Gosewinckel v Victorian WorkCover Authority
[2024] VCC 204
•15 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-04186
| NOEL GOSEWINCKEL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 January 2024 | |
DATE OF JUDGMENT: | 15 March 2024 | |
CASE MAY BE CITED AS: | Gosewinckel v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 204 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering only – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325
Cases Cited:Humphries and Anor v Poljak (1992) 2 VR 129; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Connelly v Transport Accident Commission [2024] VSCA 20; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Johns v Oaktech Pty Ltd [2020] VSCA 10; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Leave granted to commence a proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S C Bailey with | Slater & Gordon Ltd |
| Ms A Tate | ||
| For the Defendant | Ms K M Manning | TG Legal + Technology |
HIS HONOUR:
Introduction
1The plaintiff, Noel Gosewinckel, was 52 when he injured his low back in the course of his employment with CCMSM Manufacturing Pty Ltd, trading as Crusader Caravans (“Crusader Caravans”), on 29 May 2017.
2Mr Gosewinckel’s duties at Crusader Caravans’ factory in Epping involved performing electrical work on caravans. The incident occurred during installation of a power point inside a cupboard located under a kitchen sink, which required him to reach, twist and push from an awkward position. In the course of performing this task, he felt severe pain in his lower back. Unable to stand upright, an ambulance took him to hospital where he received inpatient treatment.
3Now aged 59 years and employed part time in suitable employment with Essential Caravans, Mr Gosewinckel seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) under paragraph (a) of the relevant definition of “serious injury” for pain and suffering consequences, being for the permanent serious impairment or loss of a body function; in his case, the spine. The application under paragraph (c) was abandoned on the day of the hearing.
4The Victorian WorkCover Authority (“VWA”) formally conceded that Mr Gosewinckel’s credit is not in issue; and nor is it in dispute that:
(a) the plaintiff suffered a compensable injury to his lower back on 29 May 2017;
(b) the injury to the lumbar spine involved aggravation of underlying spondylosis; and
(c) the condition is permanent.
5The extent of any ongoing injury and incapacity remains in dispute; in other words, this is a “range” case.
6For the reasons that follow, I grant Mr Gosewinckel’s application for leave to commence proceedings for damages at common law for pain and suffering.
This proceeding
7Mr Gosewinckel relied upon his affidavits affirmed 25 May 2022 and sworn 27 November 2023; and an affidavit of his partner, Rebecca Jane Palmer, affirmed 27 November 2023.
8Counsel for the VWA, Ms Manning’s cross-examination of the plaintiff was principally directed towards his current capacity for daily activity, including hobbies, with a particular focus on his residual capacity for employment.
9I have considered all the tendered evidence, the plaintiff’s oral evidence and the parties’ submissions.
Legal principles
10The relevant legal principles in applications of this type are well known and not in dispute.
11The plaintiff bears the onus of demonstrating that his impairment is permanent, and that the consequences are serious.
12The seriousness of an impairment is determined by whether the pain and suffering and loss of enjoyment of life consequences, including any pecuniary disadvantage consequence, “when judged by comparison with other cases in the range of possible impairments or losses, [can] be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[1]
[1] Humphries and Anor v Poljak (1992) 2 VR 129 at 140
13In Ellis Management Services Pty Ltd v Taylor,[2] the Court of Appeal stated:
“52.... After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.
…
57.The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.
58.Nevertheless the relevant assessment must be made objectively by the court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.
59.The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors ... .”[3]
[2] [2013] VSCA 326
[3]Citations omitted
14Whilst impairment is concerned with what has been lost, the significance of what has been lost may be informed to an extent by what is retained: Dwyer v Calco Timbers Pty Ltd (No 2).[4] In a very recent statement of this principle, the Court of Appeal, in Connelly v Transport Accident Commission,[5] said:
“While it is important to undertake the analysis performed by the judge of seeing ‘what remains’ so far as the applicant’s incapacity is concerned, that analysis must be seen in the context of what has been, and will be, lost. … .”
[4] [2008] VSCA 260, at paragraph [27]
[5] [2024] VSCA 20, at paragraph [49]
15Maxwell P, in Haden Engineering Pty Ltd v McKinnon,[6] stated:
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.”[7]
[6](2010) 31 VR 1
[7] Ibid at paragraph [15]
16As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi:[8]
[8] [1998] 4 VR 439; affirmed in Johns v Oaktech Pty Ltd [2020] VSCA 10
“… in ‘serious injury’ applications the credit of the applicant is of great importance … .”
17Mr Gosewinckel’s credit is not in issue, and I regard the plaintiff as being an honest and accurate witness. I accept both his oral evidence and what is contained in his affidavits.
Background and medical history
18Mr Gosewinckel completed Year 11. Prior to commencing work in the caravan industry, he worked in various manual-labour type positions, including at Coles, gardening, constructing pergolas and decks, and renovating bathrooms and kitchens.
19His employment at Crusader Caravans involved electrical work, which was required to be signed off by a licensed electrician, on a full-time basis.
20Following his injury on 29 May 2017, Mr Gosewinckel was taken by ambulance to Northern Hospital, where he remained an inpatient for five days. He was then discharged to the care of his usual general practitioner, Dr Sandra Anurathan.
21After a functional capacity evaluation in June 2017, Mr Gosewinckel returned to work on modified duties in or about July 2017, and gradually progressed to full-time hours.[9]
[9] Mr Gosewinckel remains subject to restricted/modified duties at the date of this application.
22After working for around three years on modified duties, Crusader Caravans terminated Mr Gosewinckel’s employment. In December 2020, Crusader Caravans came to the view that it was:
“… very concerned that you are at high risk to return to work, with no suitable job that we can offer you.
We have your best interest at heart, and do not want to bring you back and place you in a job with the risk of causing you further pain and suffering. It is with regret to inform you that we can no longer offer you continued employment with CCMSM Manufacturing Pty Ltd, therefore terminate your employment effective immediately. … .”[10]
(sic)
[10]Letter from the employer, Crusader Caravans, dated 1 December 2020: Further Amended Plaintiff’s Court Book (“PCB”) 116
23In other words, Crusader Caravans was concerned that Mr Gosewinckel’s duties at work as an electrician fitting out caravans were placing him at an unacceptable risk of further injury.
24Mr Gosewinckel obtained similar employment with Essential Caravans, again subject to informal restrictions, in or about August 2021. Mr Gosewinckel did not, at that point in time, disclose his back injury to his employer.
The injury and treatment
25The varying opinions include that Mr Gosewinckel suffers from:
(a) mechanical lower back pain;[11]
(b) persisting symptoms following an aggravation of lumbar spondylosis, without radiculopathy, relevant to his claimed lumbar spine condition;[12]
(c) aggravation of lumbar spondylosis;[13]
(d) aggravation of pre-existing, but asymptomatic, lumbar spine degenerative disease.[14]
[11]Dr Michael Lewis, consultant occupational physician, report dated 25 November 2020 at Defendant’s Court Book (“DCB”) 19; Dr Verrills, pain management treating doctor, report dated 1 June 2021 at PCB 37
[12] Medical Panel Opinion dated 3 November 2021, PCB 41, 44-45
[13] Professor Bittar, 17 May 2022; Dr Drnda, 29 June 2023, DCB 37, 42
[14] Dr Altaf, 8 December 2023, PCB 91, 100
26Surgery is not indicated.
27The VWA accepts the diagnosis of aggravation of underlying spondylosis of the lumbar spine, and that such condition is permanent.
28On 3 June 2017, Mr Gosewinckel presented to his usual general practitioner, Dr Anurathan, who prescribed strong prescription medication to manage his low-back pain, and Diazepam to treat his muscle spasms.
29There are a number of scans in evidence demonstrating disc abnormalities, consistent with disc prolapse. An MRI scan of the lumbar spine on 17 October 2018[15] demonstrated moderate-sized disc protrusion at L4-5, with compression of the exiting L4 roots, with the disc in contact with the L5 roots in the lateral recesses, and an annular disc bulge in proximity to the exiting L5 roots at L5-S1.
[15] PCB 24
30Later MRI scans of the lumbar spine in July 2020 and July 2023 also show multilevel degenerative change, in particular at L3, L4 and L4-5.
31In the context of his ongoing pain, he was referred to pain specialist, Dr Christine Wong, in September 2017.
32From June until December 2017, Mr Gosewinckel was variously prescribed Endone, Targin, Lyrica, Panadeine Forte and Endep, when Dr Anurathan managed the transition from opiates with Proxen SR 750 milligrams and Nexium 40 milligrams daily[16] and prescription Baclofen.
[16] DCB 71
33On 4 October 2017, Mr Gosewinckel attended Dr Anurathan and reported that he had run out of analgesics, and resorted to abusing alcohol.
34In November 2017, Dr Anurathan referred Mr Gosewinckel to neurosurgeon and spinal surgeon, Dr Michael Wong, who, after confirming disc pathology in the lumbar spine with a further MRI scan on 16 November 2017, performed two separate left-sided L3 and L4 nerve root block injections under CT guidance in December 2017. Dr Wong reviewed him again in January 2018 and February 2018.
35On 4 February 2018, Dr Anurathan recorded:
“Had L3/L4 steroid injection in later (sic) December with Mr Michael Wong. Felt ok over his [C]hristmas holidays- says he deliberiately (sic) had a sedentary lifestyle. Reports since commencing work he felt stiff and achy. Recommenced physio. Now reports no major difference- says he starts to feel stiff after lunch - mainly in lower back. Physio now working on hamstrings.
No new Sx.”[17]
[17] DCB 72
36Mr Gosewinckel was prescribed Lyrica, Nexium and Diazepam.[18]
[18] DCB 73
37He consulted another neurosurgeon, Dr Greg Malham, in March 2018, who referred him to pain specialist, Dr Paul Verrills. Dr Verrills recommended L4-5 and L5-S1 medial branch blocks. Mr Gosewinckel did not proceed with this treatment.
38Dr Anurathan prescribed the nonsteroidal anti-inflammatory drug Naproxen from 5 March 2018 to January 2019, which was ceased due to reflux symptoms.[19]
[19] DCB 74, 83
39On 4 October 2018, whilst in the shower, Mr Gosewinckel bent down to clean his legs and his “back went”. He reported the pain as feeling similar to his last flare up, but milder.[20] Dr Anurathan again prescribed Diazepam, Panadeine Forte and Targin.[21]
[20] DCB 78
[21] DCB 79
40He sought a further opinion from Dr René Dupuche, consultant physician who, on 13 November 2018, diagnosed a degenerative back condition caused by inappropriate mechanical stress in the course of his employment, and certified he could not return to work in his pre-injury duties.
41In June 2020, Mr Gosewinckel had a further flare-up after pulling some plastic barbecue chairs. He was recommenced on Diazepam and also prescribed Tramadol.[22] The following month, Panadeine Forte was again prescribed.[23]
[22] DCB 94 and 95
[23] DCB 95
42He was prescribed Meloxiauro and Panadol Osteo for osteoarthritis in 2021; but no more Diazepam, Panadeine Forte[24] and Celebrex[25] until July 2023, when he had another flare-up of low-back pain resulting in two weeks off work.
[24] DCB 126
[25] DCB 129
43His oral evidence concerning his “flare-ups” against a background of constant pain was as follows:
Q:“If you look to the next paragraph, paragraph 4, it talks about your flare‑ups. Do you see there it says ‘when the pain flares up, it can be excruciating’. You take some time off work. In July 2023 you took two weeks off, and you had some medication, and then again in late October you took 10 days off work. Do you see that paragraph?---
A:Yes.
Q:Okay. Is that routine of your flare‑ups and pain, so that you have a flare up, you take some time off, you have some medication, and then gradually you return, your pain returns down to a manageable level?---
A:Yes.
Q:Now, this isn't a memory test, but approximately how many flare‑ups do you reckon you've had of this nature since May 2017?---
A:I think it’s about five.
Q:Five that have required you to take a couple of ‑ a week to 10 days off work, have some prescribed medication, and then things return back to normal, is that what you’re saying?---
A:Yep.
Q:When you don’t have these flare‑ups of pain, when things are just the status quo, you can manage pretty well in your normal everyday life?---
A:To a ‑ it hurts to do some things, but in most ‑ most of the time I can get through.
Q:When you say you can get through, it’s a bit better than getting through, isn’t it; you can go about your daily life pretty normally?---
A:With pain, yeah.
Q:But you can do your every day activities of living?---
A:I can, yeah, with pain, yes.”[26]
[26] Transcript (“T”) 15, Lines (“L”) 25 – T16, L19
44Consultant rheumatologist, Dr Leo Kyi, examined Mr Gosewinckel very recently on behalf of the VWA in December 2023, and evidently accepted the historical and current complaints of low-back pain. Dr Kyi prescribed him a course of Meloxicam for use during flare-ups.[27]
[27] DCB 46
45Mr Gosewinckel has suffered a number of flare-ups where he has experienced very significant aggravation of back pain, in relatively innocuous circumstances including:
(a) bending over in the shower in 2018;
(b) dragging some plastic barbecue chairs in 2020;[28]
(c) putting his shoes on in April 2021[29] – Mr Gosewinckel has used a shoehorn since his injury in 2017, and bent over to adjust the tongue of his shoe;
(d) in July 2023, Mr Gosewinckel had to take two weeks off work due to strong back pain which prevented him from standing upright;[30]
(e) in late October 2023, Mr Gosewinckel again had to take about ten days off work when he was unable to stand properly.[31]
[28] PCB 11
[29] DCB 111
[30] PCB 16
[31] PCB 16
46On 8 December 2023, upon examination by occupational physician, Dr Khayyam Altaf, Mr Gosewinckel provided a history that:
“… recently due to his last flare-up at work, his employer found out about his back issue. He then discussed reducing his hours to three days, which has been agreed and has started this week. When he was doing his five days, he found that he was arriving home in increased discomfort and spent his spare time recovering, lying down stretching and resting.”[32]
[32] Report of Dr Altaf dated 8 December 20223 at PCB 96
47Mr Gosewinckel’s unchallenged evidence is that his current work is much lighter than his pre-injury work at Crusader Caravans, and, despite this, he continues to suffer from constant back pain.[33] As of 27 November 2023, his hours were reduced to three days per week “due to a lack of demand for caravans”.[34]
[33] Affidavit sworn 27 November 2023 at paragraph [12]
[34] Ibid at paragraph [13]
48From the date of his injury, Mr Gosewinckel has required regular treatment from his general practitioners, commencing with Dr Anurathan until her retirement in or about December 2021; and then from Dr Marita Long from November 2022.
49Mr Gosewinckel also received treatment including steroidal injections; a number of surgeons and pain specialist consultations; extensive physiotherapy from shortly after his injury, and treatment in 2021 for approximately six months by osteopath, Mr Darren Ng.
50His back pain has required daily medication to control his symptoms and manage in a domestic and employment context since shortly after his injury. He currently takes two Voltaren or Advil anti-inflammatory over-the-counter tablets in the morning and again at night, and cannabis oil and herbs nightly, noting Dr Nguyen recommends a more frequent dosage. He previously took cannabis butter on a daily basis. He takes strong prescription pain medication when required, including during flare-ups of his low-back pain.
Medical opinions
51In May 2022, Professor Richard Bittar expressed the opinion that Mr Gosewinckel was likely to be seriously restricted in relation to employment or activities involving:
“a.bending, lifting, twisting or stooping
b.pushing, pulling or lifting
c.repetitive pushing, pulling or lifting
d.repetitive and or prolonged use of the back and neck
e.overhead activities
f.kneeling, squatting or crouching
g.prolonged sitting, walking or standing
h.walking up inclines or down declines
i.using steps or ladders.”[35]
[35] Report of Professor Bittar dated 17 May 2022 at PCB 56
52In June 2023, neurosurgeon, Dr Armin Drnda, reported to the WorkCover insurer that Mr Gosewinckel had “pretty good” short-term and long-term prognoses on the basis that:
“… He is very careful about how he’s doing his job and efficiently prevents flare-ups. The last major flare-up was at the beginning of 2021. He is motivated to continue working.”[36]
[36] Report of Dr Drnda dated 29 June 2023 at DCB 42
53Despite Dr Drnda’s and the plaintiff’s enthusiasm for his employment, Mr Gosewinckel suffered serious flare-ups shortly after Dr Drnda’s report in July 2023 and October 2023. Dr Drnda’s prognosis was also on the basis of Mr Gosewinckel working full time, which is:
(a) no longer the case; and
(b) not supported by his treating doctor or other examining specialists.
54Dr Drnda considered that Mr Gosewinckel is not able to resume his recreational activities, and the injury requires him to manage:
“… his activities of daily living by pacing and adjusting himself and involves a lot of various gadgets that help him to perform chores and maintenance work around his house and garden.”[37]
[37] DCB 43
55In occupational physician Dr Altaf’s opinion:
“… [Mr Gosewinckel] was performing a physically demanding occupation without hindrance and the onset of the reported symptoms occurred at the time of this subject injury, being 29 May 2017. He has continued to experience chronic pain and no curative treatment has been available and this is continuing to impair his overall functional capacity on an ongoing basis. He has done well in that he continues to work in largely his pre-injury role, though is requiring assistance from other colleagues in order for him to complete the inherent requirements of his work. …
In my opinion, … [Mr Gosewinckel] is experiencing an aggravation of pre-existing but asymptomatic lumbar spine degenerative disease. This aggravation in my opinion based on the provided information, was substantially contributed to by the subject injury of 29 May 2017. …
In my opinion, it is unlikely that his condition will ever resolve and he will continue to experience chronic pain and impairment for the foreseeable future. …
I would consider … [Mr Gosewinckel’s] condition is currently stable, though he remains at risk of unpredictable significant temporary exacerbations those (sic) these are relatively infrequent. He continues to experience pain which is impacting his ability to undertake his employment activities but he is managing to continue with the majority and working through his chronic pain. …
In my opinion, … [Mr Gosewinckel] has been working beyond his safe capacity and is unfit to perform his unrestricted pre-accident duties or pre-injury hours. It should be noted within his current employment he is requiring assistance from others and is having to work at a slower pace which has recently been identified. I would consider it was sensible for him to reduce his hours to three days per week, although there are likely to be financial implications.”[38]
[38] Report of Dr Altaf dated 8 December 2023 at PCB 100-101
56Dr Altaf also recommended permanent significant restrictions of bending, lifting and other activity, consistent with the opinion of Professor Bittar, and that he is now best suited to sedentary to light occupations only.[39]
[39] PCB 103
57Despite this reduction to three days a week in December 2023, Dr Terry Nguyen reported, in January 2024, that Mr Gosewinckel’s condition was likely to deteriorate in the next twelve months.[40]
[40] PCB 50
58Mr Gosewinckel’s long-term general practitioners are supportive of him and have gone to significant efforts to treat and alleviate Mr Gosewinckel’s mechanical back pain over many years now.
Consequences
59The consequences of Mr Gosewinckel’s injury include:
(a) constant pain in his low back, aggravated by his work, and many routine daily activities including bending over;
(b) he must use a shoehorn to put on his shoes;
(c) he cannot wear a belt due to the increased pressure it causes in his low back;
(d) purchase of a new lighter electric mower and grass clipper so he is able to maintain the garden at his home. Heavier jobs in the garden, such as wheelbarrowing or rubbish removal, are now completed by his partner;
(e) when his back permits, Mr Gosewinckel can vacuum and mop, but his partner does more of the domestic chores than before his injury;[41]
(f) he had to purchase a new car with an automatic transmission after the injury as he had difficulty pushing the clutch while driving his manual car. He no longer drives a manual car.
[41] PCB 50; T42.
60The plaintiff’s recreational activities have been significantly impacted by his injury. Mr Gosewinckel and his partner are no longer able to travel long distances in the car or go camping.
61Prior to the injury, Mr Gosewinckel was a keen hunter who engaged in extended hunting trips up to six times a year.[42] Due to the long drive involved (10 hours) and his inability to carry equipment and game carcasses, he has not returned to this activity since his injury in May 2017.
[42] PCB 13; T43
62During flare ups of his lower back, Mr Gosewinckel uses a walking stick.[43]
[43] T40
63Mr Gosewinckel continues to derive enjoyment from painting, airbrushing and drawing, all of which he enjoyed for several years prior to injury. Although not prevented from this recreational activity, his low-back injury has meant he is no longer able to engage in and enjoy it as much as he would like. He also has to frequently change positions to alleviate his lower back pain.
64His partner of twenty years, Rebecca Palmer, affirmed an affidavit in support of the application. Her evidence included:
“Noel is not as happy-go-lucky anymore, compared to how he used to be before he suffered his back injury. There is no spontaneity. Noel does less around the home and garden, which means that I have to do much more of the domestic chores compared to before his injury. Noel relies on my help a lot, and we have to hire help if the task is too heavy. Noel had to change his car from automatic to manual. We had to buy an electric mower and whipper snipper. We had to buy a different bed for extra back support. We no longer travel long distances or go camping because these activities increase his back pain. Noel’s back symptoms have also affected our intimacy.”[44]
[44] Affidavit of Rebecca Palmer, affirmed 27 November 2023, paragraph [7] at PCB 20
Findings
65The VWA accepts that Mr Gosewinckel suffers from daily pain, but submits that apart from acute flare-ups, he has little to no problem on a day-to-day basis in coping with his activities of daily living; and, until very recently, working full-time.
66While it concedes his injuries are not without a level of significance, the VWA submits that the consequences to Mr Gosewinckel of his injury do not rise to “very significant” in accordance with the narrative test. Ms Manning relied upon the following matters:
(a) Mr Gosewinckel is able to engage in suitable employment, until recently on a full-time basis;
(b) he has retained a high level of function at home, in his recreational activities and at work;
(c) there have been a number of significant gaps in his treatment and an absence of complaints of significant symptoms in the course of his otherwise comprehensive general practitioner attendances over the relevant period since his injury. Despite attending his regular general practitioner for WorkCover certificates of capacity in relation to his modified duties, there is no other history of significant pain or other significant difficulties recorded in the progress notes for long periods of time;
(d) although Mr Gosewinckel has had flare-ups in his symptoms, there have been only four, or perhaps five, flare-ups in the six-and-a-half years since his injury;
(e) his pain, by his own admission, is manageable on a day-to-day basis, it being controlled with over-the-counter medication and the use of cannabis oil and herbs on a daily basis. He only requires prescription medication during the acute flare-ups of pain;
(f) Mr Gosewinckel can still drive and walk for an hour or so without difficulty;
(g) he agreed, under cross-examination, with the history recorded in a Medical Panel opinion, that he has retained 85 per cent employment capacity. This includes ability to lift batteries up to 11 kilograms in weight and regular use of ladders.
67In compendious terms, Ms Manning submitted that:
(a) the notes of his GP reflect the true position, which is of a person coping well without significant interruption in his life;
(b) Mr Gosewinckel still enjoys his hobbies of art and woodwork in the hours after work and on the weekends, which is not indicative of a man who has suffered a serious injury;
(c) his infrequent flare-ups are not sufficient to satisfy the narrative test; and
(d) to the extent the significance of what has been lost might be informed by what is retained, Mr Gosewinckel has retained a great deal.
68In turn, counsel for the plaintiff, Ms Bailey, submitted that:
(a) despite periods of time without regular treatment other than his self-administered exercises at home, over-the-counter medication and his daily self-funded cannabis treatment, Mr Gosewinckel is still suffering significant pain on a daily basis. On the pain scale, he estimated his pain at 3 to 4 out of 10 on a day-to-day basis. He is only able to cope with this pain through the use of daily medication, which he has now taken on an uninterrupted basis since his injury. The only record of his pain being lower than this since his injury was during a period of time when he was not working;[45]
(b) Mr Gosewinckel has also suffered severe flare-ups of his pain on a number of occasions: twice in 2023 alone, which required ten days to two weeks off work and heavy prescription medication to control his symptoms;
(c) while surgery is not indicated, he has sought and received significant treatment over the years from a number of doctors, including neurologist, Dr Michael Wong; Mr Greg Malham, neurosurgeon; a second opinion from pain specialist, Dr Paul Verrills; and, more recently, treatment from specialist general practitioner, Dr Terry Nguyen;
(d) there is no medical evidence that the functional restrictions identified by his treating doctors, Professor Bittar and Dr Altaf, are not permanent; and
(e) Mr Gosewinckel is compromised in his social and recreational activities, in that he is unable to travel and otherwise partake in hunting trips or camping.
[45] DCB 112
69While there is no evidence as to Mr Gosewinckel’s level of pain absent his daily medication, I accept his assessment of constant pain at a level of approximately 3 or 4 out of 10.
70I accept that Mr Gosewinckel suffers from permanent constant pain emanating from his low back, which he manages by restricting activity and daily medication.
71I accept Mr Gosewinckel’s evidence that despite a break in treatment of over ten months in 2022 after his usual GP retired, his symptoms and pain did not resolve. He was also self-medicating with alcohol during this period.
72As was said in Kelso v Tatiara Meat Co Pty Ltd:[46]
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[46] (2007) 17 VR 592
73All of Mr Gosewinckel’s circumstances must be considered. His constant pain, while managed by him with daily medication and modifying his activity, needs to be considered through the lens of the knowledge that he will suffer serious flare-ups from time to time, requiring significant periods of time off work and strong prescription medication.
74Despite his demonstrated willingness and enthusiasm to return to work on a full-time basis, the current medical evidence is that he is unable to do so, which is an indicator of the seriousness of his low back condition.
75I was invited to find that although Mr Gosewinckel’s pain was constant, and very significant during flare ups, I should, in accordance with the principles stated in Haden Engineering Pty Ltd v McKinnon,[47] reject his application upon consideration of what he had lost in terms of what he had retained.[48] While the significance of what Mr Gosewinckel has lost, in terms of the seriousness of consequence, might be informed by what is retained in the pursuit of his work as an electrician, and his domestic and social activities, I must also consider the extent to which he is a stoic individual.[49] I consider Mr Gosewinckel as somewhat stoic, putting up with the pain and getting on with his life. I do not hold this against him.[50]
[47]Supra
[48]See also Dwyer v Calco Timbers Pty Ltd (supra) per Ashley J
[49]See for example Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraph [83]
[50] Dwyer v Calco Timbers Pty Ltd (No 2) (supra) per Nettle JA at paragraph [3]
76When considered in combination, the consequences to Mr Gosewinckel of daily constant pain with flare-ups;[51] significant treatment over time, including over fifty physiotherapy consultations[52] and osteopathy; the necessity for daily medication to control his pain, with strong prescription medication during flare-ups, are more than very considerable.
[51] Such as documented in April 2021: Melbourne Medical and Dental Clinic records, DCB 111
[52] DCB 22
77While perhaps not so significant in and of itself, Mr Gosewinckel’s evidence that he is no longer able to wear a belt and must wear overalls to avoid aggravating the pain in his lumbar spine[53] is an indicator of the nature of his baseline condition.
[53] Affidavit of Mr Gosewinckel, paragraph [8] at PCB 17
78The recommendations for pain management over time of Professor Bittar in 2022,[54] Dr Drnda[55] in June 2023, and, more recently, Dr Nguyen in January 2024,[56] and consultations with two pain specialists are also indicative of the extent of his ongoing pain and restrictions. To my mind this evidence informs the assessment of the Court of the extent of pain that Mr Gosewinckel endures as part of the status quo, albeit moderated by daily over-the-counter medication and strong prescription pain medication when required.
[54] PCB 79
[55] DCB 42
[56] PCB 49
79Mr Gosewinckel’s account of the extent of severe pain suffered during flare-ups was not challenged.
80While the claim is in relation to pain and suffering only, that does not mean I may not consider the extent to which Mr Gosewinckel has been precluded from engaging in work activities he previously enjoyed.[57] I find that his work is compromised: he is restricted to part-time suitable employment which is productive of pain. His inability to perform his pre-injury work itself is indicative of serious injury.
[57] Ellis Management Services Pty Ltd v Taylor (supra) at paragraphs [35], [39], [43], [44] and [51]
81Mr Gosewinckel is 59. His education is limited to Year 11, and his skills and work experience support my finding that, against a background of general labouring and construction, he has predominantly worked in the field of caravan manufacturing, with the sub-specialty of electrical work, for most of his recent employment years. I accept his evidence that he feels vulnerable and frustrated by the restrictions his back injury have placed on his employment.
82The evidence conclusively establishes that he is permanently incapacitated for his pre-injury employment.[58] The prospect of Mr Gosewinckel returning to full-time employment, despite his enthusiasm, must be approached with caution. He is working in a semi-protected position, with a supportive employer, and his options on the open market must be limited, having regard to the evidence as to the functional limitations, as expressed by Professor Bittar and Dr Altaf. This, too, supports a finding of serious injury.
[58]See, for example, Professor Bittar at PCB 56; Dr Altaf at PCB 101 and the Medical Panel on 3 November 2021 at PCB 45
83The combination of multiple specialist consultations, ongoing pain, the need for daily medication, interference with work, interference with domestic and recreational activity, and the requirement for ongoing conservative treatment, is such that the pain and suffering consequences to Mr Gosewinckel of his injury are “at least very considerable”.
84Upon careful consideration of all of the evidence, despite being finely balanced, I find that the plaintiff has discharged the burden of proof.
Conclusion
85Leave is granted to the plaintiff to commence proceedings for pain and suffering damages as a result of the injuries suffered in the course of his employment on 29 May 2017.
86I will hear the parties as to final orders including costs.
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