Garel v Elmwood Designs Pty Ltd and VWA
[2011] VCC 1173
•1 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-02076
| MICHAEL GAREL | Plaintiff |
| v | |
| ELMWOOD DESIGNS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12, 15, 16, and 17 August 2011 |
| DATE OF JUDGMENT: | 1 September 2011 |
| CASE MAY BE CITED AS: | Garel v Elmwood Designs Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1173 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – low-back injury – pain and suffering –aggravation of pre-existing multi-level disc degeneration – whether the plaintiff had established that the additional impairment of body function was a “serious” injury – Petkovski v Galletti [1994] 1 VR 436.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham | Mills Oakley Lawyers Pty Ltd |
| For the Defendants | Mr A Middleton | Wisewould Mahoney |
| HIS HONOUR: |
Preliminary
1 This is an application by Michael Garel for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) in respect of a back injury suffered by him in the course of his employment with the first defendant on or about 25 September 2002.
2 The body function alleged to be lost or impaired is that of the lumbar spine. The application is thus brought under part (a) of the definition of “serious injury” contained in s.97(17) of the Act.
3 Leave is sought in respect of pain and suffering damages only.
4 In order to succeed in his application, the plaintiff must establish that the consequences emanating from the loss of impairment of the identified body function are both permanent and at least “very considerable” and more than “significant” or “marked”.[1]
[1] S.134AB (38)(c) of the Act
5 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must compare the pain and suffering consequences of the loss or impairment arising from injury in this application with other cases in the range of possible impairments or losses of body function.
6 The application was originally based upon an injury to the lumbar spine suffered during the course of the plaintiff’s employment with the first defendant after 20 October 1999 and in respect of a specific incident occurring at work on or about 25 September 2002. In his closing submission, counsel for the plaintiff informed me that the claim was now limited to the injury suffered by the plaintiff on or about 25 September 2002; that is, an injury arising from the specific lifting incident alleged to have occurred on or about that date.
7 The plaintiff had had low back problems prior to September 2002. He alleges that the September 2002 incident aggravated that condition.
8 The defendant submits that I should not be satisfied that any incident as alleged occurred in September 2002 and that, if it did, the degree of aggravation resulting does not amount to a serious injury.
9 Affidavits were sworn by the plaintiff on 16 December 2009, 24 March 2011 and 10 August 2011. These were tendered. In addition, the plaintiff gave evidence at the hearing and was cross-examined.
10 A number of medical reports were tendered in evidence. On behalf of the plaintiff, these were the reports of:
(a) Dr Forbes Smith, dated 17 January, 24 March and 20 June 2003; (b) Mr Richard Pease, dated 1 September 2003, 20 October 2003, 9 June 2005 and 4 July 2005; (c) Dr John MacKenzie, dated 9 January 2003; (d) Mr Dale Peirson (Mornington Peninsula Chiropractic Centre), dated 15 March 2011; (e) Dr Igor Andrianov (Beach Street Family Medicine), dated 15 March 2011; (f) Dr J Robinson (Mornington Family Doctors), dated 22 March 2011; and (g) Mr Thomas Kossmann, dated 22 June 2011. 11 Mr Kossmann gave oral evidence at the hearing and was cross-examined.
12 On behalf of the defendant, the following medical reports were tendered:
(a)
Mr Michael Troy, dated 1 November 2002, 12 February 2003 and 2 December 2003;
(b) Mr Edward Schutz, dated 12 September 2006; (c) Mr Timothy Gale, dated 19 November 2007; (d) Mr Hugh Weaver, dated 11 February 2009; and (e) Mr Clive Jones, dated 14 April 2010 and 23 March 2011. 13 None of these doctors were required for cross-examination by the plaintiff.
14 In addition, clinical notes of the Westernport Medical Centre, Langwarrin Sports Medical Centre, Langwarrin Medical Centre, Somerville Chiropractic Centre and the BlueScope Steel medical centre were tendered.
15 The issues to be determined by me are:
(a)
Whether the plaintiff injured his back or aggravated his pre-existing low back condition in a lifting incident on or about 25 November 2002?
(b)
If so, whether injury or aggravation of his pre-existing low back condition amounts to a serious injury and, in particular, whether the consequences for the plaintiff of such aggravation are serious?
The Incident on 25 September 2002
16 The plaintiff deposed[2] that he suffered a specific injury on or about 25 September 2002. He was lifting a three-seat park bench which he estimated weighed in excess of 45 kilograms. He felt a sudden sharp pain in his lower back and a shooting pain down his leg. He advised his boss’s daughter of what had happened and left work to see a local doctor.[3]
[2] PCB 20, paragraph 11
[3] PCB 20, paragraphs 11 and 12
17 In his affidavit sworn 16 December 2009,[4] the plaintiff deposed that the doctor he saw on the day of the incident was a Dr La Brooy in Langwarrin and that it was he who referred him to have an MRI scan. Early in his oral evidence, the plaintiff indicated that he wished to correct an error in that paragraph and stated that he believed that it was Dr MacKenzie who he had seen at the Westernport Medical Centre on that day.
[4] PCB 20, paragraph 12
18 The plaintiff deposed that he was off work from that time for about five days, before returning to work on about 30 September 2002, whereupon he carried out light duties and was still in considerable pain.
19 Further, a partner of the first defendant, Agnes Kassay,[5] says, at paragraph 6 of her affidavit sworn 22 April 2010:
“After the injury alleged in the application on 25 September 2002, the
applicant reported the injury to my daughter and went to the doctor.”
[5] Defendants’ Court Book (“DCB”) 2
20 In the Employer Claim Report,[6] a representative of the first defendant was asked, at Question 12:
“Describe how you understand the worker’s injury/condition happened?---.”
In answer, it is said:
“He twisted around, which is not a usual work practice.”
[6] PCB 86
21 The matters referred to in the two previous paragraphs are, in my opinion, consistent with a reasonably contemporaneous belief on the part of employees of the first defendant that a particular incident had occurred on or about the date alleged.
22 On 12 January 2003 (less than four months after the alleged accident), the plaintiff saw Dr Forbes Smith. In his report dated 17 January 2003,[7] Dr Forbes Smith refers to the history taken by him that approximately six or seven months before, the plaintiff developed an acute sharp pain in his low- back which radiated to his buttocks whilst lifting a heavy chair off the ground, having to lift and twist at the same time.
[7] PCB 34
23 In the Worker’s Claim Form,[8] signed by the plaintiff on 2 October 2002, he was asked, at Question 27:
“Did you receive first aid or medical attention for this injury/condition?---”
The plaintiff responded:
“Went straight to the doctor.”
[8] PCB 83
24 When asked what doctors are or will be providing regular treatment for his claimed injury/condition, the plaintiff provided the names of both Dr La Brooy and Dr MacKenzie.[9] The Claim Form was signed by the plaintiff on 2 October 2002, a date approximately one week after the alleged accident, and on the same day that he first consulted Dr La Brooy.
[9] PCB 87
25 In the Employer Claim Report,[10] the first defendant stated that the plaintiff had returned to work on 30 September 2002.
[10] PCB 87
26 In the Employer Claim Report, there are a number of references to an “attachment”.[11] The attachment is said to provide details as to what the first defendant understood the plaintiff’s condition to be (Question 11), details of other circumstances of which WorkCover should be aware (Question 24) and as to whether or not the plaintiff had made a full return to work (Question 32).
[11] PCB 86-7
27 I raised with the parties the issue of such an attachment during the course of the hearing. No such attachment was ever produced by the defendants. The attachment was one apparently provided by the first defendant to the WorkCover claims agent.
28 Counsel for the defendants submitted that I should not be satisfied that any particular incident took place on or about 25 September 2002. He relied upon the following:
(a)
In Dr MacKenzie’s report dated 9 January 2003,[12] the doctor stated that the plaintiff had attended on 19 September 2002 with back pain and had been referred to the neurosurgeon, Mr Myron Rogers. He stated that the plaintiff next attended on 25 September 2002, stating that whilst he was lifting at work the previous day, he had developed an exacerbation of low-back pain.
(b)
Dr MacKenzie’s clinical notes disclose that on 19 September 2002, the plaintiff had attended a surgery consultation, that Voltaren had been prescribed, and a letter had been written in relation to back pain to the specialist, Mr Myron Rogers. There is no reference to any attendance by the plaintiff on 25 September 2002. The notes indicate that the next attendance at that surgery was on 16 July 2003, at which time the plaintiff saw a Dr Jill Thompson in relation to an unrelated matter. The notes indicate that the next occasion on which the plaintiff attended at that clinic in respect of back pain was 24 July 2003 and at that time, a referral had been given to a masseur, Mr Witt.
(c)
In the plaintiff’s Claim Form dated 2 October 2002,[13] the plaintiff had indicated that the date of the injury was 25 September 2002 at 3.00 pm and that he had ceased work as a result of this injury on 2 October 2002 at 12 noon. In the Claim Form, he indicated that the injury had arisen gradually over a period of time. The injury was described as lower back pain with three bulges. Questions 17, 18, 19 and 20 all enquired into details of what the plaintiff was doing and what happened at the time of the accident, how exactly he was injured and the exact location of the injury. None of these questions were answered by the plaintiff in the Claim Form. At Question 21 on the Claim Form, the plaintiff was asked what happened that caused or contributed to his injury. His written response was:
[12] PCB 43
[13] PCB 83
“Continuous bending and lifting at a low level.”
[14] Exhibit 6
(d) In short, there was no mention in the claim form of any specific incident on 25 September 2002 and, in particular, no mention of lifting a park bench or seat. (e) The clinical notes of the Langwarrin Medical Centre[14] disclose that the earliest time that the plaintiff was seen by Dr La Brooy or any other doctor at that clinic was Wednesday, 2 October 2002, approximately one week after the alleged accident. Dr La Brooy’s notes refer to the fact that the plaintiff is a carpenter with low-back pain for four years. The history obtained was that the plaintiff had seen Dr MacKenzie earlier and was on WorkCover. The notes indicate that there had been a referral to Mr Myron Rogers, neurosurgeon, and an appointment had been arranged for 4 November 2002. Dr La Brooy prescribed an anti- inflammatory, Vioxx. Thus, it was submitted that the evidence did not disclose that Dr La Brooy had seen the plaintiff on 25 September 2002 and that when he did see him on 2 October 2002, there was no history given of any incident occurring on or about 25 September 2002. 29 Accordingly, counsel for the defendants submitted that there was no medical evidence confirming that any incident had occurred on or about 25 September 2002 and that the Claim Form made no reference to any such incident.
30 Whilst the absence of a reference to an attendance on Dr MacKenzie in his clinical notes is puzzling, I consider that it is probable that the plaintiff did attend either Dr MacKenzie or Dr La Brooy on the date of the accident. The plaintiff did advise his boss’s daughter on that date that he had suffered an injury and was going to see a doctor.
31 The contents of the Employer Claim Report is consistent with an understanding by the first defendant that an incident had occurred at that time or shortly before.
32 The plaintiff was not good with recollection of dates. However, the history given relatively contemporaneously to Dr Forbes Smith is consistent with such an incident occurring on or about the relevant date. I had the opportunity of observing the plaintiff give evidence in this aspect of the case. I consider his evidence in relation to it was truthful and I accept it.
33 Further, in cross-examination, counsel for the defendants did not challenge the veracity of the plaintiff’s evidence on this issue.
34 In the circumstances, I am satisfied on the balance of probabilities that there was an incident that occurred in the course of the plaintiff’s work for the first defendant when, on or about 25 September 2002, he suffered acute pain to his low-back when he lifted a heavy bench or seat.
The Plaintiff’s Condition Prior to 25 September 2002
35 The plaintiff commenced employment with the first defendant in November 1994 as an apprentice cabinetmaker, then aged seventeen years. He completed his apprenticeship and continued working for the first defendant as a cabinetmaker until October 2002, then aged twenty-five.
36 The work that he performed from 1994 consisted of a wide range of manual tasks, carried out at ground level or on low benches and which often involved heavy lifting. The business was a small operation and, more often than not, there was nobody else available to assist him with the lifting of heavy items.
37 By about 1997, after about three years of employment with the first defendant, he commenced to experience low-back pain. The clinical notes of the physiotherapist, Mr Goodison,[15] disclose he was treated in respect of low- back pain at that time. He continued working and first saw his general practitioner, Dr MacKenzie, concerning low-back pain in about 1999. He states that by that time, the pain in his low-back was becoming “a real problem” for him.[16] He was treated with anti-inflammatory medication and advised to do exercises and to limit his duties at work. It was hard to do so, working within a small business such as that of the first defendant.
[15] Exhibit 4
[16] Plaintiff’s Court Book (“PCB”) 19, paragraph 9
38 The plaintiff deposed that from about 1997, he experienced low-back pain. Over time, the pain came on more frequently and the level of pain also increased. The pain was usually associated with periods of heavy work. He says that he would often come home at the end of the working day with “considerable back pain”.[17]
[17] PCB 18
39 His evidence was that at no time from 1997/8 had he been free of back pain.[18]
[18] Transcript (“T”) 32
40 The clinical notes of Dr MacKenzie[19] indicate that the plaintiff attended in June 1999 and was diagnosed with a back strain. The plaintiff was seen at Dr MacKenzie’s surgery on isolated occasions in 1999 and 2000 for unrelated matters. In October 2001, the plaintiff attended and was prescribed the anti- inflammatory medication, Voltaren, but it is not clear from the notes whether this related to back pain or unrelated knee pain.
[19] Exhibit 3
41 In his report of 9 January 2003,[20] Dr MacKenzie confirmed that the plaintiff had first been seen at that medical centre in June 1999, at which time the plaintiff complained of low-back pains for the previous two years. He next attended in February 2002 with low-back pain, which had developed whilst at work. There is no mention of this attendance in the clinical notes. The doctor’s report and the clinical notes indicate that the plaintiff next attended on 26 April 2002 with back pain, tenderness at the L5 level and a reduced range of movement. At that time, he was wearing a back brace at work in order to reduce his back pain caused by bending over. The history taken by Dr MacKenzie at that time was that the plaintiff had seen several physiotherapists and chiropractors and treatment consisted of heat, massage and anti-inflammatory medication (diclofenac). Avoiding aggravating activities, such as bending at work, was temporarily improving his symptoms.
[20] PCB 43
42 On 26 April 2002, Dr MacKenzie referred the plaintiff for a CT scan of his lumbosacral spine. His clinical notes are sparse and his report contains no reference at all to that referral. I consider it unlikely that a CT scan would have been considered by Dr MacKenzie unless the plaintiff was suffering significant low back symptoms.
43 The CT scan dated 26 April 2002[21] disclosed:
[21] PCB 45
(a) minor general disc bulging at L3-4 which slightly narrowed the foramina and abutted the spinal cord without significant indentation; (b) there was similar disc bulging at L4-5 with slight narrowing of the right foramen and a significant indentation of the cord; (c) a central disc bulge at L5-S1 with some compression to the cord, causing some reduction in the fat pad. There was some spinal stenosis. 44 The defendants purchased a back brace for the plaintiff in 2002 which he wore when he worked.[22]
[22] PCB 69
45 The plaintiff attended Dr MacKenzie on 19 September 2002 (approximately one week before the relevant injury) in relation to back pain. At that time, Dr MacKenzie wrote a referral letter to Mr Myron Rogers. It appears that the plaintiff did not see Mr Rogers at any time. I consider it most unlikely that Dr. MacKenzie would have referred the plaintiff to Mr Rogers unless his symptoms were significant.
46 The plaintiff saw the physiotherapist, Mr Goodison, in relation to his low-back problems in April 1997, May 1997, July 2001, September 2001, twice in May 2002 and in June 2002. At the attendance in July 2001, the physiotherapist’s notes refer to worsening low-back pain, “after game and after half time”. This appears to be a reference to football. The clinical notes relating to 21 May 2002 refer to “continual low-back pain”. On 28 May 2002, the notes refer anti- inflammatories being helpful over the previous two weeks. The next attendance appears to be 6 June 2002, but it refers to the plaintiff having quit cabinetmaking and working at Bunnings. This must be a reference to 2003.
47 The plaintiff gave a history to Mr Troy in November 2002[23] that he had, over the years, had a sore back, lots of stiffness and that that was from working, assembling furniture on the ground on the factory floor.
[23] DCB 7
48 There appears to be no other medical evidence concerning the plaintiff’s pre 25 September 2002 condition.
49 The records of the Tyabb Football Club[24] indicate that the plaintiff played eighteen senior games for the Club in the 2000 season, fifteen senior games for the Club in the 2001 season, and thirteen senior games and four reserve games in the 2002 season.
[24] Exhibit 10
50 Mr Troy took a history from the plaintiff on 1 November 2002 that he had missed the first six games of the 2002 football season, although the reason for this is not recorded. The early part of the 2002 football season would coincide with the attendances on Dr MacKenzie in April of that year and the referral for a CT scan of the lumbar spine later in that month. It seems likely to me that the plaintiff missed the first six games of the 2002 season as a consequence of low-back pain.
51 Further, I note that the plaintiff had been in full-time employment with the first defendant from 1994 and I accept his evidence that his employment involved a good deal of heavy lifting. The plaintiff was asked whether, whilst working for the first defendant, he had taken time off work before the incident of September 2002.[25] His evidence was that there had definitely been sick days taken, but that he could not remember whether they were because of his low- back problems or because of some other problem.
[25] T 144
The Nature of the Injury Suffered on 25 September 2002 and its Consequences
52 As previously indicated, I accept that the lifting injury alleged by the plaintiff did occur and that he attended upon a doctor on or about 25 September 2002. I consider it likely that the plaintiff saw Dr MacKenzie on that date. Dr MacKenzie states[26] that on examination, there was tenderness in his lower lumbar spine in the region of the fourth and fifth lumbar vertebrae and his range of movement was reduced. Anti-inflammatory medication was prescribed and he was advised to avoid aggravating activities such as lifting and bending. Dr MacKenzie says this required time off work from 25 to 29 September 2002 and he was to return to work on 30 September 2002 restricted to light duties, requiring no lifting or bending for one week. This is consistent with the date of return to work nominated by the first defendant in the Employer Claim Report.[27]
[26] PCB 43
[27] PCB 87
53 Dr MacKenzie considered that there had been an exacerbation of a chronic back problem that the plaintiff had suffered since about 1997.[28]
[28] PCB 43
54 The plaintiff returned to work for approximately one week. He deposes[29] that his boss advised him that he was effectively useless to him if he was only able to carry out light duties, and that he was forced to resign.
[29] PCB 20
55 The plaintiff consulted Dr La Brooy at the Langwarrin Medical Centre on 2 October 2002. His clinical notes indicate that he was given a history by the plaintiff of low-back pain for four years and that he had been seeing chiropractors and physiotherapists. Dr La Brooy was aware that the plaintiff had previously seen Dr MacKenzie and had been referred to Mr Rogers. It appears that he issued a WorkCover capacity certificate on that date for approximately one month off work.
56 A WorkCover claim was submitted by the plaintiff in early October 2002 and that claim was accepted.
57 Within a few weeks of the cessation of his employment with the first defendant, the plaintiff obtained a job with Bunnings at Mornington. His job was in the tool shop and involved selling power tools. He remained there for about six months until May of 2003. He deposed that the work at Bunnings aggravated his back pain and he left and obtained a job with BlueScope Steel at that time. He was employed mainly as a crane driver, which involved using a remote control device to operate an overhead crane. The plaintiff deposed that he had gone to BlueScope Steel because he understood there would be no heavy lifting involved there.
58 The plaintiff’s recollection was that during 2003, he had remained under the care of either Dr MacKenzie or Dr La Brooy. However, the clinical notes tendered from Dr La Brooy’s surgery[30] indicate that he did not attend that clinic at any time in 2003. The notes of Dr MacKenzie[31] and Mr Goodison[32] indicate that the plaintiff attended on three or four occasions on each of them during 2003 in respect of his back.
[30] Exhibit 6
[31] Exhibit 3
[32] Exhibit 4
59 The plaintiff continued playing football with the Tyabb Football Club, playing sixteen senior games and three reserves games in the 2003 season.[33] I shall return to the evidence concerning football later in these reasons.
[33] Exhibit 10
60 The plaintiff’s evidence was that he continued to suffer from low-back pain virtually every day, although he did have good days and bad days.
61 He has remained in employment with BlueScope where he currently earns in excess of $80,000 per year. In April 2006, the plaintiff applied for a transfer within the BlueScope company to a new position at Westernport. As part of his application for that internal transfer, he was required to fill out a number BlueScope documents.[34] Those documents consisted of questionnaires which the plaintiff completed on 5 April 2006 in the company of the physiotherapist who attended at BlueScope, Geoff Van Gameran. Of relevance I note the following.
[34] DCB 50-59
(a)
When asked whether he had ever suffered an injury to his back, the plaintiff answered that he had suffered a back strain when aged twenty- two, that is, in approximately 1999.[35]
(b)
When asked, “Have you ever suffered an injury to any of the following, either work, sports related, or other?”, the plaintiff circled only the reference to the knee and not the back.[36]
(c)
When asked what was his “present general state of health”, the plaintiff wrote, “Very good – exercising three to four times a week, football, boxing, surfing.”[37]
(d)
When asked whether he had ever had back or muscular problems, he indicated that he had, and wrote “strained back muscle”.[38] His evidence was that, at that page, Mr Van Gameran, who was assisting him in the completion of the document, had written the additional words - “few years ago”.[39]
[35] DCB 50
[36] DCB 50
[37] DCB 54
[38] PCB 54
[39] DCB 54
62 Accompanying those documents were a number of pages completed by a medical examiner whose identity is not known. I note that the medical examiner, on 5 April 2006, considered the plaintiff fit for the following duties (in addition to others) – machine operator, heavy manual work, light manual work and motor vehicle driver. The medical practitioner’s overall comments were:
“Fit, past knee arthroscopy, past back sprain.”[40]
(my emphasis).[40] DCB 59
63 I consider that the information given in the answers by the plaintiff and the unidentified medical practitioner conveyed to BlueScope that, notwithstanding that the plaintiff had suffered a back strain in the past, he was, as at April 2006, fit for a wide range of work duties including heavy manual labour. This is somewhat surprising given the findings on the 2002 CT scan and the 2003 MRI scan of multi-level disc degeneration.
64 The plaintiff was successful in his application for internal transfer and has remained with BlueScope until the present time. He works on a shift basis where he works four consecutive twelve-hour shifts following by two or three days off. He worked both twelve-hour day shifts and twelve-hour night shifts.
Football
65 It is probable that the plaintiff missed the first six games of the 2002 season because of back pain. After 2002, he continued playing Australian Rules Football with the Tyabb Football Club for each of the six football seasons from 2003 to 2008 inclusive. He was cross-examined at length by counsel for the defendants about this.
66 The history recorded by various medical practitioners concerning the plaintiff’s involvement with football was as follows:
(a) Mr Troy, 26 November 2003:[41] [41] DCB 16
“He does not play any organized sport.”
(b) Mr Schutz, 12 September 2006:[42] [42] DCB 20 at 21
“He played football for Tyabb Football Club for a number of years
until 1999.”
(b) Mr Gale, 19 November 2007:[43] [43] DCB 28 at 29
“He has not tried to play much sport, as most physical activities are associated with back pain, but he does a lot of ocean swimming, which he finds of some symptomatic benefit to him.”
(c) Mr Weaver, 11 February 2009:[44] [44] DCB 34 at 35
“As far as recreational activities are concerned he told me that he had discontinued most of his previous sporting activities; he confirmed that he had not played football since he was younger, anyway. His back pain now makes it difficult for him to surf regularly.”
(d) Mr Jones, 14 April 2010:[45] [45] DCB 41 at 42
“Mr Garel, who was a keen footballer, said he did attempt turn out for games in 2006 and again in 2007, but his back was so painful that he had to give this up. He has not played or trained since that time.”
(e) Mr Kossmann, 22 June 2011[46] “Before the pain issues in his lumbar spine, he often played Aussie Rules football and was surfing. He tried to surf again approximately one year ago, however after this he could barely move and gave the sport up.”
[46] PCB 66 at 67
67 Each of these histories is inaccurate.
68 I was told by both counsel that the records of the Tyabb Football Club had been subpoenaed and inspected by the parties prior to the date in March 2011 when this matter was originally listed for hearing. Notwithstanding, the plaintiff made no mention of them in either of the two affidavits sworn by him in 2011.
69 In his affidavit sworn 16 December 2009, the plaintiff deposed:
“I was previously a keen footballer but found that the level of physical
activity required was becoming too much for me.”[47]
[47] PCB 21-22
70 In his affidavit sworn 24 March 2010, the plaintiff deposed:
“I have not got back to football. This was a real passion of mine and I
also enjoyed the social aspects of playing and training.”[48]
[48] PCB 26
71 In his affidavit sworn 10 August 2011, the plaintiff deposed:
“In the past I enjoyed football although had to give it away.[49]
[49] PCB 21
72 In relation his playing football, his oral evidence included the following:
(a)
That there were some occasions when he did not play in a match but another Tyabb player may have worn a guernsey with his number on it (that is, the club and league records might be wrong);[50]
(b)
There were some matches in which he did play but failed to complete the whole game;
(c)
He could not recall giving the histories referred to above to the doctors involved;
(d)
Whereas before September 2002 he generally played in the centre or as a ruck-rover and was thus very much involved in the play, in more recent times after his injury he played more at full forward which meant he was not involved so much in the play;
(e)
After the accident he was not able to train much, often attending to run a few laps, a few handballs, and for a massage.
[50] T 78
73 The records of the Tyabb Football Club indicate that the prior to the 2003 football season, the number of games played by the plaintiff varied from year to year. The records show that he played:
ƒ seventeen games in 1996; ƒ five games in 1997; ƒ eleven games in 1998; ƒ five games in 1999; ƒ eighteen games in 2000; ƒ fifteen games in 2001; ƒ seventeen games in 2002; ƒ nineteen games in 2003; ƒ twelve games in 2004; ƒ seven games in 2005; ƒ eight games in 2006; ƒ twelve games in 2007; ƒ twelve games in 2008.
74 A season consists of twenty-one games.[51]
[51] T 133
75 The plaintiff’s shiftwork would have required him to work on various Saturdays and Sundays.
76 I consider that the inaccuracies contained in the plaintiff’s histories to medical practitioners cannot be explained as being inadvertent; nor would they be explained on the basis of mistakes made by the medical practitioners concerned in recording the history provided to them. I appreciate that from time to time practitioners do make errors. However, given the number of medical practitioners concerned, I consider it extremely unlikely that they would have all made errors when recording the plaintiff’s football history.
77 I note in particular:
(a) the history given to Mr Troy in December 2003, barely three months after the 2003 season, in which the records indicate that the plaintiff played nineteen games. (b) the history given to Mr Weaver in February 2009, barely five months after the end of the 2008 season. 78 In none of the three affidavits sworn by him did the plaintiff attempt to provide a frank and full account of his involvement in football since September 2002.
79 The fact that the plaintiff was able to continue playing football after his injury for a considerable period of time is of significance to the issues that have to be considered by me. Australian Rules Football is a high contact sport. Players regularly have to reach for a high ball and reach for a low ball at ground level whilst moving quickly and in contested situations. The plaintiff agreed that tackling and bumping was fierce in his league.[52] Playing would inevitably involve a considerable amount of bending and twisting. Inevitably, the plaintiff would have been bumped, tackled and at times would have fallen to the ground. I consider that it is unlikely that the plaintiff would have been able to continue playing football for six seasons following the accident if the level of his pain and restriction of movement was significant.
[52] T 82
80 I consider that the plaintiff, in both his affidavits and in the histories given to various medical practitioners, has consciously attempted to create the impression that he had not played much, if any, football since the September 2002 incident as a consequence of injuries sustained in it. This does not reflect well on his credit.
81 The plaintiff described football as his passion. That being so, it would be expected that he would have told each of the doctors that he saw of any difficulties that he was experiencing with football. Further, I consider he would have given a full account of any such difficulties in his affidavit material.
82 The plaintiff also gave evidence that he had been a keen surfer before September 2002. In his affidavit sworn 16 December 2009, he said that he could still surf fairly infrequently but then would pay for the exertion with increased and sometimes quite intense back pain for a day to a few days afterwards.[53] In his affidavit sworn 24 March 2011, he said that he still tried to surf, although very rarely nowadays.[54] In his affidavit sworn 10 August 2011, he said that he had enjoyed surfing although because of the pain caused by it, he had had to avoid that activity.[55]
[53] PCB 22
[54] PCB 26
[55] PCB 32
83 I accept that surfing, although not involving body contact as such, is an activity which requires considerable use of the back muscles, both in paddling and also moving from a lying position to a crouching and standing position. The plaintiff gave evidence in cross-examination[56] that in late November 2005, he had undertaken a five-day surfing trip in northern New Guinea with friends. Such a trip, which would have involved him surfing for a number of consecutive days, was not mentioned in any of his affidavits.
[56] T 71
84 The history given to Mr Kossmann[57] in 2010 was that he had tried to surf again (that is, since “the pain issues in his lumbar spine”) but could barely move afterwards and gave the sport up. Mr Kossmann was given no history of a five day surfing trip in 2005 or of any difficulties encountered.
[57] PCB 67
85 On occasions up until 2005, the plaintiff has also engaged in snowboarding, a sport involving agility and the ability to twist and bend, and the likelihood of falls.
Surveillance of the Plaintiff
86 During cross-examination of the plaintiff, he was shown DVD film[58] taken of him on 7 August 2011, approximately one week prior to the hearing. The film was of approximately 32 minutes’ duration. Much of it showed the plaintiff sitting at a picnic table with friends and family, including his young child. Counsel for the defendants drew my attention to the following:
[58] Exhibit 11
(a) The plaintiff was able to bend to pick up his young child on a number of occasions; (b) On occasions the plaintiff bent relatively fully from the waist with relatively straight legs; (c) The film did not show the plaintiff as being restricted in movement or in any obvious pain. 87 I consider that the film did show the plaintiff bending relatively low in order to either pick up his child or to do up the child’s shoe laces on three or four occasions. On those occasions, his back was kept relatively straight and he appeared to bend from the hips. He did not appear to be in any obvious pain. I noted that on two occasions when he reached forward and into the back of his utility vehicle, the plaintiff placed one hand on the frame of the vehicle to support himself whilst reaching in with the other.
88 The plaintiff was not depicted performing any heavy lifting or any particularly athletic movements. I consider that the film does not assist the case of either party to any degree.
89 I note that the defendants elected not to show the film to any of the doctors engaged by them to examine and report on the plaintiff; nor was the film shown to Mr Kossmann whilst he was in Court.
90 At the request of the plaintiff, counsel for the defendants admitted that further earlier periods of surveillance had been undertaken; namely, one hour on 13 February 2011, 2.5 hours’ surveillance on 19 February 2011 and 5 hours’ surveillance on 26 February 2011. It was admitted that there was an additional DVD film of approximately nine minutes taken of the plaintiff on the latter date. The defendants did not seek to show that earlier film or rely on any other aspect of that surveillance. I infer that such material would not have advanced the defendants’ case but otherwise do not speculate as to what it showed.
91 I do not consider that the film assists me in determining the plaintiff’s current level of impairment, loss of spinal function or level of pain.
The Aggravation Issue
92 The plaintiff had suffered from lower back problems for at least five or six years prior to September 2002. He continues to suffer from low-back pain. The issue in this case is the degree to which the September 2002 lifting incident aggravated the plaintiff’s low-back condition and whether that degree of aggravation amounts to a “serious injury” as defined in the Act.[59] The plaintiff carries the onus of establishing that it does.
[59] Petkovski v Galletti (1994) 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 2489.
93 I must compare the state of the plaintiff’s low-back and, in particular, any impairment or any loss of spinal function before the date of the injury with his condition and any impairment or loss of function after the injury and, more particularly, at the current date.
94 The plaintiff relies upon the following evidence:
(a)
That there was a difference in the quality of his low-back pain after the incident.[60] His evidence was that up until 2002 he suffered from a dull ache but after 2002 it was a sharper pain. In the context of the evidence given by him at the time, I accept that he was referring to after 25 September 2002. I note, however, that at his consultation with Mr Schutz in September 2006, his complaint at that time was of a constant dull ache.[61]
(b)
That at BlueScope he had had a fair bit of time off work and had been on light duties a fair bit recently;[62]
(c)
Whilst at Bunnings he had found the work handling power tools too heavy for him;
(d)
That he had had a passion for Australian Rules Football; that after September 2002 his capacity to train for and play in matches was reduced; and finally, after 2008, he ceased playing;
(e)
He had been forced to give away surfing and snowboarding because it was too painful.
[60] T 143-144
[61] DCB 23
[62] T 144-145
95 The plaintiff tendered a number of medical reports which I have set out above. These reports are, in my view, of limited assistance to the plaintiff’s case.
96 Mr MacKenzie had seen the plaintiff on a number of occasions before and after September 2002. However, his report dated 9 January 2003 contains no comparison to the plaintiff’s condition before and after the incident and no assessment of the extent of aggravation caused by the incident. It was Dr MacKenzie’s view, as at the date of his report, that the plaintiff had suffered an L5-S1 intervertebral disc prolapse with associated spinal canal stenosis. This opinion appears to be based upon the April 2002 CT scan. The MRI scan had not been performed as at the date of his report. Dr MacKenzie states that that condition was the result of his employment (without stating when or over what period) and the direct result of the amount of bending and lifting that is required whilst cabinetmaking. He considered that his capacity for pre-injury employment (cabinetmaking) was at that time greatly reduced, but that he would be suitable for alterative employment or retraining. He thought the incapacity was likely to be permanent. Dr MacKenzie’s report is of little assistance, in that it appears that at the time that report was written, he had seen the plaintiff on two occasions since the accident. The report is dated about eight and a half years ago.
97 There was no report from Dr La Brooy.
98 Dr Forbes Smith had not seen or treated the plaintiff prior to January 2003. He has no knowledge of the plaintiff’s condition prior to the lifting incident of September 2002 and did not express an opinion as to the degree of aggravation caused by that incident. His diagnosis was that there was mechanical back pain subsequent to chronic disc degeneration at L5-S1 with a central bulge compressing the cord at that level, and a thickened ligamentum flava, which was causing some spinal canal stenosis. He did not regard the plaintiff as a candidate for surgical intervention. In his report of 24 March 2003, he defined the problem as being facet joint arthropathy arising from wear and tear on the facets because of underlying disc degeneration. He appears to have accepted, in his report dated 20 June 2003, that the plaintiff suffered from low-back pain which was sometimes crippling and radiated to both buttocks without any radiation to the lower limbs. The history that he obtained was that the plaintiff was sometimes “quite crippled” at the end of the day when he returned home.
99 Mr Richard Pease saw the plaintiff in September 2003 when he conducted L2-S1 radio-frequency denervations. The same procedure was conducted again in June 2005. In his report of 4 July 2005,[63] Mr Pease reported that the plaintiff had a very significant improvement in his symptoms and that overall the plaintiff was delighted. Mr Pease was unable to comment on the plaintiff’s pre-September 2002 state. There is no report from Mr Pease post-dating July 2005. The plaintiff did not return to Mr Pease after July 2005 which would be surprising if the level of pain suffered by him was significant over the following six years.
[63] PCB 42
100 Mr Peirson, a myotherapist, commenced treating the plaintiff in June 2010, nearly seven-and-a-half years after the incident. His report is of no assistance in assessing the degree of exacerbation caused by the September 2002 incident.
101 Likewise, the report of Dr Andrianov dated 15 March 2011[64] indicates that the plaintiff commenced attending at the Beach Street Family Medicine Clinic in February 2006. He states he is aware that the plaintiff had been suffering from chronic lower back pain since 2002. He appears to have no knowledge of the plaintiff’s earlier low-back symptoms.
[64] PCB 61
102 There are two reports from Dr J Robinson, both dated 22 March 2011. The first[65] indicates that the plaintiff was first seen by him regarding a sore back in February 2011. He diagnosed a strain of the paravertebral muscles to the left of the spine which he thought would recover fully in four to six weeks. The plaintiff gave him no history attributing the condition to work. He thought that the muscle injury was unlikely to interfere with the plaintiff’s work after healing in four to six weeks. Of note is that the plaintiff was apparently treated at the Mornington Family Doctors practice as far back as 2007, but Dr Robinson states that the notes do not record treatment for a back injury prior to February 2011.
[65] PCB 63
103 The second report from Dr Robinson of the same date[66] contains a different history. Dr Robinson states that the plaintiff was first seen by him regarding longstanding back pain in April 2009. Again, Dr Robinson says that the plaintiff did not attribute this condition to work and that the flare-up should recover fully in four to six weeks.
[66] PCB 64
104 Mr Thomas Kossmann saw the plaintiff on a medico-legal basis in June 2011.[67] In his report dated 22 June 2011, Mr Kossmann stated that his diagnosis is one of discogenic back pain on the basis of disc bulges at L3-L4, L4-L5 and L5-S1, which were contacting the transversing nerve roots without displacing them at the L3-4 and L4-5 levels. There was a small left paracentral protrusion at the L5-S1 level which contacted the transversing S1 nerve root on the left. He considered that the injury to the plaintiff’s back was caused by the plaintiff’s employment with the first defendant and he did not expect any significant improvement in the condition. On the history given to him, he concluded that the lumbar spine problem had caused a major impact on the plaintiff’s social, domestic, recreational and sporting life. In his report, he concluded that the injury had been “exclusively” caused by employment with the first defendant. He thought that he would never fully recover and that he would continue to suffer from lumbar back pain for the rest of his life.
[67] PCB 66
105 Mr Kossmann gave oral evidence at the hearing and was cross-examined. In his evidence before the Court, Mr Kossmann confirmed that he had seen the plaintiff on one occasion only in June 2011 for approximately thirty-five minutes.[68]
[68] T 157
106 He had no knowledge that the plaintiff had played football at any time after the September 2002 incident. He had the impression that he had given it up. He was asked a number of questions in cross-examination concerning the comparison between the CT scan of April 2002 and the MRI scan of April 2003. He considered the findings on the 2002 CT scan reflected a process that had commenced back in 1997.[69] He thought that the condition was likely to be coming from his heavy lifting work at and prior to that time. He agreed that the 2003 MRI scan showed desiccation of the discs at three levels. However, he was of the view that the MRI scan enabled one to see much finer differences than a CT scan. He described comparing the two scans as comparing apples and bananas.[70] He agreed that the desiccation seen in 2003 may have existed in April 2002 but would not have been picked up in the CT scan.
[69] T 161
[70] T 162
107 Counsel for the defendants quoted from a number of clinical notes concerning the plaintiff with references to various records of flare-ups and exacerbations of the plaintiff’s lower back between July 2001 and February 2007. These mainly related to flare-ups of the lower spine following increased lifting activities at work or after involvement in sporting activities, such as football, golf and snowboarding. Mr Kossmann agreed that any of those exacerbations, lifting incidents or recreational activities could be partly responsible for the plaintiff’s ongoing symptoms.[71]
[71] T 166
108 He agreed that it was impossible at this point for him to say which incidents played a bigger part in the causation of his symptoms. He agreed that one would really need to have a knowledge of what his condition was like in 1997 and compare it with what he saw.
109 Mr Kossmann agreed that leisure activities such as snowboarding could cause aggravations and exacerbations of a spinal condition.
110 He conceded that on the basis of additional information that he had been given as to the plaintiff’s activities and exacerbations following September 2002, he could no longer maintain his view that the condition had been exclusively caused by his employment with the first defendant.[72] He said that the incident on 25 September 2002 was likely to have played a significant part, but there were some other factors playing there. Mr Kossmann, when considering the CT scan of 2002 and the MRI scan of 2003, initially said it was significant that there was thecal encroachment, because that, he said, can cause pain. However, he later said that the thecal encroachment was, in his view, already there in 2002. The difference was that the CT scan did not qualify as to how far the encroachment had progressed. Even though the radiologist had described minor thecal encroachment in the MRI report, Mr Kossmann was of the view that “minor” did not translate to “less pain”. He agreed that in order to discern the change in the condition of the plaintiff’s back, you would need someone who has seen him for most of the time to be able to express an opinion as to the progress of the condition and what has caused it. He agreed that he only had a spot diagnosis and a spot impression, having seen the plaintiff once when attempting to line up all the events between 1997 and 2011.
[72] T 173
111 In re-examination, Mr Kossmann expressed the view that the CT scan of 2002 was not inconsistent with the proposition that the plaintiff had suffered a significant aggravation of his condition on 25 September 2002 in the lifting incident.[73]
[73] T 178
112 Mr Kossmann’ evidence was not always consistent. He was asked what role, if any, the incident of 25 September 2002 had in causing the alterations in the plaintiff’s lifestyle relating to sport and recreation. He replied that with the new evidence that he now had been given at the hearing, he would say that:
“…possibly without this injury he would have been able to play in the way that he wouldn’t have had so much pain, but it is speculative at the end. That he would probably [be] able to play it on a higher level, and that he would be able also to continue to do the training more intense[ly] than what was described to me.”[74]
(my emphasis).
[74] T 181
113 He was asked whether the incident was a cause of any significance of the plaintiff’s lifestyle changes. He initially said that it was his impression was that there was a significant change in his lifestyle at that point.[75] However when further cross-examined about that proposition,[76] he agreed that it was correct that it was speculation on his part, that he could only go on what he had been told and that he would prefer to have been treating at the time in order to express an opinion that was other than speculative or possible.
[75] T 182
[76] T 183
114 The defendants tended a number of reports.
115 In December 2003, Mr Troy, general surgeon, considered that the plaintiff had recovered from the work-related incident of September 2002.[77] He considered that his symptoms related to degenerative changes in the plaintiff’s low-back.
[77] DCB 18
116 In September 2006, Mr Schutz, orthopaedic surgeon, considered there was multi-level degeneration with a disc bulge (but not a prolapse) and therefore an underlying cause to low-back symptoms.[78]
[78] DCB 24
117 In November 2007, Mr Timothy Gale, general and trauma surgeon, considered that the incident in September 2002 was likely to have been a symptomatic aggravation of a pre-existing disease process involving the lumbar spine but that the work-related exacerbation/aggravation had resolved.[79]
[79] DCB 31
118 Mr Hugh Weaver, orthopaedic surgeon, saw the plaintiff in February 2009. He considered that there was a continuing problem of multiple level lumbar disc degeneration contributed to by a number of factors including the continuing effects of the employment incident of 25 September 2002.[80]
[80] DCB 38
119 Mr Clive Jones, orthopaedic surgeon, saw the plaintiff in April 2010. On the basis of the history taken by him, he considered that there had been a significant increase in the level of backache following the bench lifting incident. He thought the plaintiff had chronic low-back pain with spinal irritability and disturbance of lower lumbar function ongoing since the 2002 event.[81]
[81] DCB 43
Conclusion
120 I find that the plaintiff had suffered from symptoms of low-back pain resulting from multi-level disc degenerative disease for some years before 2002. In or around April 2002, those symptoms were sufficient to justify a CT scan. He wore a back brace in that year.
121 I consider that in the incident of September 2002, the plaintiff suffered an aggravation or exacerbation of that pre-existing injury.
122 In order to be satisfied that the exacerbation/aggravation of that pre-existing condition constitutes a serious injury, I am required to make an analysis of extent of impairment of the relevant body function before and after the relevant injury.[82] It is the additional impairment that must be serious. The onus of proving this lies upon the plaintiff.
[82] Petkovski (supra) at 443-4; De Agostino (supra) at [9] and [10].
123 I am not satisfied that the plaintiff has discharged that onus.
124 Whilst I am satisfied that the September 2002 incident occurred and that the plaintiff suffered increased symptoms of pain for a time as a consequence, I am not satisfied that the additional impairment of the plaintiff’s spinal function or the consequences for him are such that, when judged by comparison with other cases in the range of possible impairments or losses, could fairly be described as being more than significant or marked and as being at least very considerable.
125 In cases such as this, the before and after comparison analysis is crucial. Here, the plaintiff had been treated by a physiotherapist, Mr Goodison, for some years before and some years after the incident. The plaintiff did not tender evidence from him. No reason was advanced for the absence of evidence from him. The defendant did tender his clinical notes but these were largely illegible and I found them of little use other than to disclose various treatment dates. Counsel for the plaintiff did not submit that the notes assisted the plaintiff in the analysis of the before and after issue. I infer that evidence from Mr Goodison on this issue would not have advanced the plaintiff’s case.
126 Dr MacKenzie was the plaintiff’s general practitioner for some years before and after the September 2002 incident. His report contains no material that would assist the plaintiff in relation to the before and after comparison to be made. From his report and clinical notes it appears that approximately one week before the incident, Dr MacKenzie considered it appropriate to refer the plaintiff to a neurosurgeon, Mr Myron Rogers in relation to low-back pain. There is no evidence from Dr MacKenzie clarifying this; nor evidence concerning the extent of any additional impairment resulting from the incident.
127 All other medical witnesses had only seen the plaintiff after the incident.
128 In assessing the additional impairment, I have particularly noted the following:
(a)
The plaintiff has been in full-time employment virtually continuously since the incident. Whilst I appreciate that his work at BlueScope might be lighter than his cabinetmaking duties with the first defendant, he has, since at least 2006 worked twelve-hour shifts.
(b)
The plaintiff continued to play Australian Rules Football for six seasons after the incident, eventually retiring from that game after the 2008 season when aged thirty-two. He also continued to surf and to snowboard for some years after. There was no evidence from any person associated with the Tyabb Football Club as to any deterioration in the plaintiff’s ability to play or train following the incident.
(c)
Radiological evidence does not establish any deterioration in the plaintiff’s lumbar spine between April 2002 and April 2003. Although the later MRI showed additional matters, I cannot be satisfied that that those changes were not present at the time of the earlier CT scan.
(d)
There was no medical evidence from any treating practitioner concerning the level of additional impairment after September 2002, notwithstanding that both Dr MacKenzie and Mr Goodison could have been asked to provide such an opinion.
129 For the reasons expressed, I am not satisfied that the plaintiff has established that he is currently suffering from a permanent serious impairment or loss of spinal body function as a consequence of the incident of September 2002.
130 The application will be dismissed.
131 I shall hear the parties in relation to costs.
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