr Kossmann thought restrictions in employment-related activities would continue for the foreseeable future. He considered the plaintiff had no capacity to perform his pre-injury duties and that was permanent.
66 Mr Kossmann thought the plaintiff had the capacity to perform suitable employment. He could work in an area where he was not forced to lift heavy items or continually required to bend or twist his body.
67 Mr Kossmann thought the plaintiff should undergo a vocational assessment to find out which employment would suit him best and he should start on a graduated return with four hours a day over a period of four weeks, and then he should increase this to full-time. Mr Kossmann considered the partial incapacity was permanent.
68 Mr Kossmann noted the back injury had had an impact on the plaintiff’s social, domestic and recreational activities, with problems bending and twisting his body, and heavy lifting. There would be difficulty walking on hard surfaces without proper footwear.
69 Mr Kossmann thought maintenance therapy was appropriate in the form of physiotherapy, hydrotherapy and the plaintiff should try a course of acupuncture.
70 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff in April 2012. The plaintiff told him he does not have constant pain, but has quite acute pain when bending forward. He reported a spasm two months earlier when getting out of his car and he could hardly move. That lasted for about two weeks.
71 On examination, there was moderate limitation of lumbar movements, straight leg raising to 70 degrees bilaterally and no neurological abnormality.
72 Mr Brearley noted the CT report of the scan of September 2009.
73 Mr Brearley diagnosed mechanical lumbar back pain due to musculoligamentous injury of the lumbosacral spine and probable aggravation of age-related degenerative changes in the lower back. He noted the radiology report gave no mention of degeneration, but undoubtedly, at the age of sixty-seven, it certainly would be present and Mr Brearley believed that would be one of the reasons why the plaintiff’s back pain had been ongoing.
74 Mr Brearley thought the plaintiff was quite unable to do his former work with the winery, nor was he fit to do any manual work and that incapacity was permanent.
75 Taking into account the plaintiff’s age, his ongoing back problems and his work experience, there was no work which would be suitable for him at his age. Theoretically, Mr Brearley thought the plaintiff could do some administrative or office type work, but given his ongoing back injury and his age of sixty-seven, there was no possibility whatsoever any employer would be prepared to offer him paid employment. Accordingly, he had no current work capacity.
76 Further, the plaintiff was limited in what he could do domestically. His wife is a total invalid and he had to do all the domestic work, but it was most difficult for him.
77 Mr Brearley thought the plaintiff needed ongoing conservative treatment by means of physiotherapy, anti-inflammatories and analgesics when he had exacerbations. He thought the plaintiff’s condition had stabilised.
78 Defendant’s medical evidence
79 Dr Chris Baker inspected visited the workplace on 25 May 2010.
80 Dr Baker identified problems experienced by the plaintiff on the line and thought various tasks were inappropriate for him.
81 Dr Baker considered the plaintiff was likely to be suffering from degenerative changes in his lower lumbar spine, and with aging and the passage of time, it was likely to progress. He thought tasks involving repetitive bending, lifting and twisting and working at speed were causing the plaintiff problems, and they would continue to do so in the future so he should not attempt those as it was likely to aggravate his condition.
82 Dr Baker advised that unfortunately he was not able to identify any area where the plaintiff was able to work and do all the tasks with other operators, working as a member of a team. The plaintiff had always had some restrictions. He was able to stand for limited periods in the one position, but found it was better if he moved about and changed position.
83 Dr Baker thought the plaintiff would benefit from undertaking a regular self-managed physical exercise program, with an intention to improve his core stability, which would benefit him at home as well as at work and hopefully improve his level of functioning.
84 Dr Baker examined the plaintiff in October 2010.
85 On examination, Dr Baker noted there was no evidence of exaggeration or abnormal illness behaviour. There was limited flexion and a reasonable range of movement in the rotation and lateral flexion of the spine.
86 Dr Baker noted the plaintiff told him on the worksite assessment that he stated he could perform more operations and run the disgorging line and triage line.
87 From the examination, there was no evidence of persistent nerve root compromise and Dr Baker thought the plaintiff was suffering with symptomatic changes in his lumbar spine due to degenerative changes, but with certain activities, there was a work-related contribution.
88 Dr Baker considered the principal problem with the plaintiff’s day-to-day activities was whether he was required to undertake repetitive bending, twisting and working at speed, or required to maintain a fixed flex posture for long periods of time.
89 Dr Baker noted the plaintiff had offered to undertake a range of tasks, but those offers had not been taken up by management.
90 Mr Barclay Reid, general surgeon, examined the plaintiff in January 2011.
91 The plaintiff told him he had no lower back pain at rest and had some pain when getting up from a sitting position after prolonged sitting. The pain went away after he began to move. He had pain also if his back was stressed, such as gardening after 10 minutes. Any repetitive bending caused pain.
92 Generally, at that stage, the plaintiff was not taking any medication, but had taken Mobic for a flare-up.
93 Mr Reid noted the plaintiff’s main outside activity was gardening and housework, which he did with reluctance, and he spent most of his time on the computer researching and writing.
94 On examination, there was no tenderness in the lower lumbar spine. There was some restriction of movement. Mr Reid noted, while there were no abnormalities found or physical signs, it was to be remembered the plaintiff’s symptoms arose on repetitive movements with weight bearing and it was not possible to examine that aspect satisfactorily in the consulting room.
95 Mr Reid thought the plaintiff had a musculoligamentous injury of the lower back caused by the repetitive stress on his back muscles on his return to work.
96 Mr Reid thought the plaintiff had almost completely recovered from the injury of the second date on the basis of normal clinical findings. However, there was likelihood he had developed symptoms with repetitive lifting and bending.
97 Mr Reid thought the sum total of the plaintiff’s age and general condition of his low back musculature, especially in relation to his age, would make it inadvisable for him to resume his pre-injury work or do similar work.
98 Mr Reid considered the plaintiff would be fit to do a job in a sitting position or in a supervisory capacity in his previous job or a similar job, or in work not requiring repeated bending or lifting over 5 kilograms.
99 Mr Reid noted the plaintiff would like to be considered for re-employment in suitable employment through a job-seeking organisation. He thought the plaintiff would now be capable of working where there was no repetitive bending or lifting over 5 kilograms. He noted, however, the evidence is in fact that the plaintiff had a recurrence of pain within hours of beginning one of the aspects of his normal duties which required bending repetitively.
100 Mr Reid re-examined the plaintiff in April 2013.
101 WorkCover payments were ceased in March 2012 on the basis the plaintiff had recovered and he went on a part pension as he had reached sixty-seven years of age.
102 The plaintiff reported an ache in his back if he sat more than two minutes, if he lifted more than 2 kilograms or if he bent down in his garden for two minutes. He got pain in his back if he got up from a sitting position, having sat for more than an hour. However, that pain would go away within five minutes if he moved around. He had no sciatic pain.
103 The plaintiff felt that altogether he was now worse than when last seen. He avoided any back problems by stopping the activity he was indulging in with the first twinge of pain. Though he had an ache in the back after two minutes sitting, he was able to continue sitting for about an hour. He could walk indefinitely and had no pain. Mr Reid noted the plaintiff was able to undertake activities of daily living on his own.
104 The plaintiff took Mobic when needed.
105 On examination, the plaintiff’s back showed no deformities and no tenderness. There was some restricted movement.
106 Mr Reid thought the musculoligamentous component had now probably resolved, but the damage to the facet joints was likely to continue, super-imposed on age-related changes. He thought the plaintiff’s symptoms were about the same as when last seen, but the range of movement in the lower back was diminished mildly. Mr Reid felt that was due to the gradual process of age-related degenerative change, rather than a worsening of the back injury, and he thought the effects of the back injury at work were the same as when last seen.
107 Mr Reid thought the short-term prognosis was that the plaintiff would remain in the same condition as he is now and, in the long term, there is likely to be a gradual deterioration in his condition with increasing back pain and a reduction in range of movement. This would be due to gradually advancing degenerative change and not due to the musculoligamentous back injury the plaintiff sustained at work.
108 Mr Reid noted the plaintiff stated he hated to take any form of medication.
109 The plaintiff told Mr Reid he filled in his day with a reduced amount of gardening, spending time with his two grandchildren, indulging in his hobbies of photography, aviation research and writing about those subjects.
110 The plaintiff was limited in his gardening and was unable to lift his grandchildren or get on the floor to play with them. When sitting at the computer for more than about half an hour, he gets a twinge of pain and gets up and walks around, and then can go back on the computer.
111 Mr Reid noted the plaintiff’s problems looking after his wife and that his condition made it difficult for him to help her get from a sitting to a standing position, and for him to dry her feet. He found it quite difficult doing the housework.
112 Mr Reid noted the findings on the plaintiff’s hands and wrists indicated it was unlikely he was carrying out any strenuous physical activities or hobbies.
113 Mr Timothy Gale, surgeon, examined the plaintiff in June 2011 for the purposes of an AMA assessment.
114 On examination, there was no kyphoscoliotic deformity, no tenderness or palpable abnormality and a good range of pain free low back movement, consistent with the plaintiff’s age. Neurological examination was normal.
115 Mr Gale thought the plaintiff was likely to have suffered a musculoligamentous strain in the second incident. It could possibly be considered that was a temporary exacerbation of a previous back injury in 2003. Mr Gale thought the plaintiff does continue to suffer from some minor symptoms relating to either incident and he was likely to have some minor long-term discomfort in the lower back that might have some relationship to his work. Mr Gale thought the impairment was likely to have stabilised.
116 Dr Malcolm Brown, occupational physician, examined the plaintiff in April 2012.
117 Dr Brown thought the plaintiff presented with mild, uncomplicated lower back pain with a couple of exacerbations at work in recent years. He thought the plaintiff’s condition was prominently constitutional in nature with some temporary aggravation from work.
118 Dr Brown thought the plaintiff has a current work capacity. He noted modified pre-injury duties were not available, but the plaintiff could do alternative duties. He thought the plaintiff had the capacity to do tasks which did not involve regular bending, heavy lifting or standing in a fixed position throughout the work shift.
119 Based on the clinical findings, the stated radiological results and the clinical history, Dr Brown thought it unlikely that employment continued to materially contribute to any current back symptoms.
120 In summary, Dr Brown noted the plaintiff presented with mild, uncomplicated lower back pain. There were no positive findings on physical examination. He was managing without medication and there were apparently no significant findings on radiological investigation.
121 Dr Brown thought that was quite a typical picture of uncomplicated back pain widespread in the general population, regardless of occupational factors. He noted there was no evidence of a serious spinal injury arising from work, but the plaintiff does continue to have mild symptoms.
122 Dr Brown considered, in the absence of any radiological evidence of significant pathology, with mild symptoms not requiring analgesics and the lack of positive findings on physical examination, any effects from the plaintiff’s employment had long ceased.
123 Dr Brown thought the plaintiff did not require any treatment, but should be encouraged to consider an active exercise program. He did not believe the plaintiff’s current condition was materially contributed to by the claimed injury.
Radiology
124 A CT scan of the plaintiff’s lumbar spine was organised in September 2009. It was reported it was a normal study.
Vocational evidence
125 An NES vocational assessment provided a report in March 2011 set out suitable employment options in order of priority were product assembler, machine operator, process worker, inquiry customer service – information officer, tourist information officer, rental sales person, ticket seller, retain sales assistant and other positions identified as suitable upon the commencement of job-seeking assistance.
Overview
126 There is no dispute the plaintiff suffered an injury to his lumbar spine during the course of his employment, in particular on the second date.
127 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[15] such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[15][2006] VSCA 171
128 By letter dated 30 September 2011, CGU advised the plaintiff that a Medical Panel had assessed him as suffering a permanent impairment of 5 per cent relating to his back in relation to an injury on 14 September 2009.
129 Whilst there is not a lot of pathology, with the 2009 MRI reported as a normal study,[16] the consensus of medical opinion is that the plaintiff suffered a musculoligamentous injury of the lumbosacral spine and probable aggravation of age-related degenerative changes at L4-5 as a result of his work duties.
[16]T29
130 Dr Brown is the only medical practitioner who considers any work related aggravation has ceased and that the plaintiff’s ongoing problems are age related.
Credit
131 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon (“Haden”):[17]
“… 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.”
[17](2010) 31 VR 1 at paragraph [12]
132 It was conceded by counsel for the defendant that the plaintiff was a decent, honest man whose credit was not in issue.[18] In my view, the plaintiff is somewhat of a stoic having done his best to get on with his life following his back injury.
[18]T28
133 Whilst no film was shown, counsel for the defendant admitted there was five minutes footage of the plaintiff sitting in a car in September 2012.[19]
[19]T28
134 This is essentially a range case where it is submitted, on the defendants’ behalf, that the consequences of the plaintiff’s back impairment are not serious.
135 As Maxwell P said in Haden:
“The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).”
136 Since the second date, the plaintiff has continued to experience back pain when bending or lifting. Prolonged postures also aggravate his back pain. That pain is worsening.
137 At times, particularly after activity, the plaintiff’s back pain is severe and he needs to rest and take Mobic. No further treatment has been suggested, the plaintiff having undertaken physiotherapy in the past.
138 The plaintiff’s back pain results in significant restrictions in relation to activities involving bending, lifting and twisting.
139 This is a particularly difficult situation for the plaintiff who is the carer of his invalid wife. In that role, he is required to move her wife and attend to her personal care at all times.
140 Further, the plaintiff is responsible for the bulk of the housework and related tasks. As such, he is forced to do things every day which cause him pain as he outlined in his affidavit.[20] He is unable to do heavier household tasks such as vacuuming and he can no longer do the same level of home maintenance he carried out prior to injury.
[20]T31
141 The plaintiff is also restricted in his ability to play with and lift his grandchildren who are aged three and five.
142 The plaintiff no longer enjoys gardening and tending his vegetable garden. Even short periods spent in the garden result in significantly increased back pain.
143 The plaintiff has problems sleeping due to back pain.
144 As Maxwell P said in Haden:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
145 The plaintiff had stop work because of his back pain. Had he not been injured, he had intended to work to seventy. I accept the plaintiff was keen to return to work as Dr Baker indicated. However, the plaintiff’s employment was terminated as there were no suitable duties available within his restrictions.
146 The consensus of medical opinion is to this effect with Mr Brearley gong further stating the plaintiff has no capacity for work.
147 In my view, the plaintiff would also be unable to resume work as a portrait photographer as he could not lift and carry heavy equipment no organise the set up of photos due to his difficulty bending and leaning forward.
148 Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s lumbar impairment meet the statutory definition of “serious”.
149 As the plaintiff’s back pain and restrictions have continued without improvement for in excess of five years, I am satisfied his impairment is permanent.
150 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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