Fullarton v VWA
[2019] VCC 1130
•30 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04005
| GARY FULLARTON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 July 2019 | |
DATE OF JUDGMENT: | 30 July 2019 | |
CASE MAY BE CITED AS: | Fullarton v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1130 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering – causation – injury to lumbar spine – whether disentanglement required
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (2012) 34 VR 309; De Agostino v Leatch [2011] VSCA 249;
Rowe v Transport Accident Commission (2017) MVR 195
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC with Mr D O’Brien | Arnold Thomas & Becker |
| For the Defendant | Mr J Batten with Ms S Gold | Russell Kennedy |
HER HONOUR:
1 The plaintiff applies for leave under section 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) to bring proceedings to recover damages for pain and suffering only in respect of an injury to the lumbar spine suffered in October 2012 (or throughout the course of employment) while working for Southern Freight Management Pty Ltd (‘Southern Freight’) as a truck driver.[1]
[1]The plaintiff abandoned the claim under sub-paragraph (c) at the commencement of the hearing.
Issues
2 The issue in this case is not whether the plaintiff has a “serious injury”[2], but whether his employment with Southern Freight caused the injury.
[2]Within the meaning of s 134AB(37) Accident Compensation Act 1985 (Vic).
3 The defendant says that even if an incident involved injury to the lumbar spine is found to have occurred in October 2012, according to the histories given to doctors, the sequelae of that incident were short-lived. In addition, the plaintiff did not report any injury to his employer, nor see any doctors with complaints of back pain, nor take any medication for back pain, nor take any time off for reasons connected with back pain until July 2014, nor make any claim in respect of that injury until August 2014. By that time, the plaintiff had resigned from his employment with Southern Freight[3] and had worked as a truck driver for other employers including Robin Fahey Haulage Pty Ltd[4] (‘Robin Fahey Haulage’); Logistics 1 Pty Ltd[5] (‘Logistics 1’); Cartage Australia[6]; and Gartner Transport Pty Ltd[7] (‘Gartners’). He continued to perform normal duties until he ceased all employment.
[3]In about April/May 2013 (see plaintiff’s affidavit sworn 11 May 2018 (‘the plaintiff’s first affidavit’) and T21.20).
[4]For approximately three or four months in 2013 (see T23.23).
[5]Between 18 October 2013 and May 2014 (see the plaintiff’s first affidavit and T23.27).
[6]For about two weeks in around May or June 2014 (see T26.24 - T27.15)
[7]Between May 2014 and July 2014 (see the plaintiff’s first affidavit).
4 The defendant relies on the medical evidence to the effect that, when finally seen by various doctors after July 2014, the radiology revealed longstanding degenerative changes. Accordingly, the defendant says that the appropriate characterisation of the October 2012 incident is one of a short-term exacerbation of a longstanding underlying condition, and that the plaintiff has not discharged the onus he bears to establish that the pain and suffering he now suffers was caused by his employment with Southern Freight.
The hearing
5 The plaintiff gave evidence at the hearing and was cross-examined. He adopted his two affidavits. No other witnesses were called to give evidence. I have taken into account all of the material relied upon by the parties.
The plaintiff
6 The plaintiff is now 63 years old. He attended school to Year 10, then worked in various jobs: making magnets (two years); as an industrial spray painter (six years); as a security guard (9 years); running a bicycle shop (about seven years); as a delivery driver (in 2002).
7 In around 2003, he obtained his B-double heavy truck licence and began working as an interstate truck driver. He worked as a truck driver for a number of employers over the next 9 years, without any back pain at all. He suffered a head injury in February 2011 when the truck he was driving went onto its side, and he had stitches to repair the wound. He did not suffer any back pain as a result of that incident. However, at that time he was diagnosed with Type II diabetes, requiring oral insulin. He took six months off work at that time, and then returned to work as an interstate truck driver for six months with another transport company.
8 In May 2012, he started work with Southern Freight, working 72 hours per week driving B-doubles interstate, in which the truck is coupled to two large trailers. Southern Freight owned the prime movers, but the trailers, which were new, were owned by another transport company, Maxwells. The plaintiff was also responsible for loading and unloading the trailers for each trip. The plaintiff drove a B-double semi-trailer tautliner, with curtains down the side of the trailers. Inside the curtains, the loads were secured with steel gates. There were 10 gates on each side of the trailers. Each gate was about 2.5 metres tall by 1.5 metres wide and weighed about 25kg. The plaintiff was required to lift the gates up over his head and then down onto the ground when unloading. When loading, the plaintiff had to lift from the ground, up over his head, into the peg-holes on the trailer. Given their dimensions, the gates were difficult to balance in the air. They were difficult to fit into the peg-holes.
9 The plaintiff’s account of his injury and its sequelae is set out at paragraphs 17-25 of his first affidavit:
17. On one occasion in October 2012, I was at the Australia Post depot in Brisbane and I was removing the steel gates off the trailer to unload when I felt my back go. I immediately felt extremely severe pain that lasted for about 10 minutes. I stopped work and then, when the pain got a bit better, finished putting the truck together, ready for the journey. This was incredibly difficult. I went to a truck stop and I rang Les, the owner of Southern Freight. He did not answer so I called Maxwells and spoke to Paul Clarke to report the injury. He said he would mention it to Les and I would probably have to fill out an incident form with Southern Freight, who should then contact Maxwells to discuss it. I never heard back from Paul or Les. I did not chase it up. The pain settled down with rest, and I just hoped that it would go away. I wanted to get on with work.
18. However, since that incident, my back has never been right. It has always felt weak and “touchy”, as if it might go on me at any moment. I have suffered flare-ups of pain that I had never had before the October 2012 incident. I have never felt free of pain for very long and I have always been conscious that something was not quite right.
19. I continued to work as a truck driver after my injury. I did so for as long as I could. I stopped working at Southern Freight in May 2013. The reason I left was because of a pay dispute and because the company did not treat me or the other drivers very well. Also, I was still having to use the heavy steel gates. At the time I left, my back felt weak and the sensation of pain in the low back and left leg was becoming more common. It was getting worse as time went on.
20. I wanted to keep working so I started driving trucks for Robin Fahey Haulage Pty Ltd. I did not do as much unloading and loading as I had at Southern Freight, but my back did not improve. The job only lasted a couple of months because the company went bust.
21. In October 2013, I obtained employment at Logistics 1, another transport company, as an interstate truck driver. The duties I performed were similar to those at Southern Freight, both driving and loading. The gates on the trailers were aluminium, rather than steel, and therefore a fair bit lighter. Furthermore, they were attached to hangers, which provided assistance with lifting. Nonetheless, my back was still not getting better, and the pain was flaring up any time I tried to load and unload trucks or walk any distance. By Christmas 2013, there was regular discomfort when I was unloading and loading. I found I was taking a break every five minutes. Driving the truck itself seemed to be manageable but any other work was quite painful.
22. I left my employment with Logistics 1 in May 2014. By that time my back was pretty sore.
23. In May 2014 I started work with Gartner Transport, again as an interstate truck driver. I was reasonably happy with that job. The company paid me well and looked after the staff. I drove smaller trucks and the work was less demanding. Unfortunately, my back pain was still not improving and was gradually getting worse. By July 2014 it was impossible to do my job. On one occasion my back and legs seemed to give way, after I fell off the trailer of a potato truck. I then realized it would have been dangerous to continue. I have not worked since that date. I was very disappointed to leave Gartners. I wanted to remain there for a long time.
24. Up until the time I left Gartners, I had not taken medication or been to a doctor about my back. At the time of the original incident I thought the pain would go away. I was probably in denial about the true extent of the problem for a long time and not willing to admit that my truck-driving career was being brought to an end because of that October 2012 incident. I also did not want to take medication, because it can be dangerous when you are driving trucks. I just got on with it until I could not do it any longer.
25. In July 2014, after I finished at Gartners, I went to my GP at Cowes Medical Centre about the back pain…
10 In his viva voce evidence, the plaintiff adopted what he had said at the Magistrates’ Court[8] concerning the October 2012 incident, namely, that he felt a “twinge”[9] in his back, that his back “just hurt like hell”[10], that the pain “was right in the middle of my back” and “it was like someone was sticking me with a knife or a big needle”[11]. That pain lasted 5-10 minutes.[12]
[8]In his judgment, Magistrate O’Brien noted that the WorkCover claims made by the plaintiff against Gartners and Robin Fahey Management had been rejected by the Authority. The learned Magistrate found that the plaintiff suffered injury to his lower back arising out of, or during the course of, his employment with both Southern Freight and Logistics 1.
[9]T19.15.
[10]T47.1.
[11]T47.3.
[12]T46.26.
11 In cross-examination, the plaintiff insisted that when working for Southern Freight he had told his immediate supervisor, Leslie Lenowry, that he had a problem with his lower back. He said that his work for Robin Fahey Haulage was not as difficult for him as the trailers were already loaded for him to pick up and he did not need to move gates or curtains. He said that when working with Logistics 1 his back pain worsened, but it also became hard for him to walk around the trailers. He said that he was in regular discomfort while loading and unloading trucks but could not afford to stop work as he had two children at university. He said that he did not like doctors and only saw one in July 2014 about his back pain when he had no choice.
12 The plaintiff agreed that he told Mr Girish Nair[13] when he saw him in September 2014 that the pain he suffered in October 2012 “over a period of time…did disappear” [14]. The plaintiff said that the pain disappeared for two or three weeks, then returned, then disappeared and returned.[15] He said that the pain had remained constant since 2013.[16]
[13]Neurosurgeon and spinal surgeon.
[14]DCB, p 103.
[15]T30.21.
[16]T31.18.
13 The plaintiff said that the work at Gartners at the time he had the fall in July 2014 involved using a trailer which had steel sides. He found it impossible to climb up the back of the trailer because of his leg pain, and fell off it. The plaintiff agreed that a WorkCover claim had been lodged on his behalf against Gartners, but said that his back and leg pain were already present at the time he had that fall.
14 After seeing his general practitioner, Dr Nirpa Bahadur Rawal, in Cowes in July 2014, he was prescribed medication, referred for radiological investigations and for physiotherapy. He was also referred to a spinal surgeon, Mr Nair. He was prescribed Mobic and later Tramadol and then Palexia for his pain. He saw a physiotherapist on a few occasions but ceased treatment as it did not assist him. He tried hydrotherapy, which did not assist him.
15 By November 2014, he was suffering constant back pain, which was aggravated by any sustained walking or sitting. His doctor increased the dose of Palexia, and he took pain medication regularly.
16 He moved to Melbourne from Phillip Island in 2015 to be closer to treatment options, and began seeing another general practitioner, Dr Eugene Kalnin. Dr Kalnin referred him to Mr Greg Etherington, who ordered further investigations and performed a nerve root injection on 23 March 2016. Mr Etherington also diagnosed a vascular problem which was considered to be related to the plaintiff’s leg pain when walking. The plaintiff underwent successful vascular surgery in April 2016, but continued to suffer with pain in the left buttock when walking.
17 During his years working as a truck driver prior to October 2012, the plaintiff worked up to 80 hours per week and his main source of pleasure was his work. He loved being out on the road and travelling long distances. He suffered no back pain or buttock pain.
18 As at 11 May 2018, when he swore his first affidavit, the plaintiff stated that he has been unable to walk anywhere without his back and buttock pain “kick[ing] in almost straight away”[17]. He struggles to keep up with other people. On one occasion, he tried hard to keep up with his friends but after an hour he had an attack of severe buttock pain and vomited in the gutter. He now only goes out if he has to. If he goes out, he suffers badly afterwards. He spends his time at home resting, watching television. He sees his children on occasion. He is able to perform the activities of daily living slowly and with difficulty. He climbs the stairs one at a time because his legs, particularly his left leg, feel week. He used to have help with household chores from his son and his girlfriend when they lived with him. He is very depressed due to his pain, which “comes and goes but it [sic] sometimes very severe”[18].
[17]Plaintiff’s first affidavit, paragraph 35.
[18]Plaintiff’s first affidavit, paragraph 43.
19 As at 7 February 2019, when he swore his second affidavit[19], the plaintiff stated he continues to experience pain, which “is usually about 2/10 but easily increases to 8/10 if [he] walk[s] more than about 50m, stand[s] for more than about 5 minutes or bend[s] or twist[s]”[20]. His sleep is disturbed by pain and he is often awake for an hour or so during the middle of the night. He takes time managing his domestic tasks, very slowly. When shopping, he uses a trolley and does not lift anything heavy. He finds it hard to get in and out of a car, and finds that sitting in the car causes increased pain.
[19]Sworn 7 February 2019 (‘the plaintiff’s second affidavit’).
[20]The plaintiff’s second affidavit, paragraph 3.
20 He is able to ride his Harley Davidson motorbike, as he has had modifications made to the handlebars, seat and foot pegs. Even so, he can only ride for about 30 minutes before his pain increases. He has always loved riding, and, were it not for his back injury, would have ridden a lot more and taken trips interstate. He still gets pleasure from riding his bike over short distances. He has been unable to do any work on his car for the past three years.
21 He finds it hard to go out anywhere where he is required to walk any distance, as he needs to stop repeatedly and sit down. This problem results in his preferring to stay home.
22 He sees Dr Kalnin once or twice a month for prescriptions for painkillers. At the hearing he said he no longer wears a Fentanyl patch, as he had an adverse reaction to it. He does not like taking pain medication, but takes Endone when he needs it. On a day when he plans to ride his bike, he takes two Endone in the morning. He takes Panadeine Forte tablets occasionally in the evening. He last took Panadeine Forte about three days prior to the hearing. He said that he pays others to do the gardening.
Radiology
23 X-Ray and CT scans were performed in July 2014[21].
[21]PCB, pp 15-16.
24 MRI scan of the lumbar spine on 12 October 2014[22] was reported as follows:
[22]PCB, p 17.
At L5-S1 there is facet arthropathy. This is associated with a central disc protrusion. Thecal and S1 nerve root sheath encroachment as a result. Associated more substantial bilateral foraminal narrowing compressing distal L5 nerve root sheaths and spinal nerves within the exit foramen.
At L4-5 there is broad based disc bulging and ligamentum flavum hypertrophy. Relatively minor thecal and nerve root encroachment. Associated moderately severe bilateral foraminal narrowing.
At L3-4 there is facet arthropathy causing the anterior spondylolisthesis together with disc bulging. No significant thecal or nerve root encroachment. Minor foraminal narrowing.
The L2-3 level is relatively normal.
Conclusion: Bone and disc degenerative change throughout the lumbar spine as described.
At L5-S1 there is a central disc protrusion. Associated bilateral foraminal narrowing in particular on the right.
At L4-5 there is broad based disc bulging associated with foraminal narrowing.
25 MRI scan of the lumbar spine performed on 11 January 2016[23] was reported with the following conclusions:
Conclusion:
L3-4 anterolisthesis secondary to bilateral L3 pars interarticularis defects with resultant mild bilateral foraminal stenosis.
L4-5 bilateral moderate foraminal stenosis and mild central canal stenosis.
L5-S1 retrolisthesis with central annular extrusion type herniation posteriorly displaces the left S1 nerve root in the subarticular recess.
[23]PCB, p 19.
26 MRI scan of the lumbar spine performed on 22 June 2017[24] was reported with the findings, in addition to the L3-4 anterolisthesis due to longstanding bilateral pars interarticularis defects, of “moderate disc degeneration from L3-4 to L5-S1”. Specific findings were as follows:
[24]PCB, p 23.
L3-4 Level
Minor disc bulge and anterolisthesis cause bilateral mild to moderate foraminal narrowing without definite neural impingement. No spinal canal narrowing.L4-5 Level
Disc bulge with mild left and moderate right foraminal narrowing which may have potential for impinging the right L4 nerve root. No spinal canal narrowing.L5-S1 Level
Disc bulge with a shallow posterior disc protrusion, causing moderate left and mild right subarticular recess narrowing without definite neural impingement. Mild central canal narrowing. Mild left foraminal narrowing. Moderate to severe right foraminal narrowing may have potential for impinging the right L5 nerve root.
Reports of treating doctors
27 The plaintiff has treating general practitioners in Melbourne and in Phillip Island. Dr Rawal, who has been seeing him in Cowes since 2014[25], recorded a history from the plaintiff of back pain similar to the back pain suffered two years previously, which settled down over time[26]. Similarly, in a later report dated 21 July 2017, Dr Rawal noted that when he first saw the plaintiff it was for a “period of back pain first felt 18 months ago with heavy lifting”[27]. Dr Rawal referred the plaintiff to Mr Nair.
[25]Exhibit A.
[26]Dr Rawal report dated 11 November 2014 at PCB, p 27.
[27]Dr Rawal report at PCB, p 28.
28 Mr Nair reported[28] seeing the plaintiff on 17 September 2014 and receiving a history in the following terms:
…On presentation, he was a 58-year-old gentleman who used to work as an interstate truck driver. His presenting complaints were of back pain and pain down his left leg. He said that he had a first experience of back pain whilst he was unloading heavy objects from his truck about two years back. He said the pain at that time was quite mild however, he did inform his employer and that he did continue to perform his normal work. He informed me that over a period of time, the pain that he experienced did disappear.
A few months after the initial pain, he felt a mild degree of pain at the same side whilst at work but did not pay much attention to it as in his words, “it was quite variable”. His symptoms unfortunately, took a turn for the worst with the pain getting more intense and also developing a radicular pattern by running down his leg at Christmas of 2013. Despite this, he continued to work until June 2014 when the pain got to a point where it was unbearable and he was unable to walk any significant distance.
[28]On 2 December 2014 at PCB, p 29.
29 The plaintiff told Mr Nair that his back pain troubled him more than his left leg pain, and Mr Nair suggested conservative treatment with a view to performing a CT guided epidural injection at the L5/S1 level if there was no improvement over the next three months.
30 Mr Nair diagnosed “lumbar degenerative disease becoming symptomatic as a result of the multiple injuries reported at his workplace”[29]. He did not consider that the plaintiff’s condition had stabilised.
[29]PCB, p 31.
31 The plaintiff’s general practitioner in Melbourne, Dr Kalnin, reported[30] taking a history from the plaintiff as follows:
1. The first pain appeared in 2012 after he was unloading heavy objects off his truck. The pain was not severe, however he informed his employer and continued to work. The pain was from his back, running down his leg. He stopped working when the pain became unbearable and he could only walk less that 30-50 metres and the pain interfered with his everyday life.
[30]Dr Kalnin report 27 September 2016 at PCB, p 51.
32 Dr Kalnin concluded that “work related activity initiated the onset of the symptoms and most likely contributed to the changes [spondylolisthesis and degenerative vertebrae changes] on his spine investigations”[31].
[31]PCB, p 51.
33 On 23 October 2017, Dr Kalnin reported[32] that the plaintiff’s symptoms were ongoing, that specialists had declared him unfit for employment, and that his ongoing pain continued to affect his activities.
[32]PCB, p 53.
34 On 21 February 2019, Dr Kalnin opined[33] that the plaintiff’s incapacity for work would continue indefinitely and that he required specialist pain management.
[33]PCB, p 55.
35 Dr Kalnin referred the plaintiff to another spinal surgeon, Mr Etherington.
36 Mr Etherington reported[34] that he first saw the plaintiff on 3 December 2015, and that “onset of his lumbar and left leg pain was quite vague, as there was no one incident. Rather, it seemed to be a gradual onset over 3 years”.
[34]PCB, p 41.
37 Mr Etherington diagnosed L3 spondylosis and spondylolisthesis, degenerative lumbar disease and vascular occlusive disease. He noted that the plaintiff had already had a lumbar spine injection and may require more, and that there was a slim chance he would require pain management and/or surgery of some form.
38 The plaintiff saw Mr Etherington again on 19 June 2017 with persisting lumbar and left buttock pain and was referred for facet injections[35]. He felt that given the persistence of his symptoms for 4-5 years, the plaintiff’s prognosis was poor, and he was likely to have persisting lumbar pain that would affect most aspects of his life. He felt that the plaintiff may require pain management or possibly surgery if other measures did not adequately control his pain.
[35]PCB, p 43.
39 On 28 February 2019, Mr Etherington noted[36] that there had been minimal change in the plaintiff’s condition. He noted that he had referred the plaintiff for pain management in early 2018, but that this had been declined. He noted that the plaintiff, six years since first suffering lumbar pain, continues to be disabled from the pain. The plaintiff told him his pain was present all the time but fluctuated; that most activities of daily living were altered by pain, and most other activities, including sitting and sleeping, were also affected to some degree. He noted that the plaintiff’s condition was degenerative in nature, and that he would continue to have symptoms, and that any treatment was directed at making him more functional by reducing his pain.
[36]PCB, p 46.
40 On 22 April 2019, Mr Etherington opined[37] that the incident of October 2012 involved the onset of severe pain against the background of pre-existing but asymptomatic lumbar degenerative changes, and that the pain became less severe initially but remained chronic. The pain then gradually increased over time.
Medico-legal reports
[37]PCB, p 48.
41 Mr Russell Miller, orthopaedic surgeon, in his report to the plaintiff’s solicitors dated 11 June 2016[38], recorded a history from the plaintiff as follows:
In approximately October 2012 he was bending down to lift one of the gates when he noted a twinge in his lower back, followed by ache, discomfort and pain in his lower back. He reported the matter at work and continued on with his work and persevering with his symptoms.
[38]PCB, p 78.
42 Mr Miller acknowledged that the plaintiff had “longstanding and pre-existing degenerative disease in the lumbar spine” and “that his significant physical work over a protracted period of time has contributed to the evolution of that disease”[39]. However, given the absence of prior symptoms until the work event in October 2012, Mr Miller concluded that it was “likely that that work incident precipitated symptoms in relation to the lumbar spine and that affect [sic] persists and accounts, in part, for his current clinical presentation”[40]. Later in his report[41], Mr Miller concluded:
4. It is difficult to determine a precise mechanism of injury. It is likely that this man had pre-existing disease in the lumbar spine. There was vulnerability of the lumbar spine injury. It is likely that there was a mechanical event in October 2012 that triggered symptoms in relation to the lumbar spine. It is likely that once these symptoms had been triggered, they have not abated and indeed have continued.
…
6. …It is likely that the event in October 2012 played an ongoing significant role in the current clinical status of the lumbar spine.
[39]PCB, p 82.
[40]Ibid.
[41]PCB, p 90.
43 Mr Miller noted that the plaintiff could only walk short distances, could not perform normal domestic and gardening tasks and had been unable to resume fishing and riding a motor bike which he enjoyed. He felt that the plaintiff’s symptoms would persist and would possibly deteriorate in the future. He noted that the plaintiff had had a poor response to conservative measures but was unlikely to be assisted by surgery.
44 Mr Paul D’Urso, neurosurgeon, saw the plaintiff on 18 March 2016 at the request of his solicitors, and provided a medico-legal report[42]. He noted the following:
PRESENTATION
In approximately October 2012, Gary was working his duties as a truck driver, he was required to lift steel gates awkwardly which measured 4x1 meters [sic] in length and weighed approximately 20kg. As Gary had to lift awkwardly to manoeuvre these gates he developed some acute back pain. He continued to work, with time Gary’s pain got worse. He changed jobs a number of times but by July 2014 he was unable to work because of worsening lower back pain and left buttock pain. Gary reports chronic back pain between a 3/10 to a 9/10, he denies any significant pain or weakness in his legs but describes some paraesthesia of the toes. Gary can sit for 20 minutes, walk for only 5 minutes, he wakes at night with pain intermittently.
CURRENT CAPACITY
Gary states that he spends his time watching television, he is able to perform some light shopping and light cooking, he can put clothes in a washing machine but not hang them out. He does not perform gardening or cleaning. Gary states that prior to his injuries he was able to go fishing, use his boat and ride a motor bike, he states he can no longer perform these activities because of his chronic pain and disability.
[42]Dated 31 March 2016 at PCB, p 59.
45 Mr D’Urso diagnosed a L3-4 lytic spondylolisthesis which was likely to be the main generator of pain in the lumbar spine, but also noted he may be symptomatic as well at the L4-5 and L5-S1 motion segments where there was evidence of marked disc degeneration. He concluded that the work place injury in October 2012 marked the start of his symptoms and that further work activity, including employment with Logistics 1, caused progression and worsening of the symptoms. He noted that the plaintiff’s symptoms have had a moderate effect on domestic and recreational activities
46 He felt that the plaintiff’s condition would continue to deteriorate if managed conservatively, and that if he had fusion surgery the plaintiff might have some capacity to perform light part-time duties with no lifting or sitting, standing or walking for more than 30 minutes and no repetitive bending, lifting or twisting.
47 On 22 March 2019 Mr D’Urso provided a further report to the plaintiff’s solicitors[43] in which he opined[44]:
On the balance of probabilities, lifting heavy steel gates would appear to have precipitated the onset of severe pain but could well be consistent with causing or aggravating acute stress fractures of the parts interarticularis at the L3 level. If that indeed occurred, then it is highly likely that increasing pain and symptoms of disability would occur, as a result of that specific injury.
[43]PCB, p 64.
[44]PCB, p 66.
48 Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, provided two reports to the plaintiff’s solicitors, dated 5 February 2019[45] and 27 March 2019[46]. His conclusion was that the incident of October 2012 “has contributed to some extent to exacerbation of [the plaintiff’s] pre-existing L3/4 spondylosis and lumbosacral spine disease”[47]. Given the absence of radiological investigations prior to 2014, he concluded that “it is impossible to quantify the extent to which his back was rendered more vulnerable and liable to increasing symptoms”[48].
[45]PCB, p 100.
[46]PCB, p 139.
[47]PCB, p 145.
[48]Ibid.
49 The defendant relied on the medico-legal reports of Mr Roger White, surgeon[49]; Dr Graeme Doig, surgeon[50]; and Dr David Barton, occupational physician[51].
[49]DCB, p 72.
[50]DCB, p 82.
[51]DCB, p 95.
50 Mr White took a history from the plaintiff on 12 September 2014 that he experienced “a twinge in his lower back to the left” in October 2012 while unloading heavy steel gates; that he “’made a few phone calls” in respect of his back injury”, that the discomfort “settled somewhat” and he kept working[52]. He took no medication or time off work and persisted with normal duties, “although with persistent discomfort he ‘knew it was there’, but it didn’t restrict him”[53]. The plaintiff told him that the discomfort became increasingly troublesome towards Christmas 2013 when removing gates, and by July 2014 he “simply could not continue”[54], saw his doctor and had investigations. Mr White opined that the plaintiff suffered “a new injury in 2012 against a background of no back symptoms. The employment has contributed to a low level of grumbling and more recently accelerating symptoms from the degenerative change”[55]. He considered that the radiological changes were “constitutional” but that “there has been a contribution from the workplace incident”[56]. He concluded that the plaintiff’s incapacity would progress with time.
[52]DCB, p 73.
[53]Ibid.
[54]Ibid.
[55]DCB, p 76.
[56]Ibid.
51 Dr Doig provided a report dated 12 October 2016 in which he noted that “there is no documented evidence to support any injury having occurred in October 2012”[57]. This assumption, which is clearly incorrect, renders his report of little assistance and I do not attach any weight to it.
[57]DCB, p 84.
52 Dr Barton reported on 6 February 2019 that there was a degree of functional overlay[58] in the plaintiff’s presentation and that there was no reason why he could not work full time as a truck driver[59]. His opinion is completely at odds with the weight of medical opinion canvassed above, and I therefore disregard it.
[58]DCB, p 98.
[59]DCB, p 99.
Findings and reasons
53 I found the plaintiff to be a very straightforward and honest witness, who gave responsive answers to the questions asked of him. I accept the explanation he gave for not consulting doctors concerning his worsening pain until July 2014, namely that he wanted and needed to continue working as a truck driver, and I consider that this is an indicator of his stoicism and determination, in the face of ongoing and increasing pain, to maintain his employment in his chosen occupation. This explanation is also relevant to any alleged failure to make a formal complaint to Southern Freight or to lodge a WorkCover claim against it.
54 I consider that the account he gave to his treating and examining doctors about the circumstances of the injury in October 2012 as well as of the sequelae of that injury was completely consistent with his evidence. No credit issues were raised about his account of the incident, its sequelae or the extent of his pain and limitations. I accept the plaintiff’s evidence in respect of those sequelae. They include the inability to continue working as a truck driver, which was an occupation he loved, the suffering on a daily basis of back pain, which interferes with his sleep and requires frequent ingestion of prescription medication, and the considerable restrictions on his domestic and recreational activities, in particular the limited sitting and walking tolerances.
55 The weight of the medical opinion is to the effect that the incident of October 2012 rendered symptomatic previously asymptomatic but longstanding degenerative changes in the lumbar spine. I accept that conclusion. The symptoms complained of are regarded by all the treating and examining doctors (apart from Dr Barton) as consistent with the radiological findings. The medical evidence concerning the plaintiff’s pain and restrictions is consistent with the plaintiff’s evidence. The expert consensus is that as a consequence of his ongoing, worsening symptoms, the plaintiff is permanently incapacitated for work as a truck driver and, more than likely, for all work. The medical evidence is to the effect that his symptoms are likely to continue to worsen over time.
56 The defendant took me to a number of authorities[60] on the basis that some disentangling of the consequences of the 2012 incident was required because of the finding in the Magistrates’ Court that Logistics 1 was equally liable for the injury suffered by the plaintiff and that it, rather than Southern Freight, should pay the plaintiff’s medical and like expenses as well as weekly payments.
[60]These cases included AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (2012) 34 VR 309; De Agostino v Leatch [2011] VSCA 249; Rowe v Transport Accident Commission (2017) MVR 195.
57 I consider that in the circumstances of this case, no disentangling is required. This is because, in this case, the allegation is of compensable injury arising from one incident, during employment with one employer – Southern Freight. The pain and suffering consequences of that injury evolved over the next few years and reached their conclusion in July 2014 with the cessation of work when the symptoms became inconsistent with further truck driving.
58 The only analysis which is therefore required is that which I have undertaken, namely, to identify the injury which is alleged to have occurred, the permanent impairment which is said to flow from that injury, and to determine whether the pain and suffering consequences of that impairment meet the narrative test for serious injury.
59 I am satisfied on the whole of the evidence before me that the incident in October 2012 rendered symptomatic the previously asymptomatic degenerative changes of the lumbar spine. I am satisfied that as a result of the injury to the lumbar spine the plaintiff has suffered a permanent impairment of the function of the lumbar spine, and that the pain and suffering consequences of that permanent impairment are more than considerable when compared with other cases in the range of permanent impairments of the lumbar spine.
Conclusion
60 Leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect of the workplace injury to the lumbar spine suffered while working for Southern Freight. I reserve the question of costs.
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