Fullerton v Vulcan Steel Pty Ltd and Victorian WorkCover Authority
[2013] VCC 834
•25 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-02745
| CLINTON FULLERTON | Plaintiff |
| v | |
| VULCAN STEEL PTY LTD and VICTORIAN WORKCOVER AUTHORITY | First Defendant Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June 2013 | |
DATE OF JUDGMENT: | 25 June 2013 | |
CASE MAY BE CITED AS: | Fullerton v Vulcan Steel Pty Ltd & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 834 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Lower back injury – whether the pain and suffering and loss of earning capacity consequences were “serious” – whether the plaintiff suffered a secondary psychiatric condition – whether the consequences were partly contributed to by the secondary psychiatric condition – no need for disentangling
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(38)(c)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: The plaintiff have leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising and loss of earning capacity out of his employment with the first defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett | Arnold Thomas & Becker Lawyers |
| For the Defendants | Mr N Dunstan | Thomsons Lawyers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 14 June 2011 by which the plaintiff applies for leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Brett of Counsel appeared for the plaintiff, and Mr N Dunstan of Counsel appeared for the defendants.
4 The plaintiff submitted that he suffered a serious permanent impairment or loss of the function of his lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· A bundle of medical certificates of the plaintiff: Exhibit A;
· The plaintiff tendered his Court Book (“PCB”), pages 11-18, 25-43, 47-85 and from the defendant's Court Book (“DCB”) pages 1-5: Exhibit B;
· The first defendant tendered its Court Book pages 11-49c, 52-60, 69-70, and 92-154: Exhibit 1;
· The clinical notes of the Springvale South Medical Centre: Exhibit 2;
· The clinical notes of the Moe Medical Group: Exhibit 3.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(c) of the Act which requires the plaintiff to prove that he has suffered a “serious permanent impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by ss(19)(a), (19)(b) and (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being “at least very considerable”;
(e) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently;
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined, save where the worker was under 26 years of when the injury was sustained. In those circumstances, ss38)(e) applies.
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case;
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
The Plaintiff’s background
8 The plaintiff was born in 1983. He is now thirty years of age. He is a single man. He is in an on/off relationship with his female partner. He has two children by the relationship – a son who was born on 3 February 2008 and a daughter who was born on 18 August 2009. The plaintiff currently lives with his mother in her home in Moe.
9 The plaintiff completed Year 8. It would appear that he did not meet the requirements of the school he attended to obtain a pass and to be promoted to Year 9. He was to repeat Year 8. He returned to his school to repeat Year 8, but he left after a few weeks.
10 It is not clear from the plaintiff’s affidavit sworn 22 February 2011 what work he undertook immediately after leaving school. He must have been very young. Most children, in my estimation in any event, are about fourteen years of age in Year 8. I assume that the plaintiff was fourteen or fifteen years of age. He engaged in labouring work initially. He worked for a concreter about three years in Springvale. He worked for his father as a fencing contractor for about one and a half years. He worked as a storeman in Keysborough for about a year. He then worked as a labourer for a few weeks before commencing with the first defendant as a storeman in early 2004.
The Plaintiff’s injury
11 On 18 January 2005, the plaintiff jumped down off the tray of a truck in a loading bay at the first defendant’s premises. The surface of the loading bay was concrete. As he landed on the concrete, he felt a sharp pain in his lower back.
The Plaintiff’s medical treatment
12 The plaintiff saw Dr Li, general practitioner, on 20 January 2005 complaining of lower back pain. On examination, Dr Li found tenderness at L4-5, and a limitation of movement of the plaintiff’s lower back. He prescribed the plaintiff Panadeine Forte and Voltaren for pain relief.
13 The plaintiff returned to Dr Li complaining that his lower back had not improved. Dr Li referred the plaintiff to have a CT scan which was taken on 28 January 2005. According to the radiologist, it demonstrated:
“… At L5-S1 disc level there is quite a large disc protrusion occurring in the lumbar canal in right para-central position which is deforming the anterior surface of the thecal sac, particularly in the right side of the lumbar canal. A canal stenosis results in this disc protrusion … .”[4]
[4]PCB 82
14 Dr Li referred the plaintiff to have physiotherapy. He did not attend physiotherapy at that stage. He subsequently referred the plaintiff to Cedar Court in Dandenong for rehabilitation. It is not clear whether the plaintiff attended or not. He says nothing about that in his affidavit.
15 Dr Li also referred the plaintiff to Mr Johnson, orthopaedic surgeon, who the plaintiff first saw on 1 September 2005. At the time the plaintiff saw Mr Johnson he told him that he was suffering pain in his lower back with some pain radiating into both of his legs. He said the left leg was worse, with the pain extending to the upper calf. On examination, Mr Johnson found fifty per cent of normal range of movement in the thoraco-lumbar spine, but otherwise no other abnormality in the spine.
16 Mr Johnson was uncertain of the cause of the plaintiff’s pain. He appears to have been satisfied that the problem the plaintiff was experiencing with his lower back began at the time of the incident. He considered that the plaintiff presented with a moderate level of disability which he suspected would cause the plaintiff difficulty when engaging in heavy physical work. He suggested that the plaintiff see a rehabilitation specialist. He made appointments for the plaintiff to see Dr Thomas, but the plaintiff cancelled the appointments.[5]
[5]PCB 55-56
17 The plaintiff last saw Dr Li on 17 February 2006. Around that time, Dr Li noted that the plaintiff’s lower back pain had improved with conservative treatment. It would appear that the plaintiff had undergone some physiotherapy by that time. He prescribed the plaintiff Tramal and Voltaren for pain relief. He also noted that the plaintiff had undergone retraining and was working as a security guard. That does not appear to be correct. It would appear that the plaintiff last worked with the first defendant in March or May 2005.
18 The plaintiff then saw Dr Hong, general practitioner, on 12 June 2007. She provided a report dated 8 October 2007 which is breathtakingly brief. It merely refers to her diagnosis that the plaintiff was suffering from a degenerative L5-S1 disc with a small annular tear on the right side with a mild disc protrusion, but no neural compression. That was apparently derived by her from an MRI scan.[6]
[6]PC B-52
19 Dr Hong referred the plaintiff to Mr Drnda, neurosurgeon, who saw the plaintiff on 30 October 2006. Mr Drnda had the MRI scan referred to by Dr Hong. It was taken on 7 October 2006. He considered that the plaintiff’s pain was Myofascial and was triggered by L5-S1 disc degeneration. He showed the plaintiff some exercises to do to strengthen his core muscles, and suggested that he see a physiotherapist. He advised the plaintiff not to engage in bending or twisting the spine at all, and that he should refrain from engaging in employment which would involve those sorts of movement. He advised him to retrain into work which did not involve physical strain of his lower back. The plaintiff last saw Mr Drnda on 30 October 2006.[7]
[7]PCB 44, and his reports at 45-48
20 Curiously, the plaintiff told Mr Drnda that he had seen Dr Thomas. I assume it is the same Dr Thomas who Mr Johnson suggested the plaintiff see for rehabilitation treatment. It does not appear that the plaintiff saw Dr Thomas.
21 It would appear that the reason why the plaintiff stopped seeing Dr Li, and perhaps the reason why he did not see Dr Thomas, was because he moved to Moe. The plaintiff’s father was unwell, and indeed, so unwell that he passed away due to a liver disorder. The plaintiff continued seeing Dr Li for some time while he was in Moe, but then saw Dr Azad, general practitioner, in Moe on 3 January 2007.
22 The plaintiff told Dr Azad that he was experiencing lower back pain and occasional radiation of pain into left side down to his knee. He described the pain as restricting his general activities. He reviewed the plaintiff on 23 April 2007, 17 and 31 May 2007, 27 July 2007, and 30 August 2007. In his report bearing a date stamp of 24 September 2007, he referred to the fluctuating course of the plaintiff’s lower back pain.
23 When Dr Azad last saw the plaintiff on 30 August 2007, the plaintiff told him that the pain he was experiencing was not getting any better. He was experiencing pain radiating to the back of his left leg and suffering pins and needles in both legs with that sensation being worse of the left side. On examination, Dr Azad found tenderness and a reduction in the plaintiff’s range of movement. He diagnosed an L5-S1 disc protrusion contacting the right S1 nerve root. He did not consider that the plaintiff was fit for his pre-injury work, and considered that his prospects of returning to work as a storeman were poor. He considered that the plaintiff was fit to perform alternative light duties which did not involve heavy lifting and frequent bending. He lastly considered that the plaintiff’s lower back pain was fluctuating, had not stabilised and was unpredictable and might deteriorate.[8]
[8]PCB 49-51
24 The plaintiff then saw Dr Silver, general practitioner, on 19 July 2011. On that occasion, the plaintiff told Dr Silver that he was suffering from lower back pain which Dr Silver appears to have diagnosed as left L5-S1 sciatica. On examination, he found a reduction in the plaintiff’s range of movement, but no other abnormalities. He was provided with the CT scan, and it would appear he was aware of the MRI scan which Dr Hong and Mr Drnda referred to. He considered that the plaintiff’s prognosis was poor because he had been suffering from lower back pain for six years by that stage. He considered that the plaintiff would continue to suffer from lower back pain and intermittent sciatica which would incapacitate him in the pursuit of strenuous activities. He lastly considered that it was difficult to predict whether the plaintiff would experience any further deterioration in the condition of his lower back.[9]
[9]PCB 58-59
25 The plaintiff ceased work in March or May 2005. He made an attempt to return to work with the first defendant. The attempt failed because the plaintiff experienced continuing lower back pain. The Commonwealth Rehabilitation Service assisted the plaintiff in finding a job with an organisation known as Fence Tech. The tasks he was required to perform involved the manufacture of fencing for swimming pools. He found being on his feet for long periods of time caused an increase in the lower back pain. He ceased that work after three days.
26 It would appear that the plaintiff is no longer having any active medical treatment. He no longer has physiotherapy. He stopped that because it was aggravating the condition of his lower back.[10] He no longer uses prescription medication. He said that he is concerned about its use because his father died of liver cancer. The plaintiff now uses Panadol and Voltaren, which he buys over the counter at a pharmacy. He last took Voltaren in the week before the trial. He estimated that he would use medication about four times per week.[11]
[10]Transcript 8
[11]Transcript 28
The medico-legal examinations
27 The plaintiff has been examined by a number of medico-legal consultants. The first of those was Mr Scott, general surgeon, who examined the plaintiff on 23 June 2005, and 23 May 2007. The plaintiff told Mr Scott that he was suffering from backache which was worse on prolonged standing and sitting, and with any twisting, turning or bending. He described having left-sided sciatica which radiated through his left buttock, thigh and to the knee. Mr Scott had the CT scan for his examination. He considered that the plaintiff had suffered an acute back strain with an intervertebral disc lesion in the lumbo-sacral spine. At that time, he considered that the plaintiff was totally unfit for work.[12]
[12]PCB 28-29
28 Mr Scott did not vary his opinion after examining the plaintiff on a second occasion. He noted that the plaintiff was taking four Panadeine Forte tablets per day. Mr Scott was provided with a vocational assessment report dated 6 July 2005, the report of Mr Drnda dated 26 January 2007 and a report of Mr Moran, orthopaedic surgeon, dated 22 May 2005. He suggested that the plaintiff needed to lose weight and should give consideration to an epidural injection at L5-S1. He suggested that the plaintiff might be able to undertake some very light work in a part-time capacity which did not require prolonged standing and sitting for more than half-an-hour or any repeated bending, twisting, turning or lifting of more than 5 kilograms.[13]
[13]PCB 36-37
29 Mr Moran examined the plaintiff on 4 May 2006. The plaintiff told Mr Moran that he could not mow his lawns, and had difficulty putting on his shoes and socks. He described pain in his lower back and intermittent pain in his left leg and calf. On examination, Mr Moran found restriction of movement of the plaintiff’s lower back. He had the CT scan for his inspection. He considered that the plaintiff had suffered an L5-S1 disc prolapse with aggravation of L3-4 and L4-5 disc degeneration. He considered that the plaintiff would never be fit for his pre-injury duties, but that he was fit for light employment only.[14]
[14]PCB 42-43
30 Dr Bowles, occupational physician, examined the plaintiff on 20 March 2008. The plaintiff told Dr Bowles that he had persistent stiffness and pain in his lower back and pain radiating down into his left leg which sometimes went down to his ankle. He was restricted in his capacity to bend, lift, walk and stand. On examination, he found a reasonable range of movement, and noted the plaintiff audibly reacting when he was examined. Dr Bowles was not impressed by the MRI scan which he inspected, considering that what was shown on it was not of any significance. In the end, he said he was unable to find a condition from which the plaintiff was suffering, and he referred to the manner in which the plaintiff presented on examination. He considered that the plaintiff had a capacity for his pre-injury duties, and was capable of working as a despatch clerk, sales assistant and spare parts interpreter.[15]
[15]DCB 30-32
31 Mr Dooley, orthopaedic surgeon, provided a report dated 18 October 2011 without examining the plaintiff. On the basis of the material he was provided, he considered that the plaintiff had suffered a disc prolapse which also involved aggravation of underlying degenerative processes in the plaintiff’s lower back. He considered that the plaintiff had probably suffered some permanent restriction, but was capable of engaging in a wide range of light physical activity and clerical type activity.[16]
[16]DCB 34-35
32 Mr Dooley then examined the plaintiff on 16 October 2012. The plaintiff told him that he had persistent ongoing lower back pain with intermittent left leg pain. On examination, Mr Dooley found restriction of movement. He had the CT scan and the MRI scan for his inspection. He considered that the plaintiff had suffered a disc prolapse at the lumbosacral level on the background of degenerative disc disease. He considered that the plaintiff would note some ongoing intermittent lower back pain and lower limb pain. He considered that his injury could be managed conservatively.[17]
[17]DCB 38-39
33 Mr Dooley subsequently provided a third report dated 31 May 2013 for the purpose of commenting on the opinions of Mr Schofield, orthopaedic surgeon, and the second MRI scan taken on 13 May 2013. He did not alter his previously stated opinion, but it would appear that he did not agree with the opinion expressed by Mr Schofield of the extent of the spinal damage which Mr Schofield considered had been caused by the incident, and also Mr Schofield’s opinion regarding the treatment which the plaintiff might need.[18]
[18]DCB 40-41
34 The plaintiff was examined by Mr Schofield on 25 May 2012. The plaintiff told him that he was suffering from persistent pain in his lower back which had not lessened since the onset of symptoms. He could not stand or sit for more than thirty minutes at a time; could not walk long distances; suffered aggravation of the pain in his lower back when bending or lifting; could only do light house work, and obtained some relief by lying flexed on his side. He also reported left leg pain radiating into the back of his thigh and down into his ankle and foot. Mr Schofield had the CT scan and the MRI scan for his inspection. He considered that the plaintiff had suffered a disc prolapse consistent with the scans comprising a rupture of the posterior annulus at the lumbosacral level causing compression of the right S1 nerve root.
35 Mr Schofield arranged for the plaintiff to have a second MRI scan, which was taken on 4 July 2012. According to the radiologist, it demonstrated a posterior disc bulge with an annular tear at L5-S1 indenting the thecal sac with mild indentation of the right S1 nerve root and mild dural foraminal compromise.[19] In two subsequent reports dated 12 July 2012[20] and 17 May 2013,[21] Mr Schofield confirmed his previously stated opinion that the plaintiff had suffered a lumbosacral disc injury with prolapse. He considered the plaintiff’s prognosis was guarded, and that if he did not proceed to have surgery he was likely to continue to have problems with his lower back preventing him from obtaining resolution of his symptoms. The surgery was to be directed to the pain the plaintiff was experiencing in his left leg. He considered that it would either comprise a decompression of the nerve root and/or a spinal fusion.
[19]PCB 67
[20]PCB 65-66
[21]PCB 68-70
36 The last medical practitioner who examined the plaintiff is Dr Yong, occupational physician. He examined the plaintiff on 20 March 2013. The plaintiff told him that he had pain in his lower back with intermittent radiation of pain into both legs which was worse on the left side. He was provided with the CT scan and the MRI scans. The plaintiff told him that he did very little, doing some domestic tasks, occasionally mowing the lawns, and otherwise watching TV, playing computer games and socialising with friends and his children. On examination, he found restriction of movement in the plaintiff’s lower back, but no neurological deficits. He considered that the plaintiff’s pain was due to a discal injury.[22]
[22]PCB 45-48
37 Dr Yong was asked to consider a vocational assessment report of CoWork dated 2 November 2011 which referred to jobs of sales assistant, road traffic controller and product assembler. He was asked to consider whether any of them were suitable for the plaintiff. He considered that the jobs as road traffic controller and product assembler were reasonable because they were within the range of the restrictions which he considered should be imposed upon the plaintiff. Those restrictions were: avoiding repeated bending and twisting at the back, firm pushing or pulling, and lifting more than 5 kilograms on a repetitive basis.[23]
[23]DCB 47-48
38 In a report dated 30 May 2013, Dr Yong commented on the reports of Mr Schofield. Like Mr Dooley, he did not consider that the more widespread changes in the plaintiff’s lower back would due to the incident, but rather to the ageing process. He did not believe that surgery would assist the plaintiff in returning to a better level of functioning.[24]
[24]DCB 49a-49c
Cross-examination of the Plaintiff
39 Mr Dunstan cross-examined the plaintiff from the medical records of the Springvale South Medical Centre and the Moe Medical Group. During cross-examination, the plaintiff admitted that, after he saw Dr Azad in January 2007, he did not attend a medical practitioner for treatment for his lower back over the balance of 2007 or in 2008 or 2009. He admitted that the next attendance on a medical practitioner for treatment for his lower back was in April 2010.[25]
[25]Transcript 14-16. The plaintiff saw Dr Rajeswaran, general practitioner, on 14 April 2010: Exhibit 3
40 I have read through the medical records of the Moe Medical Group from 14 April 2010. There is a reference in the clinical notes to the plaintiff’s lower back on 11 January 2011. Between 14 April 2010 and the last entry in the clinical notes on 28 March 2011, the plaintiff was treated for a number of medical conditions, including an addiction to cannabis and for a psychiatric condition, subjects on which Mr Dunstan also cross-examined the plaintiff.
41 It was obvious that the cross-examination regarding the lack of medical treatment was aimed at a submission that I should be less prepared to accept the plaintiff’s complaints of having a painful and disabling lower back condition if he was able to cope without active medical treatment and appropriate painkilling and anti-inflammatory medication.
42 Mr Brett tendered Certificates of Capacity commencing on 22 February 2007 and running through to 29 April 2008 to demonstrate that the plaintiff was having active treatment at least during that period.[26]
[26]Exhibit A
43 Mr Dunstan also cross-examined the plaintiff regarding his capacity to return to suitable employment. He based his cross-examination not on the report of CoWork dated 2 November 2011,[27] and in particular, the references in the report to jobs of sales assistant,[28] road traffic controller[29] and electronic assembler.[30] They are the same jobs referred to by Dr Yong in his report dated 20 March 2013. The plaintiff said that he did not think he could do any of those jobs because of the extent to which he would be required to sit, stand and to engage in tasks which would be likely to aggravate the condition of his lower back.[31]
[27]DCB 101-150
[28]DCB 116-117
[29]DCB 118-119
[30]DCB 120-121
[31]Transcript 22-25
44 The plaintiff said that he had given some thought to the type of work he might be able to undertake. He thought that courier work had some potential because of the limited lifting and standing involved.[32]
[32]Transcript 29
45 Mr Dunstan cross-examined the plaintiff about treatment for injuries suffered as a result of an assault, his abuse of cannabis and his dependency upon it, and a psychiatric condition which led to the plaintiff making an attempt on his own life. I do not propose to spend much time dealing with each of these issues because the assault did not result in an injury of any kind which is relevant to the injury to the plaintiff’s lower back. As far as the plaintiff’s abuse of cannabis is concerned, he said he is now free of that dependency.
46 Lastly, the plaintiff’s psychiatric condition appears to be secondary to the occurrence of the injury to his lower back. According to Dr Strauss, psychiatrist, who examined the plaintiff on 16 May 2013, the plaintiff has a mild psychiatric reaction which does not incapacitate him for employment.[33] According to Dr Stern, psychiatrist, who examined the plaintiff on 20 February 2008, 4 May 2012 and 24 May 2013, the plaintiff is now suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, but is fit for his pre-injury duties or alternative duties identified in the report of CoWork dated 2 November 2011.
[33]PCB 80
Consequences
47 The preponderance of the medical evidence establishes that the plaintiff probably suffered a disc prolapse, consistent with what was demonstrated on the CT and MRI scans, and was probably involved in the production of the left leg pain suffered by the plaintiff.
48 The foregoing appears to me to be consistent with the opinions of Mr Scott, Mr Moran, Mr Dooley, Mr Schofield, and Dr Yong. In contrast, Mr Johnson and Dr Bowles considered that there was no basis upon which they could provide a definitive diagnosis. In the case of Dr Bowles, he considered that the plaintiff’s conduct during his examination of him made it difficult for him to determine whether the plaintiff had suffered an injury as alleged. Mr Drnda accepted that the plaintiff had suffered an injury, but not of the significance described by Mr Scott, Mr Moran, Mr Dooley, Mr Schofield, and Dr Yong.
49 Dr Li, Dr Hong and Dr Azad appear to have accepted the interpretation of the CT scan of the radiologist. Dr Hong appears to have had the first MRI scan for her inspection. Their opinions fall into line with the opinions of Mr Scott, Mr Moran, Mr Dooley, Mr Schofield, and Dr Yong.
50 There is also a division in the opinions of those medical practitioners who consider that the plaintiff suffered a disc prolapse as to whether the plaintiff is suffering from sciatica. For example, Mr Scott, Mr Moran and Mr Schofield consider that the plaintiff’s left leg pain arose from the disc prolapse. Mr Scott and Mr Schofield chose to describe that pain as sciatica, whereas Mr Moran described it as left leg pain. Mr Dooley did not accept that the plaintiff had suffered sciatica, but did not discount the presence of that pain as arising from the disc prolapse.
51 I think it is more likely than not that the plaintiff suffered a disc prolapse and, whether the disc prolapse is compressing a nerve root or not, there is a preponderance of opinion that the plaintiff's left leg pain is related to damage to the L5-S1 disc.
52 There was no issue that the plaintiff suffered an injury to his lower back and that the injury impairs the function of his lower back. There appears to be no issue that the plaintiff is not fit for his pre-injury employment with the first defendant. It was not submitted by Mr Dunstan that the plaintiff is fit for that employment, and, in any event, I think that the preponderance of the medical evidence is to the contrary. It is only Mr Bowles who was of the opinion that the plaintiff is fit for his pre-injury employment.
53 I accept the plaintiff’s evidence that he has suffered persistent pain in his lower back since the occurrence of the injury in 2005. I also accept his evidence that he has suffered pain radiating from his lower back into his left leg which has at times gone down as far as his left foot, and that he has also experienced pain in his right leg, but it has never been as bad as the pain he experiences in his left leg.
54 I do not accept the submission made by Mr Dunstan that the fact that the plaintiff did not have medical treatment for periods of time, which I have referred to earlier, must lead to the conclusion that the plaintiff has not had an actively symptomatic lower back condition.
55 My reasons for reaching that conclusion are that the plaintiff obtained a diagnosis that he suffered a significant lower back injury in 2005, and that when he has been examined by specialists, except by Dr Bowles and, to a lesser extent Mr Johnson, the specialists have concluded that the radiology and their clinical examinations have led them to conclude that he has a disc prolapse and either sciatica or referred pain mainly into his left leg. Mr Johnson could not make a diagnosis, but he did not go so far as to say that there is no basis for the plaintiff’s complaints of pain.
56 Furthermore, there is a consistency in the opinions of Mr Scott, Mr Moran and Mr Schofield that the plaintiff has no residual capacity for suitable employment. Against that is the opinion of Mr Dooley, who considered that the plaintiff does have a residual capacity for suitable employment, and the opinion of Dr Yong, who specifically addressed three jobs referred to in the report of CoWork which are said to be suitable. I will return to the question of suitable employment shortly.
57 I accept the plaintiff’s evidence that he has significant difficulty sitting, standing, walking, bending, twisting and turning. All the foregoing are relevant to a capacity to adopt postures and to engage in full, free and unrestricted mobility. I accept the plaintiff’s evidence that adopting those postures and his mobility is restricted and can cause him to suffer aggravation of the painful condition of his lower back and left leg. I accept the plaintiff’s evidence that, when he suffers more severe episodes of pain, that he needs to lie down to ease the pain, and intermittently during the week he takes some medication to obtain additional easing of the pain.
58 I accept the plaintiff’s evidence that he was reasonably active before he suffered injury to his lower back. There is no history of the plaintiff suffering an impairment of any kind which prevented him from pursuing work after he left school. He appears to have had a reasonable work history. He referred to activities such as horse riding, going camping and socialising, and, although he did not expand upon the extent that he engage in those activities, I accept that they are activities which are now lost him or made more difficult because of the injury to his lower back.
59 The plaintiff struck me as being a reasonable witness. He gave a reasonable account of the nature and extent of the disablement he suffers. He conceded that he could probably do some work, although not in the sustained a manner that was put to him by Mr Dunstan. I think that is where there is a significant point of difference between the opinion of Dr Yong and what the plaintiff says about his capacity for work. I have examined what is involved in the jobs which Dr Yong considers to be suitable. I can see that they involve the plaintiff in needing to sit and stand and no doubt to engage in levels of bending, twisting and turning. It seems to me to be utterly unreasonable to suggest that those jobs do not involve those sorts of activities.
60 I am satisfied that the plaintiff has suffered a significant discal injury, and there is a good medical evidence to support that conclusion. I am also satisfied that it produces persistent pain and pain affecting the plaintiff’s left leg. I am satisfied that the interference with his capacity for work and his capacity to obtain postures and to be mobile is significant. Whilst the plaintiff has not had much medical treatment, I am not satisfied, in this case, that it is a matter of significance, because of the opinions of Mr Scott, Mr Moran, Mr Schofield and the general practitioners who have seen the plaintiff since 2005.
61 I am satisfied that the consequences for the plaintiff, which I have summarised above, constitute pain and suffering consequences which are “at least very considerable”.
62 I am also satisfied that the loss of earning capacity consequences are “at least very considerable”. I can see the basis upon which Dr Yong offered the opinion that the plaintiff can undertake the jobs referred to in the report of CoWork, but I have carefully considered the evidence of the plaintiff in the context of the histories given to all the medical practitioners who have examined him. Apart from Mr Johnson and Mr Bowles, there appears to be acceptance that the complaints of pain and disablement made by the plaintiff are within an acceptable range given the nature and extent of the injury he has suffered.
63 The fact that the medical evidence is as strong, as I consider it to be, fortifies me in concluding that the plaintiff has suffered an incapacity for employment generally, and for the jobs referred to in the report of CoWork, and that I should accept his evidence that he might be able to do some of the work for some of the time, but would not be able to tolerate the physical demands of those jobs.
64 Lastly, Mr Dunstan submitted that there is a need for so-called disentangling because the plaintiff has suffered cannabis abuse and a secondary psychiatric condition. I reject that submission. The medical evidence permits me to see very clearly that the plaintiff suffered discal injury which was diagnosed in 2005 and has been repeatedly diagnosed by the medical practitioners whose evidence I prefer. I can see no difficulty in determining the physical injury, the impairment of function caused by it, and the consequences produced by the impairment. In any event, neither Dr Strauss nor Dr Stern have offered opinions which suggest that the secondary psychiatric condition is of great significance and is impairing the plaintiff’s functioning to any significant degree.
Conclusion
65 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising and loss of earning capacity out of his employment with the first defendant.
66 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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