Gelicrisio v Kerry Ingredients Australia Pty Ltd
[2015] VCC 960
•22 July 2015
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05584
| CHRIS GELICRISIO | Plaintiff |
| v | |
| KERRY INGREDIENTS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 8, 9, 10 and 13 July 2015 | |
DATE OF JUDGMENT: | 22 July 2015 | |
CASE MAY BE CITED AS: | Gelicrisio v Kerry Ingredients Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 960 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – lumbar spine – pain and suffering damages only – aggravation of pre-existing degenerative change – “narrative test”
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(a) and (b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Jones v Dunkel (1959) 101 CLR 298; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A McNab with Ms R Dal Pra | Slater & Gordon Ltd |
| For the Defendant | Mr R H Stanley with Ms M Tait | Wisewould Mahony |
HIS HONOUR:
Introduction
1 By way of Originating Motion dated 13 November 2014, the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring common law proceedings to recover damages for injuries to his lumbar spine suffered in the course of his employment with Kerry Ingredients Australia Pty Ltd (the defendant) on or about 30 January 2004 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages only within the meaning of s134AB(37) of the Act.
3 The plaintiff swore an affidavit on 1 July 2014 and was cross-examined. Otherwise both parties tendered medical reports and other materials, all of which I have read.
Relevant legal principles
4 The Court may not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:
“Serious injury means –
(a) permanent serious impairment or loss of a body function. … .”
6 The body function said to be impaired for the purposes of paragraph (a) is the lumbar spine.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities:
(a) The identity of the injury said to be suffered on or about 30 January 2004;
(b) That the resulting impairment from the injury is permanent, in the sense that it is “likely to last for the foreseeable future”;[2]
(c) The consequences to the plaintiff of the injury in relation to pain and suffering must be serious – that is, “when judged by a comparison with other cases in the range of possible impairments … [can be] fairly described as being more than significant or marked, and as being at least very considerable”.[3]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[3]See s134AB(38)(b) and (c) of the Act
8 In determining the application, the Court:
(a) Where the injury consists of an aggravation of a pre-existing degenerative condition, must make a comparison between the condition of the plaintiff’s spine immediately before the 2004 injury with his condition thereafter, and an assessment made of the extent of the additional impairment, such that the additional impairment must, of itself, be assessed as “serious”;[4]
[4] Petkovski v Galletti [1994] 1 VR 436 at 443
(b) Must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[5]
[5]See s134AB(38)(h) of the Act
(c) Must make the assessment of “serious injury” at the time the application is heard;[6]
(d) Must take into account that the question of whether an injury satisfies the narrative test is largely one of impression and value judgment. [7]
[6]See s134AB(38)(j) of the Act
[7] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592
The issues
9 Both parties identified the areas of dispute as follows:
“9.1 Causation:
Is the plaintiff’s current impairment referrable to the work-related incident on 30 January 2004?
9.2Aggravation:
Does any aggravation of the pre-existing condition, on its own, give rise to ‘very considerable’ serious injury consequences?
9.3Disentanglement:
Have the consequences of the organic physical injury been sufficiently disentangled from any psychological/psychiatric consequences?
9.4Credit:
Has the plaintiff’s credit been sufficiently impugned, in particular with respect to histories given to various doctors?
9.5Range:
Given that the plaintiff has returned to full-time lighter employment as a sales person, can it be said that the pain and suffering consequences can be regarded as ‘serious’[8]?”
[8]Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
Impairment of the spine prior to 30 January 2004
10 The plaintiff was born in February 1976 in Malta and moved to Australia at the age of four. He completed Year 11 at Williamstown High School and thereafter, started working with an employment agency for a short time.
11 The plaintiff commenced employment with Mauri Foods on 19 September 1994, which company was the previous owner of the present defendant. His job, by any measure, was quite heavy, in that he was lifting 25-kilogram bags of ingredients, such as cake mixes, from below his waist to above his head and thence into a mixer. He was shifting between 6 to 10 tonnes of ingredients per day, which, on my calculations, amount to somewhere between 240 and 400 25-kilogram bags per day. He also had to regularly lift 25-litre jerry cans of oil.
12 At some time in 1995, the plaintiff noted a gradual onset of a twinge of pain in the right side of his lower back. He kept working. As he lifted one can from the floor to waist height, there was a sudden increase in back pain, with pain in both groins. His spine felt “twisted”. He saw his local doctor and was off work for one to two weeks. The pain improved and he returned to work and worked in the light duties area for four months. The pain then went away completely and he returned to another section known as “the vinegar section”.[9]
[9]Transcript (“T”) 16–18
13 One month after returning to work, the plaintiff re-injured his back at work, necessitating a fortnight off work, with daily physiotherapy treatment. Thereafter, at least until late October 1995, he was on restricted full-time duties consisting of:
· No bending, pushing or pulling
· No sitting for more than 1 to 1.5 hours
· No lifting above 5 kilograms.[10]
[10]Exhibit 2
14 The plaintiff was also recommended by an occupational therapist at that time that he should not return to his former duties in the pre-weigh area but should be transferred to alternative duties in the “labelling” area.[11]
[11]Exhibit 2
15 In approximately January 1996, the plaintiff suffered further back discomfort due to repetitively scooping out ingredients from large bags whilst bending in a fixed position.
16 Additionally, by 10 December 1996, he had further symptoms in the lumbar spine. He reported to the general practitioner that on 9 December 1996, he had noticed a click in his back, with pain radiating down “both sides but more importantly down the lateral side of the right thigh”.[12] However, by early January 1997, Dr Woods certified the plaintiff as fit to return to his normal work arrangements in the pre-weigh area.[13]
[12]Exhibit E
[13]Exhibit E
17 When examined by occupational health physician, Dr Wallin, on 9 January 1997, he found the plaintiff to have:
“… a full and free range of back movement with no detectable sign of any pathology at all.”[14]
[14]Exhibit 3
18 Thereafter, the plaintiff attended his general practitioner on 19 May 1998, 24 May 1998, 29 May 1998 and 4 July 2001. At the latter consultation, the plaintiff gave a history of –
“… recurrent back complaints since 1995. OK for past four months. Bent to pick up a hose today. Resulting in sudden severe low back pain and resulting in a ‘dragging’ feeling in lower abdomen and testicles. … Usually settles in three to four days.”[15]
[15]Exhibit E
19 The plaintiff was prescribed Voltaren and given a certificate for modified duties for one week.[16]
[16]Exhibit E
20 The plaintiff again attended his general practitioner on 26 November 2002 and gave the following history:
“Every now and then back gives on him. Right side. Tender L5-S1 level on the right side.”[17]
[17]Exhibit E
21 There was no further attendance on his general practitioner for his lumbar spine prior to the subject injury in January of 2004.
22 On 24 May 2005, consultant neurosurgeon, Mr David Brownbill, reported to the WorkCover insurer concerning the 2004 injury. He recorded the following history with respect to the pre-existing back condition as follows:
“Every six months since 1995, he would have a recurrence of back pain and would take up to two weeks off (as annual leave) and the pain would recover fully on each occasion. He would return to his full normal job.”[18]
[18]Exhibit P, Joint Court Book (“JCB”) 143
23 This history appears consistent with the clinical records of the general practitioner. The clinical notes from the practice reveal that the plaintiff was treated in 1995 on twelve occasions with respect to his lumbar spine; in 1996, on four occasions; in 1997, on two occasions; in 1998, on three occasions; in 1999, on zero occasions; in 2000, on two occasions; in 2001, on two occasions; in 2002, on two occasions, with nil in 2003.[19]
[19]Exhibit R
24 The plaintiff was referred to treating neurosurgeon, Mr G Brazenor, on 9 July 2004. He recorded the following history:
“Prior to this in 1995 he had been working elsewhere as a ‘pre-weigher’ which job involved lifting 25-kilogram bags and drums. As he pulled out a large sieve on one particular day it stuck and then came out all of a sudden and he struck his back on a metal pipe behind him, and then fell onto his buttocks on a metal grill. He immediately felt right buttock pain but kept working nevertheless and subsequently, as he lifted a 25-kilogram drum, the pain increased severely such that he had collapsed. He was taken to a general practitioner and then sent for physiotherapy and was off work for three weeks and improved. He returned to work on light duties for two months, but since that injury every six months or so he has had a recurrence of the right buttock pain radiating to the groin. He feels like his spine is twisted, at such times. These episodes are generally self limited within a week or so.”[20]
[20]Exhibit 8, JCB 82
25 The plaintiff conceded under cross-examination that his ability to engage in physical activity would have been restricted during the short periods of flare-ups prior to 2004. Except for those flare-ups, he denied that there was any interference in his ability to play golf, walk up hills or play tennis.[21]
[21]T68–69
26 In his affidavit, the plaintiff described the state of his back prior to 2004 in the following terms:
“I also had some problems with my back prior to 2004 and managed this with physiotherapy, heat treatment and painkillers. The pain was around the bone on the right side of my lower back and was different to the pain I now experience.”[22]
[22]Exhibit A, JCB 21, paragraph 6
27 The plaintiff also swore that his work with the defendant prior to this injury was as follows:
“As part of my role with the defendant I was required to do a lot of heavy and repetitive lifting, pulling and bending. In particular, I was required to drag 15 to 20-metre hoses from tank to tank, multiple times each day. The hoses were heavy and often became tangled with other hoses. I complained about this task to my employer as it was very difficult.”[23]
[23]Exhibit A, JCB 21, paragraph 7
28 With respect to his pre-injury impairment, the plaintiff swore, additionally, as follows:
· “Sporting activities. I used to love playing all sports and particularly basketball and tennis. I was a strong, fit and active person and good at sports. I now have difficulty running as it feels as though my back is not working properly and therefore [I] no longer do these sports.
· Golf was a big passion of mine – it was good exercise, a social outlet and something I loved. I used to play a minimum of four times per week and had a handicap that ranged from 8 to 14. I have tried this from time to time since my injury, however it causes a considerable increase in pain and is no longer enjoyable.
· Sitting/standing in one spot for any length of time. The amount of time varies depending on whether I am having a good day or a bad day, however I generally try to move around as much as possible to avoid stiffening up. I find that if I stand in the one spot for some time I experience pain in my legs.
· Gardening and mowing the lawns. I still try to do this, however this inevitably causes an increase in pain.
· My intimate relationship with my partner. This is now limited and can often cause an increase in pain. I am also less tolerant and get frustrated and angry more easily than I used to. I sometimes take this out on my partner and feel terrible for this afterwards.
· Fishing. I used to really love fishing and owned my own boat. I have since sold my boat as I struggled to manage it after my injury. I could only use it if someone was there to help me to get it in the water. I still try to fish off the pier sometimes, however it is not the same as actually being on the water.”[24]
[24]Exhibit A, JCB 23-24, paragraph 18
Injury prior to January 2004
29 An x‑ray procured by Dr Woods was reported on 26 July 1995 as follows:
“… mild to moderate relative narrowing of the L5-S1 disc space may be developmental although underlying disc protrusion or degeneration could not be excluded. Elsewhere the disc spaces appear within normal limits. … .”[25]
[25]Exhibit D, JCB, 42A
30 A CT scan dated 30 January 2004 and taken immediately after the relevant injury cites:
“CT scan of lumbar spine
Serial sections have been obtained from L1 to S1 and supplemented with appropriately angled slices through L1-2 to L5-S1 discs. There is some central and right posterolateral disc bulging at L1-2. This impresses the adjacent thecal sac and extends into the right L1-2 neural exit foramen.
At L2-3, L3-4 and L4-5 there is no evidence of disc bulging or focal protrusion. No thecal compression is evident.
At L5-S1 there is central and right posterolateral disc bulging or protrusion which is impressing the adjacent thecal sac. The S1 nerve roots do not appear to be compressed. However, there is some asymmetry of origin of the S1 nerve roots from the theca.
No free disc fragment is suggested. There is no bony canal or lateral recess stenosis. Apophyseal joints are unremarkable. The transverse processes of L1 are not fused. This is a minor anatomical variant.”[26]
[26]JCB 42
31 Accordingly, all medical practitioners consider that the state of the plaintiff’s spine immediately prior to the January injury was essentially that as recorded in the above CT scan. All practitioners consider, therefore, that the January 2004 injury was an aggravation of this pre-existing condition where there was a worsening of the clinical state as a result of that injury. There is disagreement, however, as to whether this aggravation was temporary in its effect or whether it had permanent consequences in its own right.
Impairment after January 2004
32 The plaintiff has sworn that:
“8 On or about 30 January 2004, I was in the process of dragging a hose to transfer product from one tank to another. As I bent down to connect the hose to the tank fitting, I felt immediate pain in the middle lower part of my spine, around the hips, into the groin and down my legs. I struggled to move and therefore called out for help.
9 I was assisted to the production manager’s office and an ambulance was called.”[27]
[27]Exhibit A, JCB 21
33 Although the plaintiff swore that he required about “two months off work”, it appears that it was more like two to three weeks. He further swore that he was worried about keeping his job and so he returned to work on light duties before going back to pre-injury duties.[28]
[28]Plaintiff’s affidavit, exhibit A, paragraph 11
34 The plaintiff’s affidavit evidence was that the clinical course was as follows:
“12Over the period following this, I struggled a lot at work and suffered from many aggravations after doing very simple things such as putting on my socks at home, reversing my car over a bump and pouring cereal into a bowl. I was taken to hospital on multiple occasions due to my back pain.
13Despite this, I pushed on at work until approximately (early 2013) when I was made redundant. Work has always been very important to me and I was determined not to give up. I have since been able to find a new job through family connections and have been doing sales work for about 12 months. I am fortunate that this role is pretty flexible and I can move about when I need, do some of my work from home, and most importantly, it does not involve any heavy lifting. My new employer is also sympathetic to my back condition and restrictions.
14Since my injury I have tried various treatments such as physiotherapy, a hydro program and massage. I have been referred to specialists, taken various medications and tried things such as swimming, walking and heat packs.
15My current treatment involves taking pain killers including Panadeine Forte on an as needs basis and walking. As I have struggled with the effects of the stronger pain killers and found the weaker ones don’t work, I try to limit my medication and just put up with the pain. I also use heat packs some nights, pain killers, and I used a back brace for a long time. I have not had much physiotherapy since the injury occurred, as Mr Brazenor did not think it was appropriate for my type of injury. I also see my GP on an as needs basis.
Consequences
16I experience ongoing pain in my lower back and legs. The pain travels down my left and right legs to my toes. I experience constant pins and needles in my legs, which is a very unpleasant sensation. The pain is there regardless of what I do, however increases with activity and gets worse as the day goes on. My back is constantly stiff and locked up and restricts my movement.
17I find lifting, bending, twisting and most physical activity aggravates my condition, and I try to avoid these movements. My back feels as though it is fused and I am therefore unable to bend down. As a result, I have had to modify the way I do things. For example, if I drop something on the floor, I now kneel down to pick it up and try to keep my back straight, or use a pick-up-stick to pick things up.
18I feel as though my pain and limitations affect most aspects of my everyday life. I particularly struggle with the following:
·Interacting with my children. I find it hard to get my daughter in and out of the car and have to be very careful when I do this to avoid aggravating my condition. I also have difficulty playing with my son and I therefore have to say “no” to him a lot which I hate doing. It was my partner who taught him how to ride a bike and play most sports and I feel so sad that I have not been the active dad I always wanted to be. My son always calls me slow coach as I struggle to keep up with him and it is upsetting to me that this the only dad he knows. I am worried that the same thing will happen with my daughter as she gets older. Even now I struggle to pick her up and when I need to, I try to get her to come to me so I can kneel down and do this. I feel like I have been cheated of my fatherhood due to my back condition.
·Sporting activities (see paragraph 28 above). I used to love playing all sports and particularly basketball and tennis. I was a strong, fit and active person and good at sports. I now have difficulty running as it feels as though my back is not working properly and therefore no longer do these sports.
·Golf was a big passion of mine (see paragraph 28 above) – it was good exercise, a social outlet and something I loved. I used to play a minimum of four times per week and had a handicap that ranged from 8 and 14. I have tried this from time to time since my injury, however it causes a considerable increase in pain and is no longer enjoyable.
·Gardening and mowing the lawns (see paragraph 28 above). I still try to do this, however this inevitably causes an increase in pain.
·My intimate relationship with my partner (see paragraph 28 above). This is now limited and can often cause an increase in pain. I am also less tolerant and get frustrated and angry more easily than I used to. I sometimes take this out on my partner and feel terrible for this afterwards.
·Fishing (see paragraph 28 above). I used to really love fishing and owned my own boat. I have since sold my boat as I struggled to manage it after my injury. I could only use it if someone was there to help me to get it in the water. I still try to fish off the pier sometimes, however it is not the same as actually being on the water.”[29]
·Work. I have continued to work since the injury aside from a period of unemployment after my redundancy. However I struggle with the more physical demands of my work and find tasks requiring lifting and bending to be particularly difficult. There have been many days where I just went home and straight to be after work. I feel lucky to have my current job but I do worry about what would happen if I lost this as I feel as though my options and job prospects are very limited now as a result of my injury.
19I really struggle to deal with my ongoing pain and limitations and hate the way my lift has changed as a result of my injury. I used to feel so fit and strong and now feel useless. The future often feels bleak to me and I often have feelings of hopelessness.”[30]
[29]Exhibit A, JCB 23-24, paragraph 18
[30]Exhibit A, JCB 22-25
35 In evidence before me, the plaintiff stated that by the end of his employment in 2012-2013, he was performing his work on his knees when attempting to lift sacks of material, as he was unable to bend from the waist.[31]
[31]T133, L7-21
36 Further, he stated that prior to 2004, he may have played golf by way of 18 holes once a week with his brother and friends and then practised two or three times in addition.[32]
[32]T138, L23 – T139, L7
Aggravation injury 2004
37 Following the January 2004 injury, the plaintiff was taken by ambulance to the Williamstown Hospital and was prescribed Celebrex and Panadeine Forte. The CT scan revealed “L1-2 and L5-S1 disc bulging impinging on the thecal sac”.[33]
[33]Dr Woods, exhibit F, JCB 53
38 Thereafter, the plaintiff was seen by Dr Cheong on 4 March 2004 at Dr Woods’ practice. She took a history of lumbar back pain radiating down the right thigh and posterior knee.[34] She gave him a certificate for restricted duties, with limits to weights under 7.5 kilograms. There was a follow up by Dr Verso, at the same practice, on 29 March 2004, who provided a certificate for modified duties with lifting weight no greater than 10 kilograms. By 23 April 2004, his pain “was quite a bit improved”. However, he was seen by Dr Verso again on 5 May 2004 “when his back gave way again whilst working on a process line”. Thereafter, on 19 May 2004, he revisited his doctor “after he’d developed back pain after he slit a box”. Two days later, Dr Woods noticed that “he still had back spasm.” Once again, he was reviewed by Dr Verso on 9 June 2004 for a flare up of his back pain. He was provided with another work certificate.[35]
[34]Exhibit R
[35]Exhibit R
39 After further follow ups in June 2004, the plaintiff was referred to Mr G Brazenor, neurosurgeon, in July 2004. Mr Brazenor reported back to the general practitioner that “his MRI shows a right paramedian central disc protrusion at L5-S1. At L1-2 there is a broad based right lateral recess protrusion.” Mr Brazenor, at that time, told both the general practitioner and the plaintiff that “he should never lift or bend both at work and at home ever again”.[36] At this point, he was given a WorkCover certificate by Mr Brazenor from 9 July 2004 to 8 August 2004 for modified duties, where he must wear a back brace and not be able to lift below waist height.
[36]Exhibit 8, JCB 83
40 When Dr Woods reported on 13 December 2004, he stated:
“He has been back to see my several times in the last few months with intermittent back spasms and episodes of panic attack.”[37]
[37]Exhibit F, JCB 54
41 However, he further noted:
“With guidance and counselling his pain and anxiety has settled. He has been helped considerably by his rehabilitation provider and his workplace with his duties and all parties are very happy.”
42 As at 7 December 2004, he noted:
“[His] pain has halved and he is happy with his work. He is currently on six hours per day working mainly on the computer at his workplace.”[38]
[38]Exhibit F, JCB 54
43 Dr Woods’ diagnosis at that stage was:
“Disc protrusion at L5-S1 level which is quite symptomatic. He is to work under these restrictions probably for the next five years at least. …
He is enthusiastic about his work and his employer. They have been extremely helpful and provided duties that Chris can do.
He is making enormous efforts to increase his fitness including walking.”
44 Thereafter, I am advised by plaintiff’s counsel, without objection, that the clinical notes reveal that the plaintiff attended his general practitioner on 22 occasions in the calendar year 2004; nine occasions in 2005; six occasions in 2006; seven occasions in 2007; three occasions in 2008; zero occasions in 2009; six occasions in 2010; 15 occasions in 2001, and four occasions in 2012. Thereafter, there were three attendances between June 2012 and November 2014. Also, between July 2004 and December 2012, the plaintiff had attended his neurosurgeon, Mr Brazenor, on sixteen occasions.
45 When seen by Mr Brazenor’s associate, Dr Pam Dagley, on 28 June 2004, she took a history including:
“Walking: Now okay, but after 15 minutes increasing low back pain and legs feel weak.
Sitting: Increases low back pain. Can bring on tingles either (sic) or balls of feet. Okay sitting for half an hour to one hour.
Lying bed: As soon as he (illegible) or gets up feels pain. Wakes in pain. … medications for pain: –
Regular exercise: Walks a lot at work, swimming 1½ hours every second day.
Therapy: Physiotherapy: back exercises.
Back: Leg pain ratio: 50/50.”[39]
[39]Exhibit G, JCB 80A
46 Thereafter, when seen by Mr Brazenor, neurosurgeon, on referral from the plaintiff’s general practitioner on 9 July 2004, he confirmed the history following the 2004 injury to the following effect:
“Further injury was sustained on 30 January 2004 at work when he was pulling a very heavy hose 10 metres in length and full of liquid. He immediately sustained his customary right buttock pain. When he subsequently bent over he collapsed and could not get up. The pain was severe and he was taken to the Emergency Department at Williamstown Hospital and was off work for a week, treated mainly with rest and physiotherapy. Since then (ie: for the next five months until he saw my assistant, Dr Dagley) the pain had continued and he had ‘just managed’ to keep working. The pain had spread to involve both legs at one stage but had then settled. Nevertheless every day Mr Gelcrisio had been experiencing twitches or stabs of pain in the right buttock.”[40]
[40]Exhibit 8, JCB 82-83
47 With respect to activities of daily living, he recorded:
“He would wake in pain during the night or early morning so lying down was not his favourite activity. Walking helped, particularly when he walked around at work. However, he found that if he walked more than 15 minutes at a time this would begin to exacerbate his low back pain and right sided sciatica.”[41]
[41]Exhibit 8, JCB 83
48 He also affirmed that he had improved in the past six months.[42]
[42]Exhibit 8, JCB 87
49 At that stage, Mr Brazenor’s opinion was as follows:
“I formed the impression that Mr Gelcrisio had cumulative changes of wear and tear in his lumbar spine, contributed by his employment and by other activities such as Marshal arts over the years. I felt that there were two convincing incidents of back injury in the course of his employment: one in 1995 when working for his previous employer, and one on 30 January 2004 when working for his current employer. I felt it likely that the L5-S1 disc protrusion had occurred on 30 January 2004 and I thought that it was beginning to heal.”[43]
[43]Exhibit 8, JCB 88
50 Further, Mr Brazenor related, with respect to the plaintiff:
“I told him that his days of recurrent bending at the waist and lifting from below his waist level were over, both at home and at work, and I told him that the only thing he was permitted to lift from heron were his children, and those very carefully. I further pointed out that his disc injuries would take a minimum of five years for full healing by fibrosis and contraction, but I told him that there was a yet a one in ten chance that his condition would deteriorate rather than improve and then he might finally have to contemplate an artificial disc replacement particularly at the L5-S1 level.”[44]
[44]Exhibit 8, JCB 88-89
51 Thereafter, Mr Brazenor reviewed the plaintiff on 23 August 2004 and considered the plaintiff was suffering from a degree of “anxiety neurosis”. However, he noticed that he could flex at the waist to 50 degrees without pain compared to the 30 degrees that he had managed previously. He certified the plaintiff fit to continue full-time employment but wearing the back brace, with the only other restriction being that he must not lift from below his waist level.
52 When reviewed on 25 October 2004, the plaintiff had suffered a further exacerbation of his pain whilst winching a platform at work. Further, he recorded:
“Emotionally he was much improved, however, and I was sure that the antidepressant prescribed by Dr Verso had been responsible for that improvement.”[45]
[45]Exhibit 8, JCB 90
53 Further, he was sent back to work four hours a day but:
“I told him once again to stay well away from bending and lifting duties … .”
54 At that stage (October 2004), Mr Brazenor opined:
“It was my impression that this man sustained two work-related back injuries over the years: one in 1995 when working as a pre-weigher, and one on 30 January 2004 when pulling a heavy hose. I told Mr Gelcrisio right from the beginning of our relationship that as a result of these injuries he would never again do a job involving repeated bending at the waist, the repeated lifting of objects below his waist level, or the lifting of weights (such lifting sanctioned only when it does not involve bending at the waist) in excess of 15 kilograms. These restrictions were permanent, the result of his work-related back injuries, and I told him that they would apply in perpetuity, irrespective of how well he might fair symptomatically in the foreseeable future.”[46]
[46]Exhibit 8, JCB 90-91
55 It would appear that as at October 2004, Mr Brazenor was of the opinion that the two work-related injuries had resulted in a permanent impairment with permanent restrictions on his ability to do manual factory work.
56 Further, it would appear to me that his opinion, at that stage, coincided with the opinions proffered by the defendant’s medico-legal examiners, consultant neurosurgeon, Mr David Brownbill,[47] and consultant surgeon, Mr Michael Shannon.[48]
[47]Exhibit P
[48]Exhibit O
57 When reviewed in March and October of 2005, Mr Brazenor related:
“We even started very gradually getting him back to playing golf thereafter.”[49]
[49]Exhibit 8, JCB 91
58 The plaintiff, for his own part, stated he never got back to playing a full game of golf and was limited to approximately three occasions hitting balls at a CE fairway.
59 Thereafter, the plaintiff attended Mr Brazenor on 3 November 2006 with a history of re-injuring his back on 3 October 2006 while reversing his car over a bump between a driveway and road on his way to work.
“He had suffered the immediate recurrence of pain in his low back and both legs and indeed he had to ring his fiancée on her mobile phone in order for her to help him out of the car and into bed. He had improved somewhat since then, but on examination still had 1/5 spasm of his lumbar erector spinae muscles and could only flex at the waist to 30 degrees before pain in low back and down both legs stopped the exercise.”[50]
[50]Exhibit 8, JCB 91
60 A further MRI scan was arranged on 9 November 2006 and Mr Brazenor thought this was “identical with the scan from 5 July 2004”.
61 On 15 November 2006, the plaintiff was certified back to “non-bending, non-lifting work whilst wearing a back brace”.
62 When reviewed again on 21 May 2007, he was complaining of:
“Constant tingling and numbness in both legs since he had seen me back in July 2004. I consulted my notes and there was no record of any mention of this symptom prior to 21 May 2007.”[51]
[51]Exhibit 8, JCB 91
63 Further, Mr Brazenor said there is no doubt that the plaintiff was complaining to his physiotherapist, Dr David Philips, as at 21 May 2004 of bilateral leg pain[52] and was similarly complaining to his general practitioner, Dr Cheong, on 4 March 2004.[53] In addition, he had been complaining on a number of occasions to Mr Brazenor with respect to leg pain.
[52]Exhibit J
[53]Exhibit F
64 In any event, Mr Brazenor recorded on 12 September 2007 that the plaintiff had been assembling wooden boxes and his back had “seized” on him.
“They couldn’t even sit him in a chair so an ambulance was called and he spent the rest of the day at the Western Hospital in the Emergency Department and had several injections of narcotic, by the sound of it.”[54]
[54]Exhibit 8, JCB 92
65 Additionally, Mr Brazenor stated:
“At this stage I was starting to feel some degree of perplexity about the apparent fragility of Mr Gelcrisio’s spine, if not his psyche.”[55]
[55]Exhibit 8, JCB 92
66 A repeat MRI scan on 21 September 2007 showed:
“Only a single new feature, a very mild central disc bulge at L1-2, but otherwise the scan was identical with those of 9 November 2006 and 5 July 2004.”[56]
[56]Exhibit 8, JCB 92
67 When next seen on 1 June 2009, the plaintiff related:
“Only minimal symptoms from his lumbar spine and good evidence on interview that he was taking no notice of what his spine was telling him. He was still walking once a day and doing ‘normal duties’ at work, wearing the back brace.”
68 A further MRI scan performed on 10 June 2009 showed:
“Moderate degenerative change in his lumbar spine in all discs except L4-5 and L2-3. The scan was unchanged when compared with the previous scan of 21 September 2007.”[57]
[57]Exhibit 8, JCB 93
69 On 15 November 2010, the plaintiff returned to report that:
“Approximately six weeks previously he had been moving some drums at work and had incurred pain over the right posterior iliac crest. The discomfort had persisted and his low back had ‘gone bang’ the weekend following and he had actually had to have three weeks off work. He had returned to work full time at the end of the three weeks and was coping normally. He was unchanged on examination.”[58]
[58]Exhibit 8, JCB 93
70 The plaintiff was next reviewed on 22 March 2011, together with an MRI scan done that day, which was identical with the previous one from 2009.
71 He was reviewed again on 24 August 2011:
“After going over a speed bump in his car on 16 August 2011 and being in quite severe back pain by 18 August 2011. He had been off work since then and on examination had moderate spasm of his lumbar erectus spinae muscles and a reduced lordosis and when I asked him to exhibit back movements he managed about 5 degrees in each direction if that.”[59]
[59]Exhibit 8, JCB 93-94
72 The plaintiff was given a total incapacity certificate for one month. When he was reviewed on 15 December 2011, he was told that the MRI scan on 29 November 2011 was unchanged.[60] It was Mr Brazenor’s opinion, at this stage, that the plaintiff was a “very nervous man and his anxiety magnifies the pain and disability in these minor exacerbations”.[61]
[60]Exhibit 8, JCB 94
[61]Exhibit 8, JCB 94
73 He was next reviewed on 23 May 2012, whereupon:
“His only symptoms were slight aching in the right calf and some numbness in the lateral two toes of the right foot and he felt that they were about 2 per cent of the symptoms that he had suffered in the past. He was working full time but only at office duties. He asked me about golf and once again I told him how to gradually and safely return to that.”[62]
[62]Exhibit 8, JCB 94
74 It would appear that by the time of this consultation in May 2012, Mr Brazenor was of the view:
“This man did have two discernable work-related disc injuries in the past but he has recovered from those. His work limitations now are entirely due to non-work-related degenerative changes in his lumbar spine, temporarily exacerbated at times by the two work-related incidents in the past and many, many non-work-related insults since.”[63]
[63]Exhibit 8, JCB 95
75 Mr Brazenor went on to state:
“Provided this man follows instructions and suffers no further significant injury, he will work to normal retiring age of 65 years with a single embargo on his employment being that he must not do any job where he has to access levels below his waist. Office work would be ideal, but equally he could be a courier for lightweight articles; he could be a security guard on patrol; or he could man a control room in a security firm or in a factory where he did not have to bend and lift. … His condition has now been stable for some years.”[64]
[64]Exhibit 8, JCB 95
76 For my own part, I am unable to discern how Mr Brazenor reconciles this ultimate conclusion with his earlier opinion that the two work-related injuries had resulted in a future impairment “in perpetuity”. In any event, it would appear that his fitness for work, as postulated by Mr Brazenor above, is not consistent with the work that he was performing prior to January 2004.
77 Consultant neurosurgeon, Mr David Brownbill, reported to the defendant on two occasions, being 24 May 2005 and 2 November 2006 (exhibit P). On the first occasion, he recorded a history, with respect to the January 2004 injury, as follows:
“He was pulling a hose (15 to 20 metres long) full of liquid from one section to another, by walking sideways or backwards or pulling it on his shoulders, ‘I can’t remember which.’ He then bent over to pull the last segment and he ‘felt a pinch in the lower back.’ He then bent over further to pick it up and there was a very sudden onset of severe low back pain, ‘same as in 1995 and as each recurrence’. There was no leg pain. He stated, ‘he could not get up without help’ and later attended his local doctor. He was off work for two weeks with some improvement in the groin pain and the twisting feeling in the back, but some back pain continued. He returned to his normal job but on this occasion some back pain persisted and he received some help with the lifting of bags but he continued to pull the hoses. Pain then occurred between the buttocks and he later developed right and left leg pain from the buttocks to the back of the thighs and calves and later pins and needles in the soles of both feet over several weeks. He received physiotherapy and later saw a neurosurgeon (Mr Brazenor). Pain continued and fluctuated being often severe. He underwent MRI scanning and then attended return to work programs and he has continued working and now does so full time (two to three days in the same area and the other days sitting down and labelling). He now walks each day several kilometres and swims twice a week. He takes Zoloft but no other medication. ‘The pain is bearable and I am much better.’ …
1 Low back pain: This comes and goes and is present every day, lasting about ten minutes at a time. It has improved a lot.
2 Leg pain: At the back of both legs. This comes and goes each day.
3 Pins and needles: At the back of the thighs and often in the calves and soles of the feet. It is present all the time.”[65]
[65]Exhibit P, JCB 143
78 On examination, he noted the plaintiff “was alert and cooperative, appearing throughout the interview, a little anxious”.
79 Review of an MRI scan lumbar spine scan of 5 July 2004 showed:
“Multiple level of decrease of intervertebral disc signal, at L5-S1, L3-4 and L1-2 with decreased height at L5-S1 and protrusion at L3-4.”[66]
[66]Exhibit P, JCB 144
80 Mr Brownbill commented as follows:
“Radiological investigations have shown multiple level lumbar spine degenerative changes with disc derangement and protrusion.
On the information provided, his described heavy work activities over several years would be regarded as a significant contributing factor to the multilevel lumbar spine degenerative changes.
The two described work incidents of 1995 and 30 January 2004, would be regarded as significant contributing factors to lumbar intervertebral disc derangement.
Ongoing pain may be anticipated to occur in a fluctuating manner indefinitely.”[67]
[67]Exhibit P, JCB 144
81 Mr Brownbill further noted that the plaintiff was:
“… working full time but with restricted lifting and on several days a week he works in a lighter duty area. … He does not have the capacity to undertake his full pre-injury employment … He does have a capacity to continue with his modified employment.”[68]
[68]Exhibit P, JCB 145
82 When reviewed on 1 November 2006, the plaintiff gave a history that he had been:
“… working full time on restricted duties (avoiding bending below the waist, heavy lifting and twisting and the use of a full back brace during working hours). He has been attending his neurosurgeon (Mr Brazenor) and there has been ongoing intermittent low back discomfort ‘which has eased’ and intermittent pins and needles in the legs and the toes.
After a period of extended work hours, he experiences a pulling feeling in the back of the legs from the buttocks to the thighs and the calves.
To direct questioning, he stated the symptoms of back and leg pain and pins and needles had continued but progressively improved since the injury of January 2004, but the back pain never really returned to the level it was before that incidents and the pins and needles and pulling feeling of the legs have been present only since that incident of January 2004.”[69]
[69]Exhibit P, JCB 146
83 His treatment at that stage was –
“… that he walks frequently and swims twice a week and he was taking Panadeine Forte intermittently.”
84 At that stage, Mr Brownbill considered –
“… an incident on 3 October 2006 was a ‘flare up’ of the ongoing lumbar spine degenerative changes which have been aggravated by the work activities from general employment and the two incidents of 1995 and 2004 (as I have discussed previously).
Such intermittent flare ups are to be anticipated to occur in this man.
I do not consider that incident of 3 October 2006 was a new discrete injury but rather it was a continuation of his previous condition, which I discussed in my earlier report. … His condition has not resolved.”[70]
[70]JCB 148
85 Consulting surgeon, Mr Michael Shannon, reported to the defendant on two occasions, being 7 March 2014 and 19 May 2015 (exhibit O). On the first occasion, he was asked to perform a dual purpose impairment assessment with the following instruction:
“I have specifically been asked to assess an injury with the date of injury of 30 January 2004.[71]
Following the subject injury he stated that he complained of pain in the lower back extending to the upper lumbar region and down both legs to the toes. Since that time he said he had about eight flare ups of similar but less severe pain. These came on with various episodes at work and sometimes with simple tasks such as putting on his socks at home. As at March 2014 he was complaining of low back pain extending into the buttocks and the back of both legs as far as his toes. The pain was constant and ‘his only real relief is sleeping’. He was taking very little medication because Panadeine Forte made him sleepy and he felt he was dangerous in a factory situation or when driving.[72]
With respect to the 1995 injury, he stated: ‘That episode settled and he made a virtual full recovery, but over the subsequent years he had some minor strains, but none of these was like what he regards as the really significant injury in 2004. … He used to play golf, but is unable to do so now.[73]”
[71]Exhibit O, JCB 180
[72]JCB 182
[73]JCB 182
86 Mr Shannon’s diagnosis was one of:
“Multilevel lumbar disc degeneration”.
87 Further, Mr Shannon opined:
“On the history that he provided the most significant episode of injury to his back was the incident in 2004 and it would appear that this was the incident that first resulted in hospitalisation, visiting a neurosurgeon and having an MRI scan.
His back never really recovered following this incident and his leg pain has persisted.
I think that it is the most significant contributing factor to his current impairment.”[74]
[74]JCB 184
88 He identified the subject injury as follows:
“I believe that the incident in 2004 was a significant contributing factor to the aggravation of pre-existing and apparently previously symptomatic degenerative change and his back would appear to have been permanently worse since that incident.”[75]
[75]JCB 184
89 It would appear to me that on the basis of the opinions of Mr Shannon and Mr Brownbill, and based on the early opinion of Mr Brazenor, that the injury is as described by Mr Shannon such that there has been a permanent worsening of the plaintiff’s impairment after January 2004 compared to the impairment that existed prior to 2004.
Credit
90 The plaintiff has worked essentially for the same employer from 1994 until 2012 performing at times heavy factory work. He has been subjected to a searching but fair cross-examination and I consider that he presents as a witness of truth who was doing his best to recall events occurring over the past twenty years. I accept that his condition as at today is such that he is permanently unqualified for any work involving bending and lifting and that his present job as a sales representative is the limit of his capacity. I accept that he was playing golf on a regular basis prior to 2004 and that this was his passion. I accept that he played off a handicap of between 8 and 14 and that he is essentially now unable to play golf at all. I accept the restrictions that he has in his everyday life with respect to interacting with his children and his wife and that the change in his clinical position comparing 2015 with 2003 is such that the change is in itself representative of an impairment that is more than significant or marked and can be described as very considerable.
91 I accept the defendant’s submission that there has been an element of anxiety requiring medications being prescribed such as Zoloft and referral to a counsellor to assist the plaintiff cope with his ongoing pain. I also accept the defendant’s submission that a failure to call the counsellor and indeed a failure to call any other lay evidence in support of the plaintiff’s sworn consequences should mean that I can infer that had those witnesses been called, they would not have assisted the plaintiff’s case. If I was to make such an inference, I would then need to look at contradictory evidence, which I could more readily accept.[76] However, the plaintiff was not challenged as to the level, for example, he played golf prior to 2004, and having found him to be essentially a witness of truth, I am prepared to accept the consequences that he swears to and which are referred to above.
[76]Jones v Dunkel (1959) 101 CLR 298
92 The physical injury involves a disc derangement with sciatica which has resulted in permanent pain and restrictions and it is not surprising that there would be a psychological reaction. However, there is no suggestion that the physical consequences, when considered alone, do not result in the limitations on lifestyle referred to above. I do not accept that it is the plaintiff’s nervousness that is preventing him from returning to playing golf, which I accept, in turn, was his passion.
93 Further, it was suggested that the plaintiff had not given complete histories to neurosurgeon, Mr D’Urso, or occupational physician, Dr Brown, or rehabilitation and pain medicine consultant, Dr Clayton Thomas. I do not accept these submissions, because, in the instance of Mr D’Urso and Dr Clayton Thomas, the pre-existing history had been supplied by the solicitors and I consider it then incumbent upon those doctors to elicit the appropriate histories from the plaintiff. It would be otherwise if the plaintiff had denied pre-existing injury as part of the history to either of those doctors. Equally, with Dr Brown, I consider that his brief was to examine the plaintiff’s employment capacity following an alleged injury occurring on 6 October 2011 (exhibit 5).
94 Finally, it would appear the plaintiff is not heavily reliant on medication nor regular attendances at his general practitioner, but I consider, in assessing him overall, that he has been a hardworking person who has remained at work when many a lesser person would have given up. Finally, I am reminded of the dicta of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2)[77] to the following effect:
“…I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”[78]
[77][2008] VSCA 260
[78]at paragraph [3]
95 In all the circumstances, I consider that the plaintiff has discharged his onus of proof, and leave will be granted to issue proceedings at common law for pain and suffering damages on account of an injury occurring in the course of his employment with the defendant on or about 30 January 2004.
96 I will hear the parties as to any subsequent orders.
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