Goss v The RV Repair Centre Pty Ltd
[2014] VCC 2127
•15 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-03612
| MARTIN GOSS | Plaintiff |
| v | |
| THE RV REPAIR CENTRE PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2014 | |
DATE OF JUDGMENT: | 15 December 2014 | |
CASE MAY BE CITED AS: | Goss v The RV Repair Centre Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2127 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering only – whether consequences to the plaintiff are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; Dordev v Cowan & Ors [2006] VSCA 254; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; Richards v Wylie (2000) 1 VR 79
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
--
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Alessi Legal Pty Ltd |
| For the Defendants | Mr D Myers | Minter Ellison |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 31 January 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brought this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. The body function relied on was injury to the lumbar spine.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Petkovski v Galletti.[2]
[1](2005) 14 VR 622
[2] [1994] 1 VR 436
10 The plaintiff relied upon two affidavits and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
11 The plaintiff is presently aged fifty-seven. He grew up in the United Kingdom and came to Australia in 1972 when aged fourteen. He left school the following year.
12 The plaintiff commenced an apprenticeship as a cabinetmaker, but then worked with his father as a concrete finisher. He was employed later as an apprentice spray painter, a counter hand/salesman at Austral Hardware and then worked at power stations in Gippsland as a trades assistant for five years.
13 The plaintiff worked at Swan Plumbing for fifteen years, working his way up to manager, working in the office in later years. However, he wanted a more active job so he went to work for Oasis Caravans, where his job involved servicing, repairing and selling caravans. He worked there for a couple of years and then worked for a competitor, Canterbury Caravans, all up, working five years in that field.
14 Another competitor, the first defendant, offered the plaintiff a job with better conditions. He started this job on 21 February 2005 in sales, service and repair of caravans. He worked full time, earning on average $845 gross a week.
Pre injury
15 In 2000, the plaintiff developed low back pain whilst working at Canterbury Caravans. He was told he had a protruding disc. He did not make a WorkCover claim and did not have much time off work. He took some tablets, and after a while, his back improved.
16 In 2006, the plaintiff fell from a ladder at work. His doctor arranged a CT scan of his lower back. He recovered from that injury after a while and was able to keep working.
17 Pre 2007, the plaintiff’s back pain did not impact on his capacity to work and undertake normal domestic activities at all. He was in pain but he still was able to go back and complete his normal jobs. The pain thereafter had been totally different. The plaintiff is in constant pain, whereas before, he had niggling pains occasionally from the type of work he was doing but it never stopped him working. After 2007, he just could not work.[3]
[3]Transcript (“T”) 18
18 In cross-examination, the plaintiff ultimately conceded he knew he saw Mr O’Brien for the purposes of his case. He thought he gave Mr O’Brien a fair history of his back problems prior to 2007 and he appreciated the need to give him a full history.[4]
[4]T20
19 The plaintiff agreed that he had laser treatment for his back in 2006. He would have had lower back problems going back to 1994.[5] He had been attending the same clinic all the time. He could remember having a CT scan in 1996 and taking Nurofen at that time.[6]
[5]T26
[6]T27
20 The plaintiff agreed he had been on a pension at various times. He was taking Panadeine Forte in 1999. He could recall being referred to a specialist in 2000 for his back. He had a CT scan and physiotherapy and, in February of that year, was taking six Panadeine Forte a day.[7]
[7]T28
21 The plaintiff had a couple of days off here and there while working at Canterbury and Oasis but he could not recall having any great period of time off work.[8]
[8]T29
22 The plaintiff agreed he made a claim on a disablement policy in 1999 for psychiatric problems and had a few weeks off work at that stage.
23 In 2000, the plaintiff had problems with sleep and he discussed sleep apnoea with his doctor in 2002. He had a car accident in 2002 when he fell asleep driving.[9]
[9]T30
24 The plaintiff agreed he had previously had problems with dizziness bending over, as noted by his doctor in October 2002. He had also been advised about drinking too much caffeine.[10]
[10]T31
25 The plaintiff agreed that as of 2006, he had had leg pain for years. The pain was in both legs but most recently, more in his left.[11] Leg pain did not affect him working prior to 2007. Before then, his leg pain was 3 or 4 out of 10 and about 5 to 6 thereafter, sometimes more.[12] His pain increased with prolonged postures, increasing at times to 10 out of 10.[13]
[11]T32
[12]T45
[13]T46
The incident
26 On the said date, the plaintiff was manoeuvring a caravan to fit it to the back of a customer’s car. As he bent over to connect the chain, he felt a sharp and intense pain in his lower back (“the incident”).[14]
[14]T23
27 The plaintiff was taken by ambulance to Maroondah Hospital. A CT scan taken showed a crush fracture in his lower back. He was put on OxyContin and discharged the next day. He was then in excruciating pain.
28 The plaintiff attended his local doctor, Dr Sticklen, on 5 February 2007 because of ongoing pain. He was re-admitted to Maroondah Hospital, where he remained for about six days. A bone scan then showed he had osteoporosis. He was taken off OxyContin and given Fosamax for his spine, and was also prescribed Panadeine Forte.
29 The plaintiff was referred to Dr Lovell, a musculoskeletal specialist, whom he saw in March 2007. Dr Lovell advised there was nothing surgically that could be done and recommended a course of physiotherapy, hydrotherapy and continuing painkilling medication.
30 After three months, the plaintiff’s pain settled to the point where he felt he could try some light work. The plaintiff needed a walking stick at that time. He was doing paperwork and he talked to customers in the yard. He was working three days a week, four hours a day.
31 The first defendant was not very understanding and treated the plaintiff poorly. The plaintiff heard his workmates sniggering and talking behind his back in the office. He resigned because he could not cope.
32 In August 2007, the plaintiff was working one day a week as a console operator at a service station in Launching Place. He had been open about it. He was not one hundred per cent sure, but he probably worked there for twelve months to supplement his pension.[15] If he said he had not worked since 2007, he meant not full time. He did not think it was relevant.[16]
[15]T33
[16]T34
33 When working at the service station, the plaintiff did not sit all the time. He sat and stood at the console. His back used to hurt doing that work and he ceased that job because his back pain got too bad.[17]
[17]T46
34 The plaintiff could not work with caravans now because his pain would not allow him to; he could not stand or sit for long.[18]
[18]T19
35 In May 2008, the plaintiff experienced a particularly bad flare-up. He attended his local doctor, who arranged a CT scan, and he was put on a stronger painkilling medication, Tramal. The flare up occurred when he bent over to do something on the back veranda.
36 The plaintiff did not know whether investigations were organised after the 2008 flare up because it was thought he had had another crush facture.[19] He was not told of any further damage; he had just been told his back was getting worse in general.[20] He understood the investigations were undertaken to check the progress of his back.[21]
[19]T24
[20]T25
[21]T40
37 Following the flare up in 2008, the plaintiff’s back returned to its post-incident condition.[22] For a brief time after the flare up, he was prescribed Endone.
[22]T47
38 The plaintiff was not sure about a similar flare up in 2010. He agreed he might have told Mr O’Brien about bending and severe low back pain at that time.
39 In April 2012, the plaintiff attended Dr Sticklen, who arranged another CT scan.
40 The plaintiff is not sure of the current situation with the discs in his back.T25
41 As of March 2013, when the plaintiff swore his first affidavit, he was using Norspan patches and also taking paracetamol for pain and Valium to relax his muscles. He had not sought specialist treatment, as he had been told nothing could be done for him.
42 Since the incident, the plaintiff has been unstable on his feet. In February 2013, he fell over and broke his jaw when his leg gave way.[23] He was taken to hospital, where he gave a history of tripping on his thongs.[24] All he knew was he lost his balance and he fell down and hit his head on the concrete. His leg just gave way and “it went bang”. He had not had problems with his leg giving way before then.[25]
[23]T40
[24]T41
[25]T47
43 The plaintiff relocated to Queensland in mid-2014 and now lives about 40 kilometres from Kingaroy on a 5-acre property. He and his wife moved for a fresh start and also warm weather. His wife also has a back injury.
44 The plaintiff has a ride-on mower. The lawn is the size of the Courtroom. There is not a great area to mow and the wallabies keep the grass down. The vegetable patch is about 20 feet by 20 feet.[26]
[26]T46
45 The plaintiff still tries to do what he can around the house and property. Occasionally, he gets out and does something in the garden or uses the ride-on mower. Often those sorts of activities cause the onset of severe pain.
46 The plaintiff had some physiotherapy before the move and since then, has done home‑based exercises shown to him by his physiotherapist. He also now attends Dr Morgan, general practitioner, whom he has seen three times since June. Dr Morgan is currently setting up a treatment plan with Centrelink to arrange five physiotherapy visits.
47 When the plaintiff comes back to Melbourne on occasions, he visits Dr Sticklen.
48 The plaintiff continues to take prescription medication for his back. He takes 150 milligrams of Lyrica on a daily basis and also Tramadol. Occasionally, he uses Valium and also Panadol Osteo. Even with painkillers, he continues to have back pain and pain down his left buttock and leg. Without painkillers, he would be in real trouble.
49 The plaintiff agreed he had only claimed about $90 in medication and explained it was because he could not be bothered making a claim.[27]
[27]T31
50 The plaintiff is not presently taking any medication for his sleep but used to before injury. He does not know why he ceased taking that medication.[28]
[28]T42
51 The plaintiff does some exercises, morning and night, but does not do sit ups because he is in too much pain after his stretching and bending.[29]
[29]T42
52 The plaintiff’s back and leg symptoms fluctuate. At times, he has severe pain and he needs to lie down. He now has a recliner chair so that when he has a bad patch with his pain, he can lie down and watch television.
53 The plaintiff’s two main hobbies before the incident were fishing and restoring cars. He has been unable to fully engage in those hobbies since injuring his back.
54 The plaintiff described a range of consequences in his two affidavits.
55 The plaintiff has real difficulty walking more than 30 or 40 metres before needing a break. He has difficulty sitting comfortably in one position for more than 10 minutes, and when sitting for too long, he finds it difficult to stand up.
56 Driving more than 30 minutes causes real discomfort and pain. As a result, the plaintiff tries to avoid driving and takes public transport so he can stand up and change his position. Standing for more than 15 minutes in one spot causes pain.
57 Prior to the incident, the plaintiff used to enjoy working on and restoring old cars. He stopped this activity because of his back pain.
58 The plaintiff also used to go ten-pin bowling, but his back injury prevented him from doing so now. He went ten-pin bowling for a couple of months when working at Canterbury Caravans in 2003 to 2004. He stopped bowling when he left that job.[30]
[30]T39
59 Before the incident, the plaintiff went fishing regularly. Since then, he has been fishing a few times but his involvement is now limited. Once every so often, a friend drives him to a local pier where they sit for a while with a line in the water. However, the plaintiff cannot sit for too long, and moving his arms above his head to cast the rod causes too much pain.[31]
[31]T47
60 The plaintiff has never owned a boat. He could not remember when he last fished in a lake. Before 2007, he used to do a lot of trout fishing, probably once a week, but he stopped fishing to any great deal in about 2006.[32]
[32]T38
61 The plaintiff is currently in receipt of a Carer’s Allowance to look after his wife. He has been her Carer since 1999 when she hurt her back. He helps her at home. His role is limited to taking her to the doctor, a short trip by car, and getting groceries. He makes lots of little trips, carrying only small weights at a time. He does as much as he can for her. He does some of the housework. His wife makes the beds. She says she is getting better.[33]
[33]T45
62 The plaintiff is better off receiving a Carer’s Allowance because there is a supplement of $118 that is not included in a Disability Support Pension.[34]
[34]T43
63 The plaintiff’s adult old son still lives at home. He does the manual activities and domestic chores around the house, and helps out in the garden. He does a lot of the heavier cooking and cleaning. The plaintiff and his wife are dependent on him for assistance with tasks around the house.
64 Sleeping is difficult for the plaintiff and pain wakes him at night. He often sleeps for only about two to three hours at a time. When he wakes up, he finds he has to get up and walk around for about half-an-hour or so before he can get back to bed. He will then sleep for another two or three hours and repeat the process. As a result, he is tired all the time and rarely gets a good night’s sleep.
65 Intimacy with his wife has been affected. Because of lower back pain, the plaintiff no longer has the desire to be intimate with her. As a result of his pain and limitations, the plaintiff has been depressed and required counselling from his doctor.
66 The plaintiff uses a walking stick for balance and sometimes relies on his wife when he is with her.[35]
[35]T19
Investigations
67 A bone scan on 20 February 2007 showed density in the left femoral neck in the osteopenic range. Density in the lumbar spine was markedly reduced lying in the osteoporotic range.
68 There was a CT scan of the lumbar spine on 9 May 2006. It was reported there was mild degenerative changes with disc space narrowing, and osteophytes were demonstrated at L3-4, L4-5 and L5-S1. No vertebral body fractures were seen. There was mild irregularity of the right L2 transverse process, and a fracture there could not be entirely excluded on those images. The remaining transverse processes and lower ribs appeared intact and the sacroiliac joints and visualised portions of the sacrum were normal.
69 Following a CT scan of the lumbar spine on 1 February 2007, it was reported there was mild posterior L4-5 disc bulge. There was evidence of a crush fracture of the L4 vertebral body with likely Schmorl’s node formation in the superior endplate. There was minor degenerative change in the lower lumbar spine.
70 There was the CT scan of the plaintiff’s lumbar spine organised by Dr Tiong on 13 May 2008. The clinical notes detailed “sudden onset acute back pain on bending four days ago. ? fracture, past history of disc prolapse and a crush#2007”.
71 It was noted no degenerative L5-S1 disc was seen. There was loss of the normal central concavity at the L4-5 and L5-S1 discs, in keeping with mild broad-based disc protrusions at those levels. These were causing very little displacement of the main thecal sac and exiting nerve roots at those levels.
72 The bony architecture of the vertebral bodies demonstrated quite marked depression of the upper table of L4, which was not appreciated on the plain x‑rays and the possibility of this being post-traumatic in origin, the age of which is a little difficult to ascertain, would be a consideration.
73 The vertebral endplate irregularity and osteophytic lipping at the levels of L3-4, L4-5 and L5-S1 were again noted. The facet joints at L4-5 and L5-S1 showed some degenerative change. There were mild broad-based disc protrusions at the levels of L4-5 and L5-S1 which were causing no displacement of the thecal sac or exiting nerve roots.
74 There was a CT scan of the plaintiff’s lumbar spine in April 2012. It was reported there were degenerative changes which would likely account for back pain. The sacroiliac joints were not ankylosed. A cause for the plaintiff’s left radiculopathy was not seen.
75 There was a CT scan of the lumbar spine on 14 February 2014. It was reported there was a small focal left paracentral L4-5 disc protrusion demonstrated which probably compressed the descending left L5 nerve root. There was moderate narrowing of the left L4-5 neural exit foramen with possible contact of the exiting left L4 nerve root. There were stable appearances of L5-S1 degenerative changes.
Treaters
76 The plaintiff was admitted to Maroondah Hospital on 31 January 2007 for back pain and discharged the following day. He was again admitted on 6 February 2007 and discharged on 12 February 2007. A past history of L4-5 disc prolapse was noted.
77 The hospital notes set out an attendance on 31 January 2007, when the plaintiff was manually pushing a caravan and had a sudden onset of severe lumbar back pain.
78 Dr Lam was the treating doctor when the plaintiff was at Maroondah Hospital. He asked that he review the plaintiff before he recommenced work and any activities.
79 The plaintiff’s general practitioner, Dr Sticklen, reported in July 2012.
80 Following the incident, the plaintiff saw Dr Sticklen on 5 February 2007. Painkillers were inadequate and he was re-admitted to Maroondah Hospital for six days of strong analgesics.
81 Dr Sticklen noted, at that time, a past history of back injury in 2000 was documented with a diagnosis of an L4-5 disc prolapse. It was not known if that happened at work.
82 On subsequent questioning, the plaintiff could not remember how that accident happened. He had, however, been working full time with no significant back pain prior to 31 January 2007.
83 On examination in March 2007, there was marked spinal restriction and local tenderness. A bone scan in February 2007 showed osteoporosis, and Fosamax treatment was indicated. OxyContin, initiated in hospital, was ceased due to side effects. Other medication was used for only a few weeks because it also caused dizziness, constipation and severe headaches.
84 The plaintiff preferred to use paracetamol and occasional Panadeine and Diazepam to control his pain. Initially, in 2007, he had physiotherapy and hydrotherapy and an exercise program, until funding ceased. Hydrotherapy was the most beneficial modality.
85 At the end of three months, the pain had reduced, so a limited return to work on modified duties was attempted. Dr Sticklen certified, in May 2007, that the plaintiff was fit for an administrative role for four hours a day, two days a week, with no lifting, twisting or bending.
86 However, the plaintiff was unable to manage any return to work then, or subsequently, due to ongoing pain.
87 As of July 2012, the plaintiff’s current symptoms were severe, constant, central lower lumbar spine pain, radiating down the left leg to the foot and occasionally down the right leg to the knee. The plaintiff’s left knee locked up and was painful, which he attributed to his back problem.
88 No significant problem was demonstrated on investigations.
89 Dr Sticklen noted the plaintiff sometimes felt nauseous with pain and had to rest in bed for two or three hours. He wore a back brace every day and sometimes overnight. He had difficulty bending and had pain on twisting. He did not lift more than 4 kilograms at any time to avoid exacerbation.
90 The plaintiff could not work because he could not walk more than 300 metres. He could not sit for more than 10 minutes, drive more than 30 minutes or stand for more than 15 minutes. He had to be in bed by 8.00pm to 9.30pm each evening. He could manage simple activities of daily living, but could not do house or yard work. It was difficult for him to get in and out of the car, and he had to give up his previous hobby of restoring old cars. He could not do fishing, bowling or a gym program now. His wife was also an invalid due to her back injury, so they had help with house and yard work.
91 As of 2012, Dr Sticklen thought the current pattern would continue and further hydrotherapy and gentle exercise would help alleviate symptoms.
92 Dr Lovell, musculoskeletal physician, saw the plaintiff on referral from Dr Sticklen in March 2007.
93 Dr Lovell noted, following the incident and after a period in hospital, the plaintiff had been managing at home, changing medication from OxyContin to Panadeine Forte and Ducene.
94 The plaintiff complained of a constant, dull ache, better with rest and aggravated by activity. On average, his pain was 4 to 5 out of 10. Dr Lovell noted the plaintiff certainly felt he had improved quite markedly over the last few weeks compared to his initial pattern. He noted the question arose as to when the plaintiff might be ready to return to work on a modified part-time basis.
95 On examination, there was quite marked restriction of flexion and extension and there was local tenderness over the lumbar lower area.
96 Dr Lovell noted the CT scan showed a slight loss of spinal body height at L4 with a compression of the superior endplate. The bone density confirmed the plaintiff’s osteoporotic degree of change in the lumbar spine, with some lesser changes in the femoral neck. He therefore had a form of pathological fracture actually, with the underlying problem being unsuspected osteoporosis.
97 In the short term, Dr Lovell thought the plaintiff needed to start mobilising more and continue with analgesics. He then thought it premature to return to work, even on a part-time basis. He also suggested hydrotherapy and perhaps starting part-time modified duties in two weeks.
98 Dr Lovell thought the outlook was very positive in the longer term, but the plaintiff could expect to have aches and pains for anything up to a year after having an effect like this.
Medico-legal evidence
99 Mr John O’Brien, orthopaedic surgeon, first saw the plaintiff in February 2013.
100 In terms of past history, the plaintiff told him that in about 2002, he experienced a sudden episode of severe low back pain without any referred leg pain. He was seen at Maroondah Hospital, where he was considered to be suffering from L4-5 disc problem. He was subsequently treated with medication and physiotherapy and he reported the pain resolved in a matter of two or three weeks, after which he returned to full activity without any back pain until the more recent described event in 2007.
101 On examination, there was restricted lumbar movement and tenderness. Passive straight leg raising was to 70 degrees bilaterally. Neurologically, the plaintiff was normal.
102 Mr O’Brien had available the lumbar CT scans of February 2007, 13 May 2008 and 4 April 2012 and an x ray of May 2008.
103 The plaintiff reported constant back pain with some bilateral leg pain. Mr O’Brien thought there was no clinical evidence of nerve root compression or radiculopathy. He noted the more recent investigations certainly did not suggest any progression of osseous pathology; however, they confirmed the presence of multilevel spondylosis.
104 Mr O’Brien thought the plaintiff now had non-specific back pain which could be regarded as chronic. He had little doubt the original bony injury had healed and the most likely pathology underlying pain generation was that of symptomatic lumbar spondylosis consistent with the stated cause.
105 Mr O’Brien then thought the condition was stable, and conservative management with medication was appropriate in the long term. He considered the prognosis was poor, as the plaintiff now had well established chronic back pain. In his view, the plaintiff was substantially restricted in his level of physical activity and would be quite incapable of a return to his pre-injury work which involved moderate physical activity.
106 Mr O’Brien thought the plaintiff would not be capable of undertaking any form of suitable employment and he could now be regarded as totally and permanently incapacitated. He had little doubt on a permanent basis the plaintiff was significantly restricted in relation to his general social, domestic and recreational activities and that would be permanent.
107 On re-examination in August 2014, the plaintiff indicated he had continued to experience constant back and leg pain, particularly extending into the left leg which had not improved.
108 Mr O’Brien noted physical signs at the time of the initial examination were subjective, thus he concluded the plaintiff presented with chronic non-specific back pain, most likely related to symptomatic lumbar spondylosis, there being, at the time, no evidence of any nerve root compromise or radiculopathy.
109 The plaintiff told Mr O’Brien that his complaints had continued since the first examination and that his constant low back pain radiating into his left leg seemed to affect his balance and occasionally his leg went out, citing the example in February 2013, when he fell and broke his jaw.
110 Lyrica had been substituted for Norspan patches, and the plaintiff also took eight Panadol Osteo and six Nurofen Plus a day, and Panadeine Forte probably twice a week.
111 On examination, there was some restriction of lumbar movement with complaints of significant pain. Straight leg raising was bilaterally 50 degrees. Neurologically the plaintiff was normal.
112 Mr O’Brien had available the February 2014 CT scan of the lumbar spine.
113 Mr O’Brien noted physical signs in relation to the lumbar spine remained subjective. There was currently limited movement but no signs to suggest the presence of nerve root compromise or radiculopathy. He noted recent investigations certainly confirmed degenerative change and in fact these were reported as demonstrating moderate left disc protrusion at L4-5; however, that was certainly not accompanied by any physical signs indicative of nerve root compromise.
114 Mr O’Brien again concluded the plaintiff presented with chronic non-specific back and leg pain, the most likely pathology underlying this pain was symptomatic lumbar spondylosis. He thought the history continued to indicate that employment remained a significant contributing factor to the plaintiff’s chronic back and leg pain. The clinical condition remained stable and treatment continued to be conservative and involved pain management with appropriate analgesic.
115 Noting the plaintiff’s failed attempt to return to work, Mr O’Brien considered that, physically, he now would be incapable of undertaking his pre-injury duties or any form of employment requiring physical activity. He suggested the plaintiff would not be capable of even suitable employment and would thus conclude he is totally and permanently incapacitated. He saw no likelihood of the plaintiff returning to any form of gainful employment and he considered the plaintiff had remained limited in his general social, domestic and recreational activities on a permanent basis.
116 Dr Horsley, occupational physician, examined the plaintiff in October 2014.
117 In terms of past history, the plaintiff told her he had sustained an injury to his lumbar spine in 2000 when working at Canterbury Caravans. He had no time off work and was prescribed analgesics and returned to full duties.
118 In 2006, when the plaintiff was employed by the first defendant, he fell from a ladder one to one-and-a-half metres. He attended Maroondah Hospital, where x-rays confirmed there was no fracture. He was provided with analgesics and sent home. He was given a certificate for three to four days off work but in fact returned to work. He had a CT scan of the lumbar spine and recovered well and returned to full duties within a few days.
119 Dr Horsley noted that following the incident, the plaintiff returned to work in a primarily administrative role but there were interaction issues with the first defendant because of issues around the plaintiff’s worker’s compensation claim and he resigned in December 2007. At that stage, he was working four hours a day, two to three days a week. Dr Horsley noted the acute flare-up in May 2008.
120 On examination, the plaintiff presented with ongoing back pain, chronic in nature, which he rated on the visual analogue scale from 4 to 10 out of 10, with 6 out of 10 on that examination.
121 There was no spasm or deformity on examination of the lumbar spine. Straight leg raising on the left was 60 degrees and 80 degrees on the right.
122 Dr Horsley had a range of investigations available, including the CT scan of 14 February 2014. She diagnosed an injury to the lumbar spine with a crush fracture of the superior aspect of L4 associated with L4-5 disc pathology. She noted a past history of back injury in 2000 with correspondence from the local doctor stating at that time, the plaintiff was diagnosed with an L4-5 disc prolapse and treated conservatively.
123 Dr Horsley noted the plaintiff presented with mechanical back pain and referred left leg pain. Clinically, he had a positive straight leg raise and positive slump test on the left-hand side suggestive of discal pathology without any radicular features. He was deconditioned.
124 Given the time since the injury, and the ongoing nature of the symptoms, Dr Horsley thought they were likely to persist. She thought the plaintiff would benefit from participation in a functional restoration program.
125 Dr Horsley considered the prognosis for return to work was poor given the plaintiff’s age, seven years out of the workforce and relocation to a small rural community in Queensland.
126 Dr Horsley noted potentially in 2007, work in a more administrative managerial role with variation in posture may well have been possible. As the level of deconditioning had increased and the plaintiff’s time out of the workforce had lengthened, his opportunities for redeployment had significantly declined and she considered him now realistically totally and permanently disabled, and believed he would remain out of the workforce into the longer term. His opportunities for redeployment were negligible.
127 Dr Horsley believed the events at work and the clinical presentation were consistent. She thought work had been a significant contributing factor on a background of pre-existing lumbar spondylosis. She noted the plaintiff also had pre-existing osteoporosis which contributed to the occurrence of the crush fracture of the superior end of L4 at the time of injury.
128 Dr Horsley noted the 2014 CT scan revealed a vertebral compression fracture that had now resolved but also confirmed a moderate left-sided L4-5 paracentral disc protrusion which was consistent with the clinical presentation of a positive straight leg raise and positive slump test, although there were no radicular signs on assessment.
129 Dr Horsley thought the following restrictions should apply: avoidance of the following- repetitive overreaching, repetitive pushing and pulling, truncal rotation, lifting items greater than 8 to 10 kilograms except on an occasional basis, lifting items up to 5 to 8 kilograms on a repetitive basis and working in awkward and confined spaces. She suggested the adoption of good manual handling techniques, even when lifting light items.
130 Dr Horsley thought the plaintiff’s functional tolerances were poor, with a walking tolerance of ten to fifteen minutes, static standing of ten minutes, dynamic standing tolerance on a good day of thirty minutes, driving tolerance in an automatic vehicle of thirty minutes, sitting tolerance with an upright posture of ten to fifteen minutes, and in the plaintiff’s home recliner of sixty minutes.
131 Dr Horsley thought the plaintiff would not be an attractive candidate in an open and competitive marketplace and believed realistically, he had come to the end of his working life. She would have to consider him totally and permanently disabled.
The Defendants’ medico-legal evidence
132 Dr David Barton, consultant occupational physician, examined the plaintiff in March 2007.
133 The plaintiff told him about six or seven years earlier, he developed some lower back pain and was sent for a CT scan. He was told there were two protruding discs in the lower lumbar region, although the cause of this was not apparent. He believed he might have had a few days off work at the time.
134 Specific examination of the back showed moderate tenderness, markedly limited forward flexion and extension and other reduced back movements with complaints of pain. Bilateral leg raising was to 20 degrees. Neurological examination was normal.
135 Dr Barton then thought, from a physical point of view, the plaintiff would have had sufficient time to have made enough of a recovery to return to suitable employment. He noted, of some concern during the assessment were several features that did not fit with a straightforward physical problem, and raised the possibility of a functional component to the plaintiff’s complaints.
136 Dr Barton thought presumably the incident contributed to the crushed L4 fracture. He did not believe there were any pre-existing problems, and he did not believe the condition had resolved. He considered the plaintiff then had a capacity for light duties. In April 2007, he thought a recent offer of employment was suitable.
137 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff in January 2013 for the purposes of an AMA assessment.
138 Mr Jones thought the plaintiff remained troubled by discogenic low back pain.
139 Clinical evaluation suggested some overstatement of the pain levels and self-restriction when back movement and leg raising were assessed. There was no neurological abnormality. The 2012 CT scan localised the problems in the L4 disc. He thought the impairment appeared to be stable.
140 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in March 2014.
141 Mr Dooley was given a detailed letter of instruction, setting out a complaint by the plaintiff of pain over his coccyx in September 1999 and being prescribed Voltaren and Panadeine Forte. On 5 May 2001, he was noted to be using Valium occasionally for back pain. On 28 September and 22 October 2001, he saw his doctor regarding back pain and was prescribed Vioxx.
142 On 6 July 2004, the plaintiff consulted Dr Sticklen complaining of lower neck ache and limited range of movement after pulling a caravan by hand and was subsequently prescribed Indomethacin. On 19 July 2005, lower back pain was noted and the plaintiff was prescribed Orudis.
143 There plaintiff presented at Maroondah Hospital on 9 May 2006 after a fall from a ladder. A CT scan at that time revealed mild degenerative changes with disc space narrowing and osteophytes at L3‑4, L4‑5 and L5‑S1 with mild irregularity and possible fracture at the L2 level.
144 Mr Dooley was also provided with the CT scans of February 2014, April 2012 and 1 February 2007, and imaging of the lumbar spine of 9 May 2006.
145 On examination, there was tenderness of the left low lumbar region. There was some restriction of lumbar movement, and that caused pain. Bilateral straight leg raising was to 30 degrees.
146 Mr Dooley noted the plaintiff had multi-level naturally occurring degenerative disc disease of the lumbar spine. It was also evident that in 2007 he had osteoporosis.
147 Mr Dooley noted the plaintiff described episodes of short-lasting low back pain in 2000 and 2006, and a fall from a ladder in 2006.
148 The plaintiff described experiencing acute low back pain bending over during work on the said date.
149 Mr Dooley thought the exact nature of the plaintiff’s injury initially was unclear. It may have involved a wedge or crush-type fracture of the superior aspect of the L4 vertebra. In his view, clearly, bending over was an unusual mechanism by which one would sustain a crush fracture of the lumbar vertebra.
150 Mr Dooley noted when an acute vertebral crush fracture occurred, it was very painful. Often there was radiating pain around the abdomen or chest, depending on the level of the fracture, and pain was significant for the first few weeks, and then a steady recovery occurred. Following recovery, patients would note some ongoing intermittent pain.
151 Taking into account all the information and accepting the plaintiff sustained the wedge fracture in January 2007, Mr Dooley thought the constancy and intensity of the plaintiff’s ongoing pain and his described disability were greater than one would expect to see for his condition. Mr Dooley would have expected the plaintiff to have been able to walk a reasonable distance and engage in low impact activity.
152 Mr Dooley believed the plaintiff had had a psychological reaction to his situation which influenced ongoing symptoms. He noted the plaintiff’s affidavit evidence that he was treated unfairly when he returned to light duties, and that caused him to resign. It was Mr Dooley’s clinical observation that following compensable injury, if patients were treated unfairly or unreasonably by superiors or peers, that could then trigger a psychological reaction ranging from mild to significant. In that setting, pain can become disproportionate to the injury sustained, and often depression and anxiety ensue. Dependence on medication and relation disharmony can also become issues.
153 From an orthopaedic point of view, Mr Dooley believed it imperative the plaintiff increase his activity and undertake low impact exercise. For his overall wellbeing he would benefit from a return to suitable work.
154 Mr Dooley thought the plaintiff had established multi-level degenerative disc disease of the lumbar spine and he had osteoporosis. He believed that in the incident, the plaintiff sustained a superior endplate vertebral compression fracture of the L4 vertebra in the setting of osteoporosis. He believed that at the time, the plaintiff had established multi-level disc disease of the lumbar spine and osteoporosis, and it was most likely that he aggravated underlying degenerative disc disease of the lumbar spine in the fall from the ladder.
155 Mr Dooley thought the plaintiff’s ongoing symptoms related to the crush fracture in the incident, underlying naturally occurring multi-level degenerative disc disease, and to his psychological reaction to the situation.
156 Mr Dooley believed that the constancy and intensity of the plaintiff’s ongoing pain could improve in time. He would not expect his orthopaedic condition to deteriorate. Given the sequelae to a crush fracture, Mr Dooley believed one would have expected the plaintiff to have returned to a wider range of employment, domestic and leisure activities than he had.
157 In his supplementary report, having been provided with reports of all the investigations, it was Mr Dooley’s view there may have been a mild compression fracture involving the superior aspect of the L4 vertebra. That healed over a period of about three months. On looking at the investigations, it is evident that often there is some superior concavity or scalloping of a vertebral body.
158 In Mr Dooley’s view, the reported left L4‑5 paracentral disc protrusion had no relationship to the incident and no relationship to longstanding osteoporosis. He considered it evident from the radiology report that there is significant multi-level degenerative disc disease. In relation to this disc protrusion/ prolapses occur regularly as part of the natural evolution of the degenerative disc disease. They may or may not be associated with symptoms. Most commonly they are occurring spontaneously.
159 Mr Dooley confirmed his view that the plaintiff’s disproportionate pain related to his psychological reaction rather than to any specific organic pathology.
160 Mr Dooley noted the 2012 CT scan reported multi-level degenerative change. The February 2007 CT scan reported the reduction in height of the L4 vertebral body with depression of the superior endplate and a sclerotic area.
161 When the CT scan was carried out in April 2012, there was a history of left low back pain and posterior left leg pain to the ankle. It was specifically commented in the report that a cause for the plaintiff’s left-sided radiculopathy was not seen; i.e., there was no demonstrable disc prolapse that might have been causing nerve root compression and might have been causing the leg pain.
162 In Mr Dooley’s view, the plaintiff’s ongoing left leg pain complaint is not explained by the 2014 CT scan. If his pain was due to L5 nerve root compression, then one would expect to find clinical signs in the form of potential weakness, loss of sensation in a dermatomal distribution, wasting of the left leg musculature and loss of the ankle reflex.
163 Mr Dooley could not explain the plaintiff’s ability to walk 30 to 40 metres only on an organic basis.
164 Mr Dooley noted, when a patient developed a Chronic Pain Syndrome following a soft tissue musculoskeletal injury sustained in a compensable fashion, it occurs as a result of the complex interaction between the physical and the psychological response to pain and injury. The initial reaction is involuntary. In time, pain becomes disproportionate to the situation, and symptoms of depression and anxiety often occur. For the situation to continue over a long period of time, there does need to be some voluntary input. It is not a matter, however, of simply turning on and off symptoms. The behavioural changes become entrenched in time, and patients however, of their own volition, can make an effort to improve and change the situation.
165 Mr Dooley concluded the incident involved a mild compression fracture of the superior aspect of the L4 vertebra and no other injury.
Overview
166 It is not disputed the plaintiff suffered a compensable injury to his back in the incident.
167 The injury involved a compression fracture of the superior aspect of the L4 vertebrae (“the fracture”).
168 Whilst Mr O’Brien and Dr Horsley considered the fracture had healed, following examination in March 2014, Mr Dooley concluded that the plaintiff’s ongoing symptoms related to the fracture as well as underlying multilevel degenerative disc disease and to his psychological reaction.
169 There are also differing medical views as to the involvement of any discal injury with Mr Dooley of the opinion in his second report that the only injury was the fracture and the plaintiff presently suffered from a naturally occurring multilevel disc degenerative disease.
170 However, Mr O’Brien thought the most likely pathology underlying pain generation was that of symptomatic lumbar spondylosis consistent with the stated cause, diagnosing nonspecific back pain which could be regarded as chronic.
171 Mr O’Brien thought the history continued to indicate employment remained a significant contributing factor to the back and leg pain[36] and that the injury was consistent with the stated cause.[37]
[36]T59
[37]T63
172 Dr Horsley diagnosed the fracture with L4-5 pathology.
173 When Mr Jones examined the plaintiff in January 2013 he thought he remained troubled by discogenic low back pain. That assessment resulted in payment of an impairment benefit to the plaintiff pursuant to Section 98C of the Act for the plaintiff’s low back condition with referred pain to lower extremities. No re-examination was arranged with Mr Jones.[38]
[38]T64
174 Counsel for the plaintiff submitted that it was remarkable with the fracture that it is at L4-5 and L5-S1 that have continued to be the source of ongoing pain and disability to the point where the most recent CT scan has shown a disc protrusion to the left at L4-5 and compression of descending left L5 nerve root.[39]
[39]T56
175 However, there was not direct medical support for this proposition.
176 Whilst the defendants’ ultimate position was that the plaintiff’s problems were related to significant lumbar degeneration, he was able to work full time in moderately physical work until the incident with the need for very little treatment in recent years.[40]
[40]T60
177 Although there are a number of incident related explanations for the plaintiff’s ongoing lumbar pain, I am satisfied that the plaintiff suffered an injury to his lumbar spine in the incident, the effects of which are continuing. The evaluative task is addressed to the impairment and not to the injury which caused the impairment.[41]
[41]Richards v Wylie (2000) 1 VR 79 at 86 per Winneke P
178 I am mindful of the fact that the defendants accepted liability for the payment of weekly payments and medical expenses. Further, by letter dated 7 February 2013, the plaintiff was advised liability had been accepted under s98C for low back, with referred pain to the lower extremities relating to an injury, the back legs and knees on 31 January 2007.
179 This acceptance of liability may not be binding, but as said by Ashley JA in Annett Australia Ltd v Taylor,[42] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[42][2006] VSCA 171
180 No such explanation has been forthcoming in the present case.
Credit
181 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[43]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[43](2010) 31 VR 1 at paragraph [12]
182 Counsel for the defendants attacked the plaintiff’s credit primarily on the basis of his failure to give accurate histories to doctors of his pre-incident back condition. Further, the plaintiff had not mentioned his work in late 2007 until cross-examined in this regard.
183 On the plaintiff’s behalf, it was submitted he was unsophisticated and obviously had quite limited education. He was a frank and honest witness who gave evidence of constant pain, varying in intensity, and his evidence should be accepted, particularly in relation to his pre-incident condition.[44]
[44]T62
184 Whilst counsel for the defendants described histories given by the plaintiff as significantly understating the true position in relation to his pre-incident back condition, I do not accept this was the case.
185 Generally, I found the plaintiff to be a truthful witness who made appropriate concessions in relation to matters such as his level of fishing and ten-pin bowling pre-incident. I accept his evidence that his back condition prior to the incident did not interfere with his work and daily activities to any significant extent.
186 Further, whilst surveillance was undertaken, no film was shown.
Histories
187 I am mindful of what was said by the Court of Appeal in Dordev v Cowan[45] in relation to the plaintiff’s credit in this type of case. As Chernov JA said at paragraph 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[45][2006] VSCA 254
188 Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.
189 I do not accept the submission that the histories given to Mr O’Brien[46] and other examiners are so inadequate that their ultimate conclusions are worthless and the ultimate opinion should be disregarded on this basis. [47]
[46]T49
[47]See Dordev (supra) per Chernov J
190 Whereas Mr Dooley was sent a very detailed letter of instruction, the material with which he was provided was not greatly different to other histories relied upon by other examiners. There was no evidence of any ongoing back treatment, just a series of isolated entries from clinical notes on six dates spread out from 1999 to 2006, setting out various attendances relating to back pain and, on occasion, prescription of medication.
191 These entries must be considered against a background of the plaintiff undertaking full-time work of a relatively physical nature with the first defendant.
192 In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the incident is serious and permanent.
193 In Petkovski v Galletti,[48] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[48][1994] 1 VR 436
194 This approach was endorsed by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[49]
[49](2012) 34 VR 309
195 Counsel for the defendants submitted that the plaintiff had a considerable history of low back pain preceding the incident.
196 It was submitted that the cause of the plaintiff’s current complaints is more likely due to his longstanding spinal condition involving L5-S1 and L4-5 and which has included complaints of low back pain since 1994, a mention of sciatica in both 1996 and 2006, a 1996 CT scan indicating a mild annular bulge and a later CT scan indicating a moderate protrusion and various periods of treatment involving the use of Panadeine Forte throughout the years prior to injury.
197 What this summary ignores however is the plaintiff’s condition closer to the incident date. As his general practitioner at that time, Dr Sticklen, noted, the plaintiff had been working full time with no significant back pain prior to the incident. The plaintiff last attended a doctor for back pain in August 2006 and he was not taking any medication at the time of the incident.
198 The table of clinical entries prepared on the defendants’ behalf sets out five attendances for back pain in 1994; none in 1995; five in 1996; one in 1997; none in 1988; six prescriptions of Panadeine Forte in 1999, with a note of laser treatment to the back in December, and complaints of coccyx pain on three occasions; in 2000, numerous attendances for back pain and referral to a specialist in that regard and prescription of Panamax, Panadeine Forte and Naprosyn; three notes of back pain in 2001 with the prescription of Panadeine Forte and Panamax.
199 Thereafter, there are very few attendances. Panamax was prescribed in August 2002 and October 2003 when Panadeine Forte was also prescribed. There was a note of a referral to a physiotherapist in November 2004, a note of ongoing back pain and prescription of Vioxx in July 2005, and the last reference pre-incident was on 8 August 2006, when it was noted the plaintiff needed to see the physiotherapist because his cervical spine was tight and he had a CT of lumbar spine and mild sciatica was noted.
200 Following the fall from a ladder in August 2006, the plaintiff returned to full duties with the first defendant.
201 As counsel for the plaintiff submitted, what happened in January 2007 has been a major move forward in what was present beforehand.[50]
[50]T56
202 There is obviously a very dramatic shift between pre and post evidence by the fact the plaintiff cannot return to work, and a number of his other activities have been lost to him. It was submitted these were considerable consequences given the relative quiescence in whatever degeneration was occurring prior to January 2007.[51]
[51]T66
203 I agree with this submission.
Consequences
204 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[52] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain both in court and to doctors.
[52](Supra) at paragraph [11]
205 Since the incident, the plaintiff has experienced constant low back pain varying in intensity.[53] At times, the pain is so severe he has to lie down.
[53]T56
206 Dr Strickland confirmed this situation, noting the plaintiff had severe constant central lower lumbar spine pain, not consistent with the pre injury situation.
207 The plaintiff had two flare ups of his condition in 2008 and 2010 when he simply bent over. After a short time following both incidents, his condition settled to its usual post incident state.
208 The plaintiff did not attend a doctor from May 2008 until April 2012, when his condition worsened. Prior to that time, he had been advised there was no further treatment available to him and he simply took painkilling medication.
209 In Kelso v Tatiara Meat Company Pty Ltd,[54] Dodds-Streeton JA noted that where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[54][2007] VSCA 267 at paragraph [199]
210 The plaintiff continues to take prescription medication for his back. He takes 150 milligrams of Lyrica on a daily basis and also Tramadol. Occasionally, he uses Valium and also uses Panadol Osteo. Even with painkillers, he continues to have back pain and pain down his left buttock and leg. He could not cope without them.
211 Due to his back pain, the plaintiffs sleep is interrupted considerably.
212 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[55]
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[55](Supra) at paragraph [45]
213 The plaintiff’s intimate relationship with his wife has also been affected by his back injury.
Work and other activities
214 The plaintiff is restricted in his ability to lift and bend, and he is unable to sit or stand or walk for prolonged periods.
215 Because of these restrictions, the plaintiff has been unable to return to his pre-injury duties and is incapable of heavy physical work.
216 The plaintiff, on his return to work post incident, was engaged in light administrative tasks, only working four hours per day, three days a week. He never returned to his pre-injury duties with the first defendant.
217 Since resigning from that employ, the plaintiff’s only other job was as a console operator at a service station where he only worked one day a week for a year and had to cease work as he could not cope due to his back pain.
218 Noting plaintiff’s failed attempt to return to work with the first defendant, Mr O’Brien considered that, physically, he now would be incapable of undertaking his pre-injury duties or any form of employment requiring physical activity. He thought the plaintiff was totally and permanently incapacitated.
219 Whilst Dr Horsley thought the a number of restrictions should apply to any work undertaken by the plaintiff, she thought the plaintiff would not be an attractive candidate in an open and competitive marketplace and believed realistically, he had come to the end of his working life but one would have to consider him totally and permanently disabled.
220 Without providing any detail as to the type of work for which the plaintiff was sited, Mr Dooley simply commented that for his overall wellbeing, the plaintiff would benefit from a return to suitable work.
221 Mr Jones’ assessment was for AMA purposes only and he did not comment on employment capacity. Dr Barton’s’ assessment is now seven years’ old and is of little assistance.
222 The plaintiff’s back injury has prevented him from engaging in his hobby of car restoration. He also has difficulty fishing sitting for long periods. Driving for extended periods is also painful on this basis.
223 Whilst he is his wife’s carer, the plaintiff is restricted in what he can do around the house and garden and gets assistance from his adult son in this regard.
224 Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s lumbar impairment relating to the incident are “serious”.
225 Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
- - -
0
7
0