Georgievski v LHT Services Pty Ltd
[2009] VCC 55
•18 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-00969
| BORIS GEORGIEVSKI | Plaintiff |
| v | |
| LHT SERVICES PTY LTD & ANOR | Defendant |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 February 2009 |
| DATE OF SENTENCE: | 18 February 2009 |
| CASE MAY BE CITED AS: | Georgievski v LHT Services Pty Ltd and Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0055 |
REASONS FOR JUDGEMENT
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Catchwords: Accident Compensation – s.134AB of the Accident Compensation Act 1985 – low back injury – application for leave to commence proceedings for pain and suffering only – application refused
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B.W. Collis QC and | Arnold Thomas & Becker |
| Mr J.P. Brett | ||
| For the Defendant | Mr J.P. Gorton | Dibbs Abbott Stillman |
| HER HONOUR: |
1 On 15 May 2001 Boris Georgievski alleges that he suffered low back injury in the course of his employment as a truck driver with LHT Services Pty Ltd (LHT).
2 He now seeks leave to commence proceedings for damages for personal injuries pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (the Act) in respect of the claimed injury.
3 Mr Georgievski claims whilst cleaning a prime mover at LHT’s depot he slipped and fell injuring his right knee and low back. The right knee condition gradually resolved and no claim is made with respect to the knee.
4 Mr Collis, QC, on behalf of Mr Georgievski, identified the injury as an injury to the lumbar spine, namely, aggravation of disc degeneration and bulging at the L4-5 and L5-S1. He submitted that it is a serious injury within the meaning of s.134AB(37) part (a) of the definition of “serious injury”. The relevant body function in which there has been impairment or loss is the low back. The plaintiff’s application is restricted to pain and suffering consequences only.
5 Mr Gorton, on behalf of the defendants, primary submission was that the Court ought not be satisfied that Mr Georgievski suffered the claimed injury having regard to the affidavit of Mr Thorpe and a statement of Peter Norman.
6 His alternate submission was that if the Court is satisfied that Mr Georgievski injured himself in compensable circumstances in the manner alleged then the defendant does not dispute that Mr Georgievski has a low back condition that is permanent in the relevant sense and no issue would be taken in relation to causation. The sole issue for determination would be whether the plaintiff has discharged the onus of proof. His ultimate submission was that the plaintiff has not discharged the onus of proof and the claimed impairment to the low back does not meet the definition of “serious injury”.
7 Mr Georgievski gave viva voce evidence and was cross-examined. He adopted his affidavit sworn 28 May 2007 as being true subject to a number of amendments. He appeared to be a fit and well looking man. He gave his evidence seated over a period of 1 hour and 25 minutes without any obvious postural difficulties or discomfort.
8 Both parties tendered medical reports and radiological investigations, including X-rays, CT scans and MRIs, in accordance with the exhibit list that is attached to this judgment. No medical witnesses were called.
9 Mr Georgievski was born on the 7 May 1955 and is aged 53 years. He was born in Macedonia and came to Australia aged 10 years. He completed his schooling and qualified as a motor mechanic. His work experience has been primarily working as a truck driver. He has expertise in driving B-doubles and B-triple vehicles. He is currently in full time employment operating his own business as a transport consultant. In December 2007 he purchased a truck that carts concrete pipes. His evidence was that he has an employee who mainly drives the truck and on occasion he drives as well.[1]
[1] T8,L9-15
10 There were some unusual features to this case. The plaintiff’s evidence was not reliable in some important respects. The plaintiff did not submit a claim for compensation until 10 September 2001 some four months after the fall.[2] In his evidence, Mr Georgievski stated that he completed the form a week to 10 days after the initial injury. [3] He conceded when shown a copy of the claim form that it was completed in about 10 September 2001.[4]
[2] Exhibit 2.
[3] T20, L22-23
[4] T21,L1-2
11 His evidence was that he saw Dr Sheriff, his treating general practitioner, once or twice a week following injury.[5] Whereas an admission was made through his counsel that there were only 2 attendances with Dr Sheriff on 16 May 2001 and 10 August 2001.
[5] T17, L1-2; T17 L11-13
12 Mr Georgievski’s affidavit sets out the mechanism of injury, the details of his management and treatment and work history post 15 May 2001. Mr Georgievski states that he was not able to work following injury until February 2002.[6]
[6] paragraph 7, Plaintiff’s affidavit PCB 15
13 In evidence Mr Georgievski conceded that he did some work for his nephew’s business, Austroads Pty Ltd, managing his truck yard for a short while some time prior to September 2001.[7]
[7] T21,L7-24
14 He further referred to working at Railway Transport as a driver from March 2006 to November 2006. In fact he worked until April 2007.[8] He commenced his own business in November 2006 at the same time that he was working full-time with Railway Transport.
[8] T40,L28-31;T41,L1
15 Mr Georgievski also admitted in cross-examination that he worked for Nascatrans driving B-triples, that is a B-double with an extra trailer, from Melbourne to Perth for 4 months during the 2007 tax year[9]. That detail was omitted from his affidavit and his evidence in chief. It is a relevant and serious omission which I find to have been deliberately withheld rather than a mere oversight. It is significant as such long distance driving would involve certain physical demands. It also demonstrates, contrary to what is set out in the plaintiff’s affidavit and his sworn evidence that he is capable of working as an interstate driver and that he can sit for long periods.[10]
[9] T46,L14, 15-20
[10] paragraph 13, Plaintiff’s affidavit PCB 16A, T35,L1-3
16 Overall I did not find Mr Georgievski to be a reliable witness.
17 The material relied upon by the defendant is at odds with Mr Georgievski’s version of the circumstances of the injury. Mr Thorpe, a director of LHT, swore an affidavit on 28 February 2009 adopting a statement that he made to an investigator on 4 October 2001. He does not dispute that Mr Georgievski reported a problem with his back at work on 15 May 2001 but states that he told him he hurt himself when he went to enter the cab of the truck and he pulled his back out and that it was an “old war injury”. A former employee of LHT, Mr P Norman also made a statement confirming he was present when Mr Georgievski complained to Mr Thorpe in the terms as described by Mr Thorpe. Those witnesses were not called.
18 Mr Georgievski disputes this version and says that he told Mr Thorpe that he fell off the back of the truck.[11] He says that he may have said “I feel like I have been in the wars”.[12]
19 I note that Dr Sheriff, a local general practitioner, saw Mr Georgievski on 16 May 2001. The history he records is that Mr Georgievski felt rather acute low back pain whilst washing a truck and he fell twisting his right knee.[13]
[11] T15, L16-17 [12] T15, L23-25 [13] Dr A Sheriff report 7/1/2002 PCB 24
20 Dr Sheriff records following examination of the spine that there was spasm of the paraspinous muscles with localised tenderness of the lumbar vertebral spine with the muscle spasm extended proximally into the thoracic area. There was deep tenderness in the right gluteal region in the sciatic groove. The pain radiated into the right thigh and right popliteal fossa and right leg. His right knee jerk and right ankle was exaggerated. He also exhibited dissociated sensory disturbances in the distribution of the L4/L5/S1 segment. The straight leg raising test was restricted to 50 degrees.
21 There is no evidence that Mr Georgievski suffered any pre-existing back injury or impairment to the back. He commenced with LHT on 9 October 2000 and prior to 15 May 2001 was able to undertake his truck driving duties driving interstate and locally without any limitations or restrictions.
22 I am satisfied that Dr Sheriff’s clinical findings are consistent with the version of the injury as described by Mr Georgievski.
23 Notwithstanding my concerns about the reliability of aspects of the plaintiff’s evidence I am satisfied having regard to the totality of the evidence that the plaintiff has discharged the onus of proof in respect to the claimed injury to his lumbar spine following the incident at work on 15 May 2001.
24 I find that the plaintiff suffered compensable injury, namely, an aggravation of asymptomatic pre-existing lumbar degenerative disease and musculo ligamentous strain as a consequence of the injury at work on 15 May 2001.
25 Having made that finding I am required to consider whether the consequences of the low back injury are serious within the meaning of the Act.
26 The following is a brief review of the plaintiff’s history and medical treatment for his low back condition.
27 Dr Sheriff managed the plaintiff’s back injury conservatively. He prescribed Valium and Celebrex and provided a certificate advising complete rest from 16 May 2001 to 20 May 2001.
28 Dr Sheriff reviewed Mr Georgievski again on 10 August 2001. When he re- presented Dr Sheriff recorded that he further aggravated his spinal and right- knee pain. He told the doctor that whilst at home he suddenly felt the right knee giving way and he twisted again and fell. A CT scan of the lumbar spine was then ordered.
29 Dr Bruce Jones, radiologist, in his report of the CT of the lumbar spine dated 15 August 2001, notes that there is mild posterior disc bulging at L4–5 contributing to mild narrowing of the spinal canal in combination with ligamenta flava hypertrophy. The thecal sac is clear elsewhere as are the nerve roots.
30 Dr Sheriff concluded that it is likely that the plaintiff sustained an injury to the lumbar spine and clinically he exhibited some neurological L4–L5/L5–S1 root signs and suggested that he may need an MRI scan to delineate the lesion further.
31 Mr Georgievski did not resume his employment with LHT. At some time prior to September 2001 he worked for his nephew’s business Ausroads Pty Ltd managing a transport yard.
32 Following the initial injury at work there are documented flare ups of back pain. There was the flare up in August 2001 referred to in paragraph [28] when the plaintiff experienced pain whilst he was at home, another following the resumption of work with S J & JJ Webster Pty Ltd (Webster’s) in 2002 and after an incident whilst in the employ of Lindsay Brothers Pty Ltd (Lindsay Brothers) in 2004. On the latter occasion the primary injury was to the shoulders but the low back condition also featured. At all times the medical management has been conservative.
33 Mr Georgievski was referred to Mr Khan, orthopaedic surgeon for review. Mr Khan initially examined him on 19 October 2001. He noted the history that he fell from the back of a prime mover in May 2001 following which he sustained injury to his right knee and back.
34 Mr Khan diagnosed flare up of mild pre-existing disc degeneration in the lower part of the lumbar spine and musculoskeletal and ligamentous strain to the lower part of the back. He considered such to be consistent with the after- effects of the injury which occurred during the course of employment in May 2001. He considered the prognosis to be guarded and the condition had not stabilised.[14]
[14] Mr Khan, report 1/12/2001 PCB 19
35 Mr Georgievski did not represent to Mr Khan until July 2002 following an aggravation of the low back condition whilst working with Webster’s. The plaintiff had commenced working full-time as an interstate transport driver on 21 February 2002 driving B-doubles.
36 In his affidavit the plaintiff says he had to stop work on 19 June 2002 and was off work until October 2002. He attributed the aggravation of his back injury to his work, the long hours of driving and climbing in and out of the cabin of the truck. In his report dated 6 October 2002 Mr Khan notes that following his return to work as a truck driver, both locally and interstate, the back problem flared up and aggravated his back pain.
37 When he examined Mr Georgievski on 3 July 2002 he complained of pain in the lower part of the back, pain in both buttocks, the right being worse than the left, and pain in the right buttock intermittently going down the back of the right thigh and down the back of the right calf to the heel. He walked without a limp. He complained of considerable stiffness in the back.
38 Mr Khan confirmed as a consequence of the work undertaken with Webster’s that Mr Georgievski had aggravated his back condition. He advocated conservative treatment with intensive back-strengthening and rehabilitation programs. He certified him unfit to perform any work requiring excessive bending, turning and twisting of the spine, or lifting heavy weights.
39 The next attendance recorded for the low back condition was with Dr A.K. Freund of the Berwick Springs Medical Practice. Dr Freund first saw Mr Georgievski on 21 June 2004. Mr Georgievski was then working for Lindsay Brothers where he drove B-doubles and road trains.
40 The history recorded by Dr Freund is that whilst unloading a very heavy pallet on 20 June 2004 Mr Georgievski injured his right and left shoulders and the low back was sore. Analgesics were prescribed. An ultrasound of both shoulders revealed a full-thickness tear of the left supraspinatus tendon. Mr David Booth, orthopaedic surgeon, operated on 26 August 2004, and a diagnosis of left-shoulder rotator-cuff tear was made. Subsequently Mr Georgievski had physiotherapy in respect of his shoulder condition.
41 The next attendance with Dr Freund in respect of back pain is on 15 March 2005. On that occasion Mr Georgievski attended with a complaint of severe lower back pain and had to be helped out of the surgery by a friend. No incident is identified as to the trigger of this flare up. He was complaining of numbness of the right foot, and posterior portion of the right leg pain.
42 Dr Freund referred Mr Georgievski to Mr A. Razif, orthopaedic surgeon, in view of his condition. Mr Razif performed a steroid lumbar epidural injection under CT guidance on 11 April 2005 following which the mobility of the low back was much improved and the right leg pain resolved.
43 Up until 11 April 2006 Mr Georgievski continued to see Dr Freund regularly. He was wearing a back brace and attended Cedar Court rehabilitation program. Gradual improvement in movement was noted. On 11 April 2006 Dr Freund notes that he was at a level of being able to return to work on a trial basis.
44 In his report dated 6 February 2007 Dr Freund notes that Mr Georgievski had a nasty injury to the left shoulder, including a full-thickness tear of the left supraspinatus tendon, and a severe lower back injury confirmed by MRI and CT scan. He records that he made very slow but gradual improvement in his level of functioning and concluded that Mr Georgievski should be capable of returning to work full time.
45 Dr Freund expressed the opinion that Mr Georgievski would experience pain from time to time in the back, hastening osteoarthritis of his L4–5/S1 spine, with a need for analgesic anti-inflammatory medication and with physiotherapy in the future on a fairly regular basis.
46 Mr Razif confirms in his report of 19 April 2007 that on 22 March 2005 when he examined him the lumbosacral spine revealed normal lordosis without any tilting. There was tenderness to palpitation of the lower lumbar spine at L4–5 and L5/S1 levels. The range of movement revealed a marked restriction in flexion due to pain and slightly in extension. CT scan revealed L4/5/6 disc protrusion.
47 On review at 25 May 2005 Mr Georgievski claimed that his backache had flared up one week previously and he had recurring right-leg pain. Examination revealed normal gait, with the lower back showing an increasing restriction in flexion at 50% and significantly in extension. He referred him for intensive physiotherapy. He did not attend for review four weeks later as arranged, but presented again on 21 July 2005, and on that occasion examination revealed some improvement in the low-back movement with only a 20% restriction in flexion movement and minimally in extension. The lower limbs showed no signs of any nerve-root compression present.
48 He was subsequently reviewed by Mr Razif on 11 August 2005 and at that time again his back condition had flared up. Clinical examination revealed some increase in restriction of flexion of movement and no sign of any nerve- root compression to the lower limbs.
49 Mr Razif recommended an MRI. It was performed on 2 September 2005 and that revealed mild right paracentral disc protrusion of L4/5 disc with slight bulging at L5/S1. He noted clinically there were no signs of any nerve-root compression of the low back. He prescribed a lumbar brace and advised Mr Georgievski to continue with physiotherapy. Mr Razif last reviewed Mr Georgievski on 2 September 2005.
50 Mr Razif states in his report that
“One would expect, considering the clinical findings and the MRI report, that the back condition should have settled enough for Mr Georgievski to be able to cope with modified activities. However due to the nature of his lower back pathology he should avoid any activities that would tend to stress or lever his low back, as he is likely to develop recurrent symptoms. ”[15]
[15] Mr Razif Report 19 April 2007 PCB 39
51 He stated that going back to driving a truck may not be advisable for him in the future, as prolonged sitting, as well as stress to his upper body in driving a heavy vehicle, would likely result in an exacerbation of his lower back.
52 Mr Georgievski did return to work in a full time capacity as a truck driver. He was employed by Railway Transport driving a B-double tip truck from the 30 March 2006 to 26 April 2007. During that time he also commenced his own transport consulting business in November 2006. He admitted working with Nascatrans driving B-triples that is, a B-double with an additional trailer between Melbourne and Perth for 4 months during 2007.
53 Mr Georgievski admits he gave up the Nascatrans job to concentrate on his business.[16] He considered that that position was manageable, and the back condition did not prevent him from undertaking that work.
[16] T47, L 6-7
54 There has been a series of medico-legal examinations conducted on the plaintiff.
55 Mr Klug, neurosurgeon, reviewed Mr Georgievski on 12 November 2008 at the request of his solicitors. In his report dated 4 December 2008 he notes that the plaintiff complains of persistent symptoms of low-back pain following the incident at work in May 2001.
56 He recorded that Mr Georgievski was running his business full time. He had purchased two trucks and was employing drivers. He undertook office-type duties. He noted that there was no active management of his condition and that Mr Georgievski took medication on an intermittent basis and the drugs taken include Brufen, Digesic, and Valium.
57 In his sworn evidence, the plaintiff stated that he has desisted from taking such medication because of its effects, and that now he limits medication to taking two Nurofen a couple of times a week.
58 Mr Klug’s examination revealed moderate restriction of movement of the lumbar spine, approximately 50% of that expected in a person of his age and physique. He reviewed the CTs of the lumbar spine performed 15 August 2001 and 24 February 2005, and confirmed that they show similar findings: that is, some mild posterior disc bulges at L4/5 resulting in a mild narrowing of the spinal canal in combination with the ligamentum flavum hypertrophy.
59 He further examined the MRI of the lumbar spine performed 2 September 2005, and that revealed disc bulges at L4/5 and L5/S1 levels with changes being maximal at L4/5 where they were predominantly right-sided. He did not believe there was any evidence of any definite neural compression. He also noted the films related to the epidural injection undertaken on 11 April 2005.
60 He examined the CT scan of the thoracic and lumbar spine performed on 20 March 2006, and those findings in the lumbar spine appear to be similar to the preceding study. There were some mild degenerative changes at multiple levels, and also some degenerative changes in the thoracic spine, but no clear evidence of neural compression.
61 Mr Klug’s opinion was that Mr Georgievski did suffer an injury to the low back in May 2001 and that he does have a disc disorder of the low back. He confirms that various imaging studies in the lumbar region of the spine show some evidence of a derangement at L4/5 and to a lesser extent L5/S1 level. He believes that as a result of such he suffers from some low-back pain and has radiation and pain into the lower limbs without, however, any evidence of any neurological involvement to suggest he is suffering from a radiculopathy or cauda equina syndrome.
62 He considers that his back condition would make it difficult for him to undertake certain types of employment placing undue strain on the low back. Any employment involving the need to bend, twist, and lift significant weights on a repetitive basis would most likely aggravate his condition.
63 He considers he could undertake office-type work such as he is currently performing in a full-time way. He considers it is unlikely that the condition will materially alter with the passage of time, and that his symptoms will wax and wane. To some extent he acknowledges that persistent symptoms will interfere with his ability to undertake activities of daily living in a normal manner. His enjoyment of such activities could be lessened.
64 Mr Georgievski was reviewed on a number of occasions on behalf of the defendant by Mr Peter Battlay, surgeon. He saw him on 8 October 2001, 24 June 2002, and 21 December 2007.
65 Overall, Mr Battlay considers that the injury suffered on May 2001 was significant, and that there may have been some pre-existing but asymptomatic degenerative changes at L4/5 level and subsequent degenerative changes at L5/S1 level. Although these would have been age-related, he remains of the view that there was no pre-existing impairment of the back that would be able to be assessed. He says there is likely permanent impairment from the May 2001 injury and that there have been aggravations since that time.
66 When first examined on 8 October 2001 he noted that his symptoms and clinical findings were of an unresolved soft-tissue strain without structural damage to the back. He considered the symptoms were physically based but not disabling. He characterised his injury as a lumbar soft-tissue strain, and considered that employment may have been a significant contributing factor, and that there was some physical incapacity for work, but he would be capable of driving a truck.
67 On 24 June 2002 he was working with Webster’s and had been transporting bulk cement from Melbourne to Adelaide, and that involved him using a chute to load the cement and no other physical tasks other than driving. He complained of backache becoming worse, and was intolerant of sitting, and had not been able to work for a week. He had been off work and had lodged a claim with Webster’s.
68 Mr Battlay noted complaints of continuous pain at L5 spreading to the right buttock and also affecting the left buttock. On examination at that time he noted Mr Georgievski appeared to be in severe pain, was groaning a great deal, and walking with a right concave scoliosis of the lumbar spine. He demonstrated physical reflex muscle spasm in the back, and restricted extension to 10 degrees flexion to 30 degrees, although lateral flexion was not so painful and could be performed to 20 degrees bilaterally. Straight leg raising was restricted to 30 degrees bilaterally. There was no objective neurological loss. His back flexion did not improve on the couch, with 40 degrees being the maximum.
69 At that time he considered he had clinical findings of a mainly right-sided lower lumbar disc protrusion, and he thought it may well have been caused by the previous job, although there were some unusual factors and it would have been accelerated or exacerbated by more recent employment with Webster’s. He recommended an MRI.
70 On 21 December 2007 Mr Battlay noted that his back was giving him some bother. He noted he had had the epidural injection which had helped for a while. He had had a lot of physiotherapy and a rehabilitation program at Cedar Court towards the end of 2005 at which time he stopped physiotherapy altogether. He was at that time taking Brufen and Digesic tablets for the pain, and only Valium occasionally when he felt a spasm in the back.
71 On examination, flexion of the back was performed to 70 degrees with normal spinal rhythm, with little evidence of right-sided sciatic nerve-root irritation. There was no objective neurological loss in the lower limbs.
72 Mr Battlay reviewed the CT scans of the lumbar spine and the report of the CT-guided epidural injection of April 2005 which stated that the injection of anaesthetic removed completely his unusual right lower limb pain. He concluded that his low back and right sided leg pain had resulted from derangement of the L4/5 disc which quite consistently occurred in the manner described, although Mr Georgievski was able to resume heavy physical labour associated with long-distance truck driving. He said he had fair function in the back and no complicating features such as radiculopathy.
73 He considered his condition stable and no other treatment was indicated. He noted that Mr Georgievski described difficulty with both standing and sitting, and difficulty walking. He was restricted in performing household chores and maintenance activities. He considered it inadvisable for him to perform heavy manual labour, but moderate truck driving would be reasonable, which he was then doing. Within the manual-handling capacity he would be capable of his pre-injury type employment, but he should avoid heavy manual labour, which he is not contemplating doing anyway.
74 Mr Michael Troy, surgeon, undertook an assessment on 10 July 2002, and noted at that time he was driving trucks locally and interstate to Adelaide weekly, and around the country. He noted the aggravation of the back whilst working with Webster’s and the treatment received from Mr Khan. On his examination there was no spasm, and no localised identified pain in the lower lumbar spine, whether it was over a traverse process, anterior process, or a facet joint. He thought he had soft-tissue pain symptoms related to the lower lumbar spine and that was related to work. He did not think he had any major symptoms that would prevent him from working as a truck driver where there was no manual lifting and it all could be done by forklift on and forklift off.
75 Mr Neil Cullen, orthopaedic surgeon, reviewed Mr Georgievski once on 8 May 2003. Mr Georgievski stated that the symptoms were progressively improving, such that when he did return to work he described the back as being only a niggling pain and intermittent. He noted that he had a flare-up whilst working for Webster’s and that he returned to work with Webster’s after an interval and worked as a driver/trainer and continued that work without restrictions. He noted for the past six months his back was pretty good, with only the occasional niggle.
76 On clinical examination there was an excellent range of movement in the lumbosacral spine. Straight leg raising was unrestricted, and the peripheral neurology was normal.
77 Mr Cullen formed the opinion that Mr Georgievski suffered an acute back strain as a result of the fall at work in May 2001 and that a further episode of acute back pain and sciatica occurred in May 2002 whilst in the employ of Webster’s, following which he had three months off work, which responded to very conservative treatment.
78 He considered that that was a recurrence of the previous injury and not a new injury, and that it had resolved with other minor symptoms reported on an intermittent basis, and no discernible disability or impairment on physical examination. He thought the long-term prognosis was reasonable, but accepted the likelihood of recurrence or further injury occurring. He did not think any further treatment was required, and he considered he had a capacity for his pre-injury employment and that he could work as a driver without restriction but not without some risk of re-injury.
79 Mr Robin Williams, orthopaedic surgeon, undertook a medico-legal examination on 15 October 2003, at which time Mr Georgievski told him that his symptoms were not as severe as they used to be, but that he still had a lot of discomfort in the lower part of the back, and these symptoms were often worse when he was getting in and out of bed. At that time he had returned to work and was spending approximately 80% of his time instructing drivers. Mr Georgievski felt he could not perform normal truck driving because he could not climb in and out of the cabin without suffering lower back pain. He had not played golf for two years, and had not yet returned to any fishing, but he indicated he probably would start soon. He was capable of doing his own housework and preparing his meals.
80 Mr Williams found on physical examination the range of movement was approximately two-thirds of that which he would expect to be normal. There was no muscle spasm. Mr Georgievski seemed to suffer discomfort but no acute pain.
81 He reviewed the MRI examination performed on 15 August 2001 and the radiologist’s report and agreed with that report. He regarded the bulging of the L4/5 disc as a naturally-occurring phenomenon, and probably not related to the injury sustained in May 2001.
82 Mr Williams concluded he had persisting lower back pain which he estimated to be of a mild degree, although it did interfere with daily activities. This is related to the injury sustained when he fell in May 2001 and he considers the injury probably caused some local contusion and musculo-ligamentous strain. He considered the back stabilised and did not consider any further treatment indicated.
83 Mr Ian Jones, orthopaedic surgeon, reviewed Mr Georgievski on 12 December 2008, at which time he was working with Lindsay Brothers, truck driving on a full-time basis and also forklift driving. Mr Georgievski reported intermittent pain in the low back, and that he experienced stiffness, particularly in the morning, with associated symptoms and restricted bending. The symptoms improved with activity as the day progressed. Standing in particular aggravated the back, and he was limited to standing in one place for about four minutes. Mr Georgievski stated that walking was less of a problem, and he could manage to walk his dog between one to two kilometres. He occasionally experienced pins and needles in the insteps of both his left and right feet. This was most noticeable when sitting watching TV.
84 His findings on examination were that flexion was to 40 degrees with extension limited to 10 degrees. Pain was indicated to extend to the left buttock more so than the right buttock and neurological examination was normal.
85 Mr Jones reviewed the CT scans, X-rays and MRI scans. He confirmed that they revealed changes consistent with generalised spondylosis affecting a number of levels in the thoracic spine. He considered that Mr Georgievski suffered from degenerative disc disease at two levels, especially at L4-5. His prognosis was that in the lower back he will continue to experience varying degrees of lumbar back pain and stiffness, with a slow deterioration in the long-term. He considered it was possible that the work injury as described by Mr Georgievski aggravated some pre-existing degenerative disc disease and was a cause of a minor proportion of his current symptoms and signs.
86 He noted that Mr Georgievski has had a variety of conservative treatment, including medication and injections and physical therapy. He considers that further conservative treatment is indicated in the form of intermittent analgesics and anti-inflammatory agents depending on his symptom levels. He accepted that the back condition would impact on any activities requiring repeated bending or heavy lifting. He considers the injury to be permanent, and that the injury described on 15 May 2001 still contributes to his condition, although he describes it as only marginally contributing to it. He noted that he is currently working as an instructor in the transport industry and he also owns a truck and is a driver but does not engage in any regular driving activities.
87 Mr Jones reviewed his history and clinical findings and provided a supplementary report of 14 January 2009, which states:
“In the absence of any previous history of any back injury or symptoms, and in spite of the MRI scan changes of 2 September 2005 confirming degenerative changes in L4/5 and L5/S1 discs, this man’s back complaints appear to date from the incident of May 2001. The appearance of a central disc bulge at L5 suggests his current problem with back pain relates to his initial work injury.”
88 Mr David Booth’s reports were provided, but they relate solely to the plaintiff’s shoulder condition. He noted that following surgery to his left shoulder that his condition had stabilised and the prognosis was excellent and following decompression of the left shoulder his left-shoulder functioning should improve.
89 The general consensus of the medical opinion is that the plaintiff has genuine disc pathology at L4/5 and L5/S1 levels with associated musculo ligamentous strain. Further there does not appear to be any real dispute that Mr Georgievski that his low back injury is related to the incident at work on May 2001. The injury following the incident at work on 15 May 2001 the plaintiff suffered is an aggravation of pre-existing asymptomatic degenerative disc disease at L4/5 and L5/S1 levels with associated musculo ligamentous strain. The real issue for determination is whether the consequences of the injury satisfy the requirements of serious injury.
90 I am satisfied that since the incident at work on 15 May 2001 Mr Georgievski has suffered from episodes of acute back pain that have settled with conservative management. He currently has no active medical management. He will continue to experience varying degrees of lumbar back pain and stiffness with a slow deterioration in the long term. He remains at risk of recurrence or further injury occurring. He has no objective neurological loss in the lower limbs. His condition is permanent. His condition does not prevent him from truck driving provided he avoids heavy manual lifting.
91 In cross-examination, Mr Georgievski made a number of significant concessions.
92 He agreed that following his return to work with various employers he did not disclose to any prospective employer that he had a low back problem. He said that he was never asked.[17] He agreed when he applied for the job at Webster’s that his back had improved to a level where he felt comfortable driving full time[18]. He conceded that he left Webster’s because of a major fallout with Stephen Webster that had nothing to do with his back.[19] He conceded that the reason why he stopped working for both Railway Transport and Nascatrans was not attributable to his low back condition or associated restrictions but rather because he wanted to focus on his own business.[20] He confirmed that he is not restricted in his ability to run his own business because of his back. [21]
[17] Webster’s T22,L31; T23,L23; Lindsay Brothers T30,L25-27; Railway Transport T38, L1-3
[18] T23,L8-9[19] T30, L17-18[20] T43,L9-11; T47,L6-7[21] T43,L9-1193 Mr Georgievski lives with his girlfriend. When asked he could not identify any restrictions on his activities of daily living. No affidavit material was filed from his girlfriend identifying any problems he experiences due to his low back problem.
94 Mr Georgievski agreed that he is able to drive a 4-wheel drive without any difficulties and he can bend down to pick something up or bend down to look underneath something without any difficulty. [22]
[22] T45,L20-2495 When pressed to state what restrictions his back condition currently causes he paused and after some time said “yes, golf”.[23] He did however eventually concede that it was the combination of both his shoulder and back problems that prevent him from playing golf. He also ventured that he would like to spend more time on his boat.[24] His evidence was that his girlfriend owns a 38 foot Mustang Sports Cruiser with twin engines. He drives it out in the bay every 4-6 weeks in calm weather only. He has resumed fishing.
[23] T45,L25-27[24] T46,L4-796 In so far as treatment is concerned Mr Georgievski was last reviewed by Dr Freund in April 2006 and there have been no other attendances or treatment for the low back since that time. Mr Georgievski manages his problem by self medicating using Nurofen. He takes a couple of Nurofen to settle himself down in the morning 3 times per week perhaps.[25] He said his back plays up every now and then, not on a daily basis.
[25] T10,L5-9
Conclusions
97 I find that the plaintiff suffered compensable injury, namely, aggravation of pre-existing asymptomatic degenerative disc disease at L4/5 and L5/S1 levels with associated musculo ligamentous strain as a consequence of the injury at work on 15 May 2001.
98 I am satisfied that the injury has resulted in permanent impairment to the lumbar spine.
99 The extent and the nature of the consequences of the injury are the key issues in this application.
100 He has a back condition that limits his ability to perform heavy work that would stress the low back. He remains vulnerable to re-injury.
101 Since April 2006 Mr Georgievski has not sought out any active medical treatment. He is currently able to manage whatever level of discomfort he experiences in his low back using the occasional Nurofen.
102 His lifestyle is curbed to the extent that he would like to go out more in his girlfriend’s boat than he currently does and he is unable to play golf. He has demonstrated that he is physically able to undertake suitable employment which may involve certain physical demands. He demonstrated through the work undertaken in 2006 and 2007 that he has coped well working full time driving long haul vehicles interstate. He copes well operating his business working full time notwithstanding that involves driving to client’s depots and getting in and out of cabins instructing drivers.
103 From Mr Georgievski’s evidence I am unable to isolate by way of day to day activities any other consequences of his injury.
104 I am unable to make a finding that he experiences significant pain or is otherwise significantly suffering physically from the consequences of his injury.
105 In conclusion, I am not satisfied that the consequences of the low back injury are such that they may be fairly described as being “more than significant” or “marked”, and as being “at least very considerable” being the test set forth in paragraph (b) of s134AB(38) of the Act.
106 I am not satisfied that the plaintiff has suffered an impairment or loss of body function of the lumbar spine which has resulted in pain and suffering consequence which is, when judged by comparison with other cases in the range of possible impairment or loss of body function, fairly described as being more than significant or marked and as being at least very considerable being the test set forth in paragraph (c) of s134AB(38) of the Act.
107 The plaintiff has not discharged his onus to show that the injury he suffers and its consequences satisfies the description of "serious injury" and accordingly, leave to bring a common law proceeding is not granted.
108 I therefore dismiss the plaintiff's application.
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