Grant v Warrcom Pty Ltd

[2012] VCC 191

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-10-06172

PAUL GRANT	Plaintiff
v
WARRCOM PTY LTD and WORKSAFE VICTORIA	Defendants

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JUDGE:	HER HONOUR JUDGE MILLANE
WHERE HELD:	Melbourne
DATE OF HEARING:	20-22 February 2012
DATE OF JUDGMENT:	26 April 2012
CASE MAY BE CITED AS:	Grant v Warrcom Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2012] VCC 191

REASONS FOR JUDGMENT

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Catchwords: s134AB Accident Compensation Act 1985 – serious injury – pain and suffering only – causation – whether injury suffered in compensable circumstances – pre-existing back condition

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Churilov	Nowicki Carbone
For the Defendant	Mr A. Middleton	Wisewoulds

HER HONOUR:

The application

1 The plaintiff seeks leave under section 134AB of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for lower back injury suffered in the course of his employment with the employer, the first defendant, in particular on 23 January 2009. At the relevant time the first defendant traded as Harvey Norman Electrics Warragul.

2       It was common ground that, from 2007, he was employed by the first defendant full-time, in the performance of storeman and delivery duties. According to the plaintiff, this employment involved "travelling to off-site warehouses to facilitate the collection of customer purchases, performing deliveries, entering stock into our database and receiving goods."[1]

[1]Exhibit P1, 3.

3       The plaintiff is 35 years of age.  He completed year 11.  For the next three years or so the plaintiff apparently managed a music store in Dandenong.  Thereafter, the plaintiff deposed to working in various jobs, either performing computer administrative work in businesses operated by his father, working as a console operator for a service station or, for some years, working as a salesperson for Retrovision.

4       The plaintiff was first employed by Harvey Norman as a salesperson at its Cranbourne and Knox stores in the three years from about 2001.  Subsequently, the plaintiff experienced periods of unemployment and, between about 2002 and about 2007 there were, the plaintiff said, periods when he was unfit for work due to depression associated with family and divorce issues.

5       However, by his account, when the plaintiff commenced his employment in 2007 at the Harvey Norman franchise operated by the first defendant, his depressive condition and these issues were largely resolved.

6       The plaintiff remarried in February 2009.  It appears that the plaintiff's new wife was also employed in a management role at the first defendant's Harvey Norman premises at Warragul until her employment was terminated in November 2008 for alleged theft. This event no doubt provides some explanation for the evident antipathy between Vlad Petrovic (the first defendant’s franchisee between approximately July 2008 and May 2001) and the plaintiff, about which I will say more shortly.

7       The plaintiff told the Court that at the date of the hearing he was unemployed and ineligible for Centrelink benefits because his wife's earnings exceeded the threshold by $4.[2] According to the plaintiff they lived off his wife's wage and he, his wife and his two daughters from an earlier marriage currently live with his parents.

[2]Transcript ("TN") 75.

8       In this application the plaintiff submitted that he suffered a serious permanent impairment or loss of lower back function. He sought leave to bring proceedings to recover pain and suffering damages only.

9       Subject to determination of whether the plaintiff’s lower back was injured in compensable circumstances, it was accepted that the nature of the injury, if any, suffered in particular on 23 January 2009 was an aggravation of pre-existing degenerative disease in the plaintiff’s lower spine. The plaintiff also sought to establish that protrusions at the L4/5 and L5/S1 levels were caused by the incident. In this regard he relied both on the revealed pathology and some of the medical opinion.

The evidence

10      At the outset it is appropriate to record my view that this application, which the plaintiff’s counsel initially stated involved an application for referral to a medical panel, was very poorly prepared and presented.  Obviously, the factual contest as to causation required determination by the Court. However, in a case where causation was an issue and the plaintiff’s credit was so clearly challenged, it is reasonable to expect that a further affidavit would be filed on behalf of the plaintiff to update his evidence-in-chief and to respond to significant allegations made by the employer in an affidavit sworn in February 2011, and for there to be evidence from a doctor who treated the plaintiff in the two years since November 2009. 

11      I found myself in the difficult position of having to consider whether, having regard to all the evidence, I was satisfied as to his current treatment regime, notwithstanding any inference arising from the failure of the plaintiff to call this evidence from a treating general practitioner or to explain his failure to do so.

12      The evidence adduced at hearing consisted of the Plaintiff's Court Book[3] (pages 1 to 36, 72 to 78, 109, 115 to 120, which included reports of the defendants’ medico-legal specialists, orthopaedic surgeons Mr Jonathan Hooper, Mr Michael Dooley and Mr Peter Wilde) and the Defendants’ Court Book[4] (pages 1 to 5, 18 to 29 including the earlier report of Mr Dooley submitted on 20 October 2011, found at pages 15 to 17). 

[3]Exhibit P1.

[4]Exhibit D1.

13      The defendants showed at hearing and tendered two DVDs containing film obtained on 17 April 2009 (approximately 4 minutes) and on 14 March 2010 and 24 April 2009 (approximately 8 minutes).[5] The defendants also tendered extracts from the clinical records of the Casey Medical Centre, apparently entered by Dr Richard Lim and Dr Kim Teo on 1 July 2005[6] and 21 July 2007 respectively;[7] extracts from the clinical records of the Central Clinic, Drouin, apparently entered on 19 August 2008 and 4 January 2008;[8] a copy of a Medical Attendant’s Statement apparently signed on 25 September 2009;[9] and, finally, downloaded extracts from Facebook and LinkedIn.[10]

[5]Exhibit D2.

[6]Exhibit D3.

[7]Exhibit D5.

[8]Exhibit D4.

[9]Exhibit D6.

[10]Exhibit D7.

14      The plaintiff also tendered and relied on a “Summary of Periods of Surveillance” document.[11] This records that surveillance was conducted on 16 dates between 9 April 2009 and 28 October 2011 inclusive with sightings on only four of those dates. However, the total film obtained was shown at hearing, approximately 12 minutes over the three dates previously mentioned. The plaintiff was cross-examined, as was the first defendant’s electrical franchisee Mr Petrovic (by video-link to Queensland).[12] Mr Petrovic swore his affidavit on 9 February 2011. The exhibits to this affidavit were not included in the Defendants’ Court Book or the material tendered by the defendants.

[11]Exhibit P2.

[12]TN 124.

The statutory requirements

15      In summary the plaintiff carries the burden of proof (on the balance of probabilities).

16 Under the Act to establish “serious injury” the plaintiff is required to prove that he has suffered a serious permanent impairment or loss of body function. He must prove a compensable injury arising out of or in the course of his employment with the defendant on or after 20 October 1999. The compensable injury must, in its consequence in relation to pain and suffering, when judged by comparison with other cases in the range of possible impairments or loss of a body function, be fairly described as being more than “significant” or “marked”, and as being at least “very considerable.”

17 Permanent in the context of section 134AB requires that the impairment is likely to last for the foreseeable future.

18      In this application I am required to ignore any psychological or psychiatric consequence of the injury suffered on or about 23 January 2009 for the purpose of determining whether the plaintiff has met the test in respect to serious permanent impairment of his lower back function.

The areas of dispute

19      The defendants contested the application on the following bases:

·     Causation:  The defendants denied that the plaintiff suffered injury to his lower back in compensable circumstances.

·     Where, as in this case, aggravation of a pre-existing condition was alleged, the defendants submitted that the plaintiff had not, as he was required to, addressed the matters set out in Petkovski v Galletti.[13] The Court of Appeal has recently confirmed that the principles outlined in this transport accident decision apply to injury occurring in an industrial setting.[14] Essentially, so the defendants submitted, the plaintiff was required to establish what injury had been caused by the plaintiff’s employment, to establish the extent of impairment of his lower back before and after the compensable injury, and to show that any additional impairment of the function of his lower back was, at the date of hearing, both permanent and serious in its consequences.

·     The plaintiff had embellished the consequences of any compensable lower back injury, which were at best minimal and, when viewed globally, did not meet the test.

[13][1994] 1 VR 436.

[14]AG Staff v Filipowicz [2012] VSCA 60.

20      It follows from the matters contested that the defendants challenged the plaintiff's credit.

21      The plaintiff's evidence at times appeared contradictory.  To my mind this was partly due to a lack of precision in the questions asked by the plaintiff's own counsel, and to a tendency on the part of the plaintiff to provide non-responsive and/or vague answers, and to his evident anxiety when responding to questions.  These difficulties were most apparent when the plaintiff gave evidence about his current use of medication, particularly as there was no up-to-date medical information provided by any treating doctor for the period commencing from late 2009 until the date of hearing.  However, I did not form the view that at any stage of the proceeding the plaintiff had actively sought to mislead the Court.

22      It is appropriate to commence by discussing the issue concerning causation and whether the plaintiff suffered compensable injury in the course of his employment, particularly as a consequence of the incident.

The circumstances alleged to have caused compensable injury

23      On 9 February 2009 the plaintiff apparently signed a Worker's Injury Claim Form[15] (“the Claim Form”) in which, among other things, he reported lower back injury at 5:25 pm on 23 January 2009 whilst "getting a split airconditioner for customer when a sharp pain was felt in lower back."  The task the plaintiff said he was performing at the time was "lifting/shifting heavy box."  Relevantly, the plaintiff stated that at 5:30pm he advised a colleague, John Blackall, of the injury. This was notified to the employer on 27 January 2009 "as no employer on site 23.1.09."  The claim form was evidently signed by Mr Petrovic on 11 February 2009.

[15]Exhibit P1, 10-11.

24      Whilst at hearing Mr Petrovic accepted that the Employer Injury Claim Report  (“the Claim Report”) bearing the date 9 February 2009,[16] was probably also signed by him, he nevertheless indicated that these reports were normally completed by him or one of the administration managers with information obtained from a staff member.[17]  I took this to mean that some inquiry was made before Mr Petrovic and/or an administration manager completed this.  This document, among other things, reiterated that the injury was to the lower back and that injury had occurred in circumstances where the plaintiff was "moving heavy object (compressor for air conditioner)."  However, the Claim Report alleged that the injury had been reported to the employer on 27 January 2009 (to "Ash Hughes"), that the plaintiff had time off previously "with same condition", that the injury was "self-inflicted" and that liability was disputed "because of prior back condition.  With refusal of lighter duties and employee played paintball on 31.1.09 from 8 am to 12 pm." 

[16]Exhibit P1, 12-13.

[17]TN 142.

25      As is evident from the Claim Report, when it was signed, Mr Petrovic did not allege that the employer’s records showed an air conditioner had not been sold or picked up on 23 January 2009, as later claimed by him in an affidavit sworn in February 2011 and in his oral evidence. This was because, so Mr Petrovic asserted during re-examination, he had not reviewed a request from an investigator to confirm that delivery of an air conditioner had taken place on 23 January 2009, until after completion of the Claim Report.

26      During cross-examination Mr Petrovic at first accepted the proposition that by late January 2009 he was aware of the plaintiff's allegation "that he suffered his injury on 23 January 2009, in the fashion of pulling at air conditioner at an off site warehouse" when he said "Yeah, I found out about it, not – not by the plaintiff but by actually the administration manager who I think got – his injury was on Friday I think it was brought to my attention Tuesday."[18]

[18]TN 136.

27      However, Mr Petrovic subsequently sought to qualify this evidence when he told the Court that he had been under the impression that "it was just another – another sick day that Paul's called in because he had a bit of a repeat offence having sick days after the weekend"[19] and by further stating that he "only found out about on Tuesday that he wasn't coming in because he was sick.  I did not find out until a later date about the claim or his injury, so I just don't know the exact dates."[20] I did not find this further evidence plausible. In my view it is unlikely that Mr Petrovic, who said he was in charge of a small workplace, had not earlier established why the plaintiff, who never returned to work, was absent. However, if on the Tuesday Mr Petrovic's understanding was as stated, it was common ground that from the date the plaintiff signed the Claim Form, that is 9 February 2009, the employer received the WorkCover certificates, the first of which was issued by treating general practitioner Dr Amal Gergis on 27 January 2009.

[19]TN 137.

[20]TN 138.

28      As to any pre-existing condition, in his only affidavit, sworn on 20 August 2010, the plaintiff deposed as follows:

"8.  In the years prior to sustaining the injuries which are the subject of this claim, I have suffered from some incidences of back pain, which was I understood to have been muscular rather than spinal in nature.  I have reported this pain to my doctors, and have taken anti-inflammatory medication.  Over the years I have taken a few days off work due to my back pain, however these episodes of pain generally resolve quite quickly and did not significantly affect my ability to work or my quality of life (sic)." [21]

[21]Exhibit P1, 2.

29      Without setting out in full the paragraphs of the plaintiff’s affidavit in which this was addressed, the plaintiff alleged injury in the course of his employment particularly attributable to a lot of manual manoeuvring of stock (due to, he said, overcrowding of the first defendant’s warehouses both at the store and off-site), and from mid-2008 attributable to a requirement of new franchisee Mr Petrovic that the plaintiff prepare and make stock deliveries and move stock from the front of the warehouse into the car park each day without assistance.  These were activities which the plaintiff deposed had caused aching and pains particularly in his lower back "on occasions" and had prompted him on "a few occasions" to complain to the Regional Warehouse Manager, David Hayes. The plaintiff deposed that on one occasion Mr Hayes attended the warehouse and, after being shown the problem "caused by overcrowding and lack of manual mechanical assistance," Mr Hayes deferred to Mr Petrovic by informing the plaintiff that, as the boss, what Mr Petrovic "says goes."[22]

[22]Exhibit P1, 3-4 [12]-[17].

30      Alternatively, the plaintiff relied on the incident (to which, as it turned out, most of the evidence and all of the medical reports were directed) described by him in his affidavit as follows:

"18.  On or about 23 January 2009, I was at an off-site warehouse meeting a customer to load a split-system air conditioner into his trailer.  With off-site warehouse pick-ups, the client would generally purchase the item from the store in the week prior to the pickup.  Once an off-site warehouse pickup was completed, I was to take the invoice back to the store and it was supposed to be recorded in the system.  However, the store managers had monthly sales targets to meet and often would not record information until the weeks following the delivery in order to meet their targets.

19.  On or about 23 January 2009, as was ordinarily the case around that time, I did not have a colleague available to assist me.  The air-conditioning unit that the customer was to collect would have weighed close to 100 kg.  The unit was on the warehouse floor up against a wall and was nothing on top of it, however it was packed like are (sic) sardine by the goods on either side of it such that it was very difficult to pull away from the wall.  I tried pulling from the handle in the cardboard, but this broke under the strain.  I then started pulling on the plastic straps which are fast and around them (sic) box.  It was while attempting to pull the box out by its plastic straps that I felt a sharp twinge of pain in my lower back.  I told customer, who was an adult male, that I had heard myself and he then assisted me in pulling out the box.

20.  We then push the box along the ground and into the car park, got it on to the trolley and then took it to his trailer were we were (sic) together managed to load it in.  It was purely by chance that this particular customer was an adult male capable of doing heavy lifting.  Had the customer been less physically able, as had often been the case on previous occasions, I would have had to have done all of the pulling, pushing lifting tasks by myself.

21.  I then drove back to the store and looked for Ashley Hughes, the administration manager, to advise him that I had hurt my back.  He was not working that day, so I told John Blackhall, a salesperson, that I had hurt my back.  I gave John the docket from the air-conditioning unit, and understood that he would take it to Vlad.

22.  I then called Ashley and told him of the incident, however Ashley told me that there was nothing he can do about it then, and that he would deal with it when he next worked.  As it was the end of my Friday shift, I went home"  ("the incident").[23]

[23]Exhibit P1, 5-6.

31      In his affidavit, no doubt in response to the allegation by the employer that the injury was self-inflicted, the plaintiff also described his activities on 31 January 2009 in the following words:

"36.  On or about 31 January 2009, I had a joint bucks party with Ashley Hughes.  I participated in paintball, however about halfway through the game, I had to remove myself from the game as a physical nature the game was increasing pain in my back.  I watched the remainder of the game, and slept on the way back to Ashley's in law's house.  I then showered to loosen up my back, and fell asleep on the couch during the party.  My fiancee later came to pick me up, and supported me on the way to the car."[24]

[24]Ibid 8.

32      In response to the allegations made by the plaintiff, through his affidavit,[25] oral evidence and the bundle of copy “Delivered Sales by Period” and “Written Sales by Period” documents (added to the Plaintiff’s Court Book during the course of the hearing),[26] Mr Petrovic:

[25]Exhibit D1, 1-5.

[26]Exhibit P1, 115-120.

·     Disputed the relationship between the plaintiff’s employment and what he believed to be a pre-existing back condition, adding that when the plaintiff complained about "his pre-existing unrelated back condition" he was offered and invariably declined light duties (predominantly data entry and administrative duties) in the first defendant’s store as a GIR clerk (at paragraphs 4 and 9);

·     Denied that prior to the accident there had been overcrowding and that access to stock stored by the first defendant had been a problem (at paragraphs 7 and 8);

·     Denied the specific allegation (contained in paragraph 15 of the plaintiff’s affidavit) that he had directed warehouse manager, Luke Thomas, not to assist the plaintiff or that he had threatened to replace the plaintiff if he was not capable of performing stock movements on his own (at paragraph 9);

·     Claimed no knowledge of any visit by David Hayes to the warehouse, of which he said he would have received notice had such a visit taken place (at paragraph 11). It was clear from the plaintiff’s responses to cross-examination on this issue that he did not recall, nor could he say that Mr Hayes had met with Mr Petrovic on the date he allegedly visited the warehouse.[27] However, no evidence was called from Mr Hayes on this issue nor was an explanation given for his absence by the employer, who clearly relied on this to challenge the plaintiff’s credit and to contradict the allegation that injury had occurred in the course of the plaintiff’s employment prior to the incident. In making this observation I do not intend thereby to suggest that in this application for leave it was necessary to call evidence to contradict allegations of fact relating solely to the issue of negligence;  

[27]TN 67-68.

·     Contested the allegations contained in paragraphs 18, 19 and 20 of the plaintiff's affidavit set out above by asserting that having checked these, there was no record contained in the first defendant's sales records of an air conditioner unit being purchased or picked up "in the weeks prior to or after 23 January 2009.  All these invoices came across my desk as they need to be "booked out" by me and entered into the system.  The salesperson would have definitely followed up to ensure that the sale was booked out as they would have been paid commission for selling the air-conditioning unit" (at paragraph 12).  However, at hearing Mr Petrovic amended this statement by deleting the words "or after." Both Mr Petrovic and the plaintiff gave evidence about the system for processing invoices and data entry, as well as the first only of the copy Delivered Sales by Period documents tendered. I discuss separately below the evidence given in relation to both the system for processing invoices and the entry of data in this computer generated document;[28]

·     Notwithstanding the WorkCover Certificates provided from 27 January 2009, Mr Petrovic sought to challenge the extent of any injury suffered, by reiterating his earlier allegation in the Claim Report, to the effect that within days of the injury the plaintiff had participated in a physically demanding activity, paintball (at paragraph 13);

·     Sought to establish a motive for the plaintiff falsely claiming that he injured his back in compensable circumstances,[29] by alleging that the plaintiff had lodged his WorkCover claim in response to the termination of the employment of the plaintiff’s then fiancée for an alleged theft in November 2008 (at paragraph 14). He further alleged that as a consequence of this termination both Ashley Hughes (a good friend of the plaintiff) and Luke Thomas (who worked with the plaintiff in the warehouse) had resigned. During cross-examination the plaintiff conceded that Mr Hughes was a good friend ("I was his best man at his wedding" and "Vice versa").[30] However, he denied the thrust of the allegation made. The plaintiff had trouble recalling whether Mr Hughes had resigned "about that time" or whether Mr Thomas had resigned "about the same time, early 2009."[31] He nonetheless indicated his belief that Mr Thomas had resigned for other reasons, after he, the plaintiff, had already left.  It was not clear whether this was intended to mean after the plaintiff left due to injury on 23 January 2009 or, as Mr Petrovic deposed, after the plaintiff formally resigned by way of letter dated 16 November 2009.[32] In any event, I could not reconcile the assertions made in Mr Petrovic’s affidavit to the effect that these employees had left their employment or that the plaintiff had claimed injury as a response to the sacking of the plaintiff’s fiancée, with the information contained in the Claim Report signed by Mr Petrovic on 9 February 2009.  If, as was stated in this document, the injury was reported to Mr Hughes (an assertion also made by the plaintiff) and by Mr Hughes to the employer on 27 January 2009, it is unlikely that Mr Hughes, who was still employed until after the incident, resigned in response to the termination of employment of the plaintiff’s fiancée.

[28]TN 123, 128-135, 142.

[29]Under cross-examination (TN 98) and re-examination (TN 110) the plaintiff denied the allegation made.

[30]TN 69.

[31]TN 72.

[32]TN 72 and Exhibit D1, 2, [5].

33      I was invited by the defendants to draw an adverse inference from the failure of the plaintiff to call evidence from these former employees, Mr Hughes and Mr Thomas. Even if they had some reason for not telling the truth or for refusing to assist the employer, Mr Petrovic failed to contradict the allegation made both in the plaintiff's Claim Form and affidavit that, on 23 January 2009, a salesperson, Mr Blackall, was advised by him that he had suffered injury and further, that this employee (whose absence as a witness was never explained by the employer) was given the relevant docket on the understanding that he would take it to Mr Petrovic.  As my further discussion of the facts and evidence in due course reveals, I formed the view that this circumstance warranted an inference that Mr Blackall’s evidence would not have assisted the employer’s challenge on causation of the incident.

34      Essentially, the employer relied on a Delivered Sales by Period document and a system for processing deliveries (various aspects of which were contested) to dispute the plantiff’s claim that he injured his back while involved in the pickup of an air conditioner unit on 23 January 2009. As to the evidence given in relation to both the system for processing invoices and the entry of data in the computer generated copy Delivered Sales by Period document I note the following:

·     It was common ground that the copy document contained data entered into the first defendant's computer.  This document purportedly recorded delivered sales for the period 23–31 January 2009.  It disclosed only three delivered sales of air conditioners, one on 26 January 2009 and two on 28 January 2009.

·     It was also agreed that when the plaintiff completed delivery of stock he was required to take the signed invoice back to the store and hand this to the store manager.

·     Relying on both his previous experience as a salesperson working at the Cranbourne and Knox Stores and his knowledge of the operation of the Warragul Store, the plaintiff claimed that the dates entered in the computer record represented the date on which the data was entered, rather than the date on which the delivery took place.[33] In support of this proposition the plaintiff cited both what he believed to be a practice of store managers to delay recording this information for some weeks in order to meet monthly sales targets[34] and the occasions on which a lost invoice/docket was replaced.  According to the plaintiff, where an invoice was replaced the delivery date data entered reflected the date of its entry, rather than the original date for delivery.[35]

·     The plaintiff nevertheless generally acknowledged during cross-examination that, just by looking at the document produced to the Court, he was not in a position to dispute that the three air conditioners to which the document referred were delivered on the dates nominated. However, if the plaintiff was correct in his assertion that store managers manipulated the data to meet monthly sales targets, the delivery of the air conditioner on 23 January 2009 could well be recorded in a Delivered Sales by Period document from February 2009 onwards.

[33]TN 55-62.

[34]Exhibit P1, 5 [18].

[35]TN 61-62.

35      Mr Petrovic’s evidence in cross-examination and re-examination in relation to this issue is summarised as follows:

·     He agreed with the proposition that, following pickup by a customer, the delivery person would take the invoice back to the store, after which Mr Petrovic entered the information in the computer system;

·     He agreed that sometimes the invoice was handed to him physically or placed on his desk;

·     Whilst he at first sought to resist the proposition that there may be a delay between a delivery and an invoice being handed to him or placed on his desk, when pressed Mr Petrovic said that there might be a delay in hours or one day, although he clearly thought that the latter was unlikely because his day off was Sunday and warehouse staff only worked, he said, Monday to Friday.  Relevantly, in this application no evidence was directed to what, if any, impact the public holiday (Australia Day on Monday, 26 January 2009) had on the hours worked by Mr Petrovic or the warehouse staff or on the delivery of the invoice to Mr Petrovic the plaintiff said was handed to Mr Blackall on the Friday evening;[36]

[36]TN 129.

·     Appeared to give contradictory evidence about the entry of dates in the Delivered Sales by Period document.  For instance, allowing for the possibility that the entry of data into the computer could be delayed by one day (but no more than one day), during cross-examination Mr Petrovic agreed that there could be "at least" a discrepancy of one day between the delivery date and the date recorded in the document and with the further proposition that all the date on the document showed was the date he, Mr Petrovic, entered data.[37] However, Mr Petrovic contradicted this evidence at the conclusion of his cross-examination by disagreeing with the further proposition that he could not say whether the dates in the document were actual delivery dates or the dates on which he entered the delivery invoice information, and when, during re-examination, he stated that the dates in the document represented the date of delivery or pickup;[38]

·     Whilst he did not exclude the possibility that at times delivery invoices went missing, necessitating the production of a further invoice, Mr Petrovic nevertheless said that every invoice contained a delivery date and a pickup date.  Consequently, any reprinted invoice would still contain the delivery and pick up dates;[39]

·     He apparently agreed with the proposition that he did not record the actual pickup date when he recorded information in the computer system by saying: "No.  When I'm processing an invoice at the end, no, it doesn't record, but the invoice as I said to you originally would have a delivery date on it or a pickup date on it."[40]  According to Mr Petrovic, the original invoice is filed and placed in storage where it is kept for between five or seven years.  He had not looked for the original invoices for the air conditioners referred to in the Delivered Sales by Period document because the sales were made after 23 January 2009, the last date on which the plaintiff had worked.  However, in response both to a request by the Court to clarify the basis upon which he asserted that these items were purchased after 23 January 2009 and to further cross-examination, Mr Petrovic told the Court that the day before he gave evidence he telephoned the Warragul Store. According to Mr Petrovic, he was informed by the floor manager that the store system, which records the date and time of purchase, showed that one unit was purchased and delivered on 26 January 2009, whereas the other units were purchased on 26 January and delivered on 28 January 2009. If accurate, this evidence may account for the information contained in the document. However, it fails to address the central allegation made, namely that sales information was manipulated to meet sales targets in the manner described by the plaintiff, which could explain why the unit the plaintiff said was picked up on 23 January 2009 was not also recorded.[41]

[37]TN 135-136.

[38]TN 141-142.

[39]TN 131.

[40]Ibid.

[41]TN 133-135.

36      Based on the evidence summarised above, I was not satisfied that the system of entering data for delivery or pickup of goods sold was as clear cut as the defendants would have the Court accept.  What is missing, however, is the evidence of a witness with no apparent axe to grind, namely Mr Blackall, the only potential witness to the alleged reporting of the injury and to what next happened to the alleged delivery invoice.  Despite the confusing evidence given by Mr Petrovic concerning the system of entering data, his evidence and the single document on which he relied may have carried more weight had the employer also called evidence from Mr Blackall or provided an explanation for not doing so.

37      The medical evidence for late January 2009 records a contemporaneous report by the plaintiff of work-related injury to his lower back. According to the plaintiff, on the Saturday following the incident he had difficulty getting out of bed. He spent the weekend resting and used a heat pack in an attempt to relieve back pain.  On either Monday or Tuesday the plaintiff made an appointment to see his general practitioner, Dr Gergis, at the Central Clinic.[42] 

[42]Exhibit P1, 6, [23].

38      Dr Gergis’ clinical record confirms that on Tuesday 27 January 2009 the plaintiff complained of lower back pain on both sides, especially in association with prolonged sitting, which had "started last thursday while working, moving stock in warehouse."[43]  Whilst neurological examination apparently produced a normal result, the doctor did, however, note "tense muscle" on the right side of the plaintiff's lumbar spine. She formed the view that the plaintiff was suffering from an “acute musculoskeletal" injury for the treatment of which the doctor prescribed anti-inflammatory medication, Mobic (daily for two weeks), Valium (as a muscle relaxant) and Tramal, a strong pain relief medication.  As I have already indicated, the clinical note also records that the first in a succession of WorkCover certificates was issued for the period to 2 February 2009.

[43]Exhibit P1, 22C.

39      The defendants did not seek to cross-examine Dr Gergis.  This approach, the doctor’s letter of referral to neurosurgeon, Mr Pullar, on 5 February 2009 and the doctor’s report to the insurer dated 12 March 2009 (in both of which she appears to accept that the incident occurred on 23 January 2009) have persuaded me that the reference in the doctor’s earlier clinical note to “thursday” was probably not an error of his making, as he claimed. 

40      It is convenient to discuss the evidence concerning any pre-existing condition impacting the plaintiff's lower back and his treatment following the incident before summarising my findings on whether injury to the plaintiff’s lower back occurred in compensable circumstances.

Pre-existing lower back condition

41      I have already mentioned the plaintiff's affidavit evidence in which he attributed earlier back pain to muscular problems, without saying when these problems had occurred and the Claim Report where the employer disputed liability by alleging the plaintiff suffered from a prior back condition for which he had previously taken time off work.  In cross-examination and re-examination, the plaintiff again ascribed any earlier back problems and pain to muscular problems.[44]

[44]TN 72, 102-3.

42      In his affidavit Mr Petrovic deposed as follows:

"4.  Prior to the incident alleged in the application, the Applicant complained to me about back pain on a number of occasions.  As I understood it is this was a pre-existing condition, unrelated to his employment with the Respondent.  He told me he was taking medication for his back condition." [45]

[45]Exhibit D1, 2.

43      The plaintiff was cross-examined about various entries in clinical records.  The first was an entry in the clinical records of the Casey Medical Centre (not the Central Clinic, Drouin, as suggested to the plaintiff during cross-examination) apparently relating to a consultation with Dr Richard Lim on 1 July 2005.[46]

[46]Exhibit D3 and TN 72.

44      The abovementioned entry, among other things, in a shorthand fashion appeared to record both exacerbation of left sciatica and an associated flu-like illness, for the treatment of which the doctor prescribed Feldene capsules with three repeats.  There is, however, no record of the nature of any complaint made or of any examination findings. 

45      The plaintiff was not able to recall either the doctor's name or any previous episode of left-sided sciatica.[47] Notably the next two entries on this single page extract were made by different doctors (one of whom was general practitioner Dr Kim Teo, the doctor the plaintiff told the Court he attended at the time of hearing for ongoing treatment) on 28 January 2006 and 7 September 2006, for the treatment of unrelated conditions.

[47]TN 72-73.

46      An extract from the Casey Medical Centre records a telephone message from the plaintiff on 21 December 2007 to Dr Teo requesting that the doctor call the plaintiff "re back problems."[48] The plaintiff was not cross-examined about this telephone call.

[48]Exhibit D5.

47      The plaintiff was next taken to 2 pages of entries made in the clinical records of the Central Clinic, Drouin; the same medical clinic in which Dr Gergis practiced.[49] The first entry was apparently made by Dr Suzette Meshreky on 4 January 2008.  Whilst the plaintiff recalled seeing "another lady" doctor at this clinic, he could not recall her name.[50]

[49]Exhibit D4.

[50]TN 73.

48      In any event the last mentioned entry, whilst dealing with an unrelated condition, relevantly recorded that the plaintiff wanted "to transfer record of his back slipped disc" and that the plaintiff was taking Feldene and other medication, presumably for this condition.

49      As far as the plaintiff was concerned, he had no recollection of telling any doctor he had slipped a disc.[51]  Moreover, in re-examination, he denied being told by or having himself told a doctor prior to the incident that he had a slipped disc in his back.[52]

[51]TN 74.

[52]TN 103.

50      Relevantly, the clinical notes made after the entry on 4 January 2008 indicate that by 18 January 2008 the plaintiff's medical file from the "Casey Medical Clinic" had been delivered.[53] They also reveal that on 21 February 2008, and again on 19 August 2008, the plaintiff received treatment from Dr Gergis, on the first of these dates, for "sharp stomach pain," which the plaintiff attributed to lifting heavy weights at Harvey Norman (for which the plaintiff was prescribed rest and Panadol and given a certificate for one day off work) and, on the next date, for a complaint of back pain following a slipping incident.  On the last mentioned occasion the doctor recorded a prior history of "back pain, slipped disc" and examination findings involving tenderness at the L3/4 level and restricted movement of the plaintiff's spine. It is not apparent from the entry made whether this information was obtained solely from the plaintiff or also informed by, for instance, the Casey Medical Centre Records.

[53]Exhibit D4.

51      In any event, by way of treatment, the doctor supplied a sample of painkilling medication, Tramal, a letter for one day off work and she recommended that the plaintiff undergo a CT scan should his condition fail to improve.  Insofar as it relates to any back problems for which the plaintiff was treated during 2008, the entry made in the Central Clinic record - "impression soft tissue injury,?  disc problem"[54] - accords with the plaintiff's evidence and with the report sent by Dr Gergis to the insurer on 12 March 2009, indicating that on 19 August 2008 it was likely that the plaintiff's condition was muscular in origin and that the plaintiff had not again presented for treatment of back pain or undergone x-ray or CT scans of his back until after the incident.[55]

[54]Exhibit D4.

[55]Exhibit P1, 20 and TN 74.

52      It appears that on 25 September 2009 general practitioner Dr Gergis also completed a Medical Attendant's Statement in support of an income protection claim directed to AIG Life. In this Statement, among other things, Dr Gergis noted that the plaintiff, whom she had treated since February 2008, had, in her words: "… occasional back pain before and he reported a history of slipped disc before."[56] 

[56]Exhibit D6.

53      On the evidence before the Court, the plaintiff has been treated at either the Casey Medical Centre or the Central Clinic, depending on changes to his home address.  For instance, the evidence indicates some history of treatment of back pain as far back as mid-2005 at the Casey Medical Centre, the clinic from where Dr Teo, the general practitioner who treated the plaintiff at the date of the hearing, was practising in 2006 and currently practices.  It also indicates that from early 2008 the plaintiff was treated at the Central Clinic, although, as he indicated at hearing, since moving to live with his parents, from late 2009 he has attended the Casey Medical Centre. 

54      As I have already noted, for reasons that were not explained at hearing, Dr Teo did not provide a report.  Due to these matters and the content of the clinical records, as limited as this was, I could not be satisfied that the plaintiff's recollection to the contrary, of itself, was a reliable basis for rejecting the evidence that episodes of lower back pain and symptoms reported in the past had caused a doctor to suspect disc prolapse or what is often referred to as a slipped disc.  However, there was no evidence of investigation confirming this pathology, a diagnosis or relevant ongoing treatment.

55      Importantly, in March 2009, Dr Gergis, despite her likely access to the earlier clinical Casey Medical Centre records and her knowledge that in the past there had been discussion of disc injury, clearly considered the incident responsible for the plaintiff's ongoing back pain. 

56      On the evidence, I was satisfied that in the four years or so prior to the incident any pre-existing problems affecting the plaintiff's lower back were intermittent, had not required further investigation and ongoing treatment, and had not prevented the plaintiff from sustaining physically demanding employment. In all the circumstances, I was satisfied that it is unlikely that prior to the incident the plaintiff was suffering from the effects of discal herniation and protrusions identified on MRI scans obtained in June 2009. I will refer to the scan results in greater detail in my discussion of the plaintiff’s treatment regime during 2009 following the incident. 

57      Relevantly, each of the five specialists who examined the plaintiff during 2010, 2011 and 2012 obtained a past history of back pain, either directly from the plaintiff and/or from the materials to which they were referred.  For instance, orthopaedic surgeons Mr Dooley and Mr Jones both obtained histories consistent with the plaintiff having suffered a strain injury to his back during his early 20s and, in the case of Mr Jones, a further history of occasional soreness.[57]  Mr Jones also had available to him the reports submitted by Mr Dooley and occupational physician Dr Mary Wyatt, but not the correspondence from Dr Gergis to the insurer in March 2009.

[57]Exhibit P1, 34 and Exhibit D1, 25.

58      Dr Wyatt received a report from the plaintiff that "over the years" he had suffered episodic, mild back pain diagnosed as "inflammation" which settled quickly with analgesic medication.[58]  Among her materials, she had the earliest of Mr Dooley’s reports but not Dr Gergis’ correspondence to the insurer.

[58]Exhibit D1, 20.

59      Orthopaedic surgeon Mr Wilde, who also had access to the medico-legal reports submitted by the defendants’ specialists already mentioned, recorded a history of occasional back pain without time off work.[59] The clinical records to which I have referred are consistent with a finding that prior to the incident there was very little, rather than no, time taken off work due to any back problems and they suggest something greater than the discomfort apparently described by the plaintiff during examination by this specialist.

[59]Exhibit D1, 31.

60      The only medico-legal specialist retained by the plaintiff was general surgeon Prof Kenneth Myers.  His materials included correspondence from Dr Gergis addressed to the insurer and dated 12 March 2009 in which, among other things, she recorded the plaintiff's attendance in 2008 for treatment of lower back pain, diagnosed by her as muscular in its origin.  This helps to explain why, notwithstanding his observation that there was no relevant past history, Prof Myers diagnosed the plaintiff's condition as an aggravation of pre-existing, relatively asymptomatic degenerative intervertebral disc disease in the lumbar spine with disc prolapse at the L4/5 and L5/S1 levels.[60]

[60]Exhibit P1, 24-26.

61      Based on all the evidence, I was not satisfied that the limited past history obtained during various examinations compromised the opportunity each specialist had to form expert opinions on any injury caused by the plaintiff's employment and the extent to which the plaintiff’s lower back was impaired before and after 23 January 2009.

62      As I have already stated, the medical evidence was largely focussed on the incident and its consequences.  Mr Dooley and Prof Myers each opined that the incident had aggravated underlying degenerative disease.  Notably, both Prof Myers and Mr Wilde opined that the plaintiff had suffered disc injury.  However, rather than relying on the plaintiff's reported history and committing to this diagnosis, Mr Dooley sought independent confirmation of the nature of any injury sustained in the past. 

63      Without specifically identifying the nature of the injury suffered, the defendants’ specialist Dr Wyatt described the plaintiff’s problem as chronic back pain, with non-verifiable radiculopathy, the symptoms of which she attributed to largely functional factors. Similarly, having noted the radiological evidence of disc protrusions at the L4/4 and L5/S1 levels, Mr Jones nonetheless described back pain and stiffness without clear clinical evidence of sciatica, the symptoms of which he considered disproportionate to the physical activities the plaintiff advised he managed.  

Post-incident treatment and events during 2009

64      Based on the clinical notes up to and including 20 November 2009, Dr Gergis' only report to the insurer on 12 March 2009, her letter of referral to neurosurgeon Mr Craig Timms on 21 October 2009, the Claim Form and the Claim Report, the radiological material, correspondence from Mr Timms addressed to her on 6 March and 28 May 2009, the Medical Attendant's Statement dated 25 September 2009, and a medico-legal report from orthopaedic surgeon Mr Hooper addressed to the insurer 2 March 2009, I note the following matters:

·     I have already discussed the attendance for treatment on 27 January 2009.  On 30 January 2009, on review, Dr Gergis advised the plaintiff to cease taking Tramadol due to its side-effects;[61]

[61]Exhibit P1, 22C.

·     On review by another doctor at the Central Clinic on 2 February 2009, it was recorded that "injury to the lower back for 1 week happened at work, after lifting a heavy box." This entry also recorded severe pain which radiated to the plaintiff’s right thigh, that he was limping on walking, that valium was not helping, that on examination he was tender over the L3 and L4 area and that no neurological abnormality was detected.  The plaintiff was referred for a CT scan and prescribed another strong painkilling medication, Endone;[62]

[62] Exhibit P1, 22B-22C.

·     Without reciting in full the reported CT scan results obtained on 3 February 2009, these noted that the plaintiff suffered from spinal canal stenosis of the lower lumbar spine from L3/4 to L5/S1 related to annular disc bulging at three levels: L3/4 ("mild"), L4/5 ("slightly bowing the anterior theca") and L5/S1 ("slightly bows  the anterior theca and abuts the right descending L5 nerve root, contacting the right exiting L5 nerve root in the exit foramen");[63]

[63] Exhibit P1, 17.

·     On review on 5 February 2009, Dr Gergis recorded that the plaintiff was still in pain, he was not better and that Endone was not helping. It appears that the results of the CT scan were discussed, the plaintiff was prescribed another strong painkilling medication, OxyContin, he was referred to neurosurgeon (Mr Pullar) and a further WorkCover certificate was issued;[64]

[64] Exhibit P1, 22B.

·     As I have already mentioned, on or about 9 February 2009 the Claim Form and Claim Report were signed;[65]

[65] Exhibit P1, 10-13.

·     On review on 20 February 2009, Dr Gergis recorded, among other things, "still significant pain in lower back radiate down both sides on and off taking mobic regularly, oxycontin on and off, valium prn at night."  At that stage it appears that the plaintiff was still awaiting a consultation with a surgeon, physiotherapy was under consideration as a treatment option and a further WorkCover certificate was issued;[66]

[66] Exhibit P1, 22B.

·     In his report dated 2 March 2009, Mr Hooper informed the insurer, among other things, that the plaintiff reported work-related injury to his back  - "on 23 January, 2009, he pulled a compressor from a wall to show a customer, he felt a jarr (sic) in his back, his back continued to bother him and two days later, when he awoke, he could not get out of bed", that he continued to suffer from back pain with intermittent pain down both legs and pain in both feet, that prolonged sitting caused pain, that he was taking Endone and non-steriodal anti-inflammatories and that the plaintiff was unfit for work. Relevantly, Mr Hooper’s clinical examination revealed a "markedly" spastic back and he recommended that this be investigated by MRI scan. As far as I can tell this recommendation was never pursued by the defendants because, during March 2009, the plaintiff’s WorkCover claim was rejected. Mr Hooper clearly found the plaintiff’s presentation genuine and his symptoms consistent with the plaintiff's account of the circumstances giving rise to his back condition;[67] 

[67] Exhibit P1, 30-32.

·     In the first of his reports to Dr Gergis, on 6 March 2009, neurosurgeon Mr Timms noted the plaintiff complained of back pain and bilateral sciatica in association with lifting or pulling an air-conditioning compressor at work in January 2009, and that the plaintiff reported fluctuating symptoms which extended down his legs to his toes, particularly the great toe, pain, burning and tingling, an inability to obtain any significant relief and that he had "not experienced this before.  He has had no trauma to the spine or fractures in the past to the spine."  Notably, the earlier clinical records to which I have referred do not gainsay this description of the plaintiff's pre-existing lower back condition. Based on the CT scan results, Mr Timms suspected that the disc bulge at the L4-5 and the more prominent bulge at the L5-S1 levels were the site of the plaintiff’s pain because they were he said causing some exiting stenosis of the nerve roots. However, due to the plaintiff’s young age, Mr Timms was reluctant to perform surgery, recommending conservative treatment involving hydrotherapy, physiotherapy and epidural injection;[68]

[68] Exhibit P1, 18.

·     As I have already mentioned, on 12 March 2009, in a written response to a series of questions submitted by the insurer, Dr Gergis reported that prior to the incident she had treated the plaintiff once only, on 19 August 2008, for muscular pain and that no previous x-ray or CT scans were available.  In this report the treating doctor attributed the plaintiff's back pain to the incident, indicated that the plaintiff was then unfit for any duties (although in her opinion his condition was improving slowly) and that the medication prescribed was appropriate to the treatment of the plaintiff's injury;[69]

[69] Exhibit P1, 20-21.

·     On review on 19 March 2009, in addition to noting the insurer’s rejection of the plaintiff’s claim, the general practitioner recorded that the plaintiff still walked and rose from a chair with difficulty. She renewed the prescription for Mobic and issued a further WorkCover certificate;[70]

[70] Exhibit P1, 22B.

·     Having reviewed the plaintiff on 28 May 2009, Mr Timms informed the general practitioner that the plaintiff was participating in some hydrotherapy, and there was an improvement in his symptoms. The surgeon also considered the plaintiff might benefit from some physiotherapy. Moreover, Mr Timms also stressed the need for MRI investigation to allow him to accurately diagnose what was happening with the plaintiff’s spine. Contrary to the submission made by the defendants, I did not find the surgeon’s further statement – "obviously if he has had a back injury, an occupation in the future that has a lot of heavy lifting and bending is not sensible"  – when considered in its full context, in any way equivocal or indicative of doubt in the mind of the treating surgeon that there had been a back injury. He was clearly hopeful that further investigations would be undertaken to help him determine the true nature and extent of this injury;[71]

[71] Exhibit P1, 19.

·     MRI scan results obtained by Mr Timms following scans taken on 20 June 2009 reportedly confirmed the clinical diagnosis ("lower back pain and bilateral sciatica?  L4/5 and L5/S1 disc prolapse"), namely: “L4/5 and L5/S1 herniations, with extrusion type herniation at L4/5 in a central location extending caudally and exerting mass effect upon both emerging L5 nerve roots.  Further to this, right paracentral protrusion type herniation at L5/S1 contacts the emerging right S1 nerve root.  Intervertebral disc height loss at this level also results in mild bilateral neural exit foraminal stenosis";[72]

[72] Exhibit P1, 14-15.

·     The next entry in Dr Gergis’ clinical records indicates that in late September 2009 the plaintiff was referred for a repeat CT scan of his lumbar spine which on 7 October 2009 reported – "Small focal disc protrusion centrally at L5/S1 which is very close to the S1 nerve root at the right lateral recess adequate enough to cause root symptoms";[73]

[73] Exhibit P1, 22A.

· The Medical Attendant’s Statement purportedly signed on 25 September 2009 by Dr Gergis, to which I have already referred, additionally recorded some 15 consultations between 27 January and 22 September 2009 inclusive, for work-related back injury,[74] and that subject to restrictions on heavy lifting and pushing, Dr Gergis anticipated the plaintiff would return to work in the future, and that his lower back tenderness was, in her words, "a lot better now." The plaintiff's treatment plan should involve rest, anti-inflammatory medication and physiotherapy (although, consistent with the affidavit and oral evidence of the plaintiff that he had trouble funding ongoing treatment, she also recorded that the plaintiff had not followed up on the referral because he could not pay for this treatment) and she certified the plaintiff as fit to return to modified duties subject to restrictions on lifting more than 5 kg, prolonged standing or sitting, and subject to there being 15 minute rest breaks every 2 hours;[75]

[74] Exhibit D6.

[75] Exhibit D6.

·     On review on 21 October 2009, Dr Gergis recorded, among other things, constant back pain, more to the left side, on waking an inability to "move much" with minimal radiation to the right leg mainly experienced in the morning, Mobic helped slightly, no tingling in the legs and that the plaintiff had not returned to work because he had not heard from his employer and could not go back to work.  Clinical examination apparently revealed tenderness on the left side of the plaintiff’s lower back, no tenderness of the lumbar spine and straight leg raising to about 15° on both side before the plaintiff reported stretching pain.  It appears that Dr Gergis issued another WorkCover certificate and, as her letter dated 21 October 2009 confirmed, the plaintiff was again referred to Mr Timms for advice on possible treatment options.  If the plaintiff did return to Mr Timms there is no up-to-date report from this treating surgeon;[76]

[76] Exhibit P1, 22A.

·     On 16 November 2009 the plaintiff resigned from his employment;

·     The final entry in the Central Clinic records indicates that, on 20 November 2009, the plaintiff reported he had moved to Clyde to live with his parents because he and his partner could not afford to live in their home and that the plaintiff had sought a certificate to enable him to obtain sickness benefits.  I formed the view that, at this stage the plaintiff was probably still significantly physically incapacitated by ongoing impairment of his lower back, although his financial circumstances likely affected his capacity to pay for therapies and/or medication and to continue specialist treatment.[77]

Treatment between 2010 and the date of hearing

[77] Ibid.

65      During cross-examination, the plaintiff agreed that in the two years since his last attendance on Dr Gergis, no further investigations had been undertaken and his only treatment had consisted of tablet medication.[78]

[78]TN 75

66      There was some confusion in the evidence given by the plaintiff relating to his current use of medication.  For instance, in his affidavit sworn in August 2010, the plaintiff stated that he consulted general practitioner, Dr Wen Zhao (from whom there was no report) approximately once a month, and that he took Indocid twice and Endone four times daily and, when his back was feeling particularly painful, he used a back brace that once belonged to his grandmother, although this brace, he said, gave little relief.[79] The plaintiff also deposed that, whilst he wanted to undergo physiotherapy and to consult a chiropractor he could not afford to do this.

[79]Exhibit P1, 6.

67      Relevantly, each of the medico-legal specialists who examined the plaintiff during 2010, 2011 or 2012 (Mr Dooley, Dr Wyatt, Mr Jones and Mr Wilde at the request of the defendants and Prof Myers at the request of the plaintiff's solicitors) understood the plaintiff was taking prescription medication or a combination of prescription and over-the-counter medication.

68      For instance, in November 2010, a couple of months after the plaintiff swore his affidavit, Mr Dooley understood the plaintiff took Panadol Osteo, Panadeine Forte, Feldene, Indocid and Endone.[80] However, after reviewing the plaintiff in September 2011, the specialist reported that the plaintiff had cut back on Feldene but continued to take Panadol Osteo, Panadeine Forte and Indocid.[81]

[80]Exhibit P1, 34.

[81]Exhibit P1, 15.

69      In October 2011, Dr Wyatt understood the plaintiff took Feldene, alternating this medication with Panadol Osteo.[82] Subsequently, in December 2011, Mr Jones understood the plaintiff's medication included Feldene and Meloxicam (Mobic) occasionally, one Endone tablet if the plaintiff was in extreme pain, Panadeine Forte every second day and Digesic or Panadol every second day.[83]

[82]Exhibit D1, 19.

[83]Exhibit D1, 26.

70      On 18 January 2012, Prof Myers noted that the plaintiff’s only treatment had been with medication, including Endone and Feldene. He, nevertheless, understood the plaintiff had not been able to afford physiotherapy or hydrotherapy. I took this to be the reason why the plaintiff also reported that the physiotherapist had been reluctant to treat him.[84]

[84]Exhibit P1, 24.

71      The last of the specialist examinations was undertaken by Mr Wilde on 24 January 2012.  His report indicated that the plaintiff's medication included Feldene and Endone.[85]

[85]Exhibit P1, 73.

72      During evidence-in-chief the plaintiff was asked to explain to the Court his current medication regime and the frequency with which he attended his doctor for treatment of back pain.[86]  The plaintiff's current medication, "at the moment" consisted of, he said, the anti-inflammatory medication, Feldene ("Usually before bed, one per night"), Endone ("One possibly a week.  That's for major pain") and Panadol Osteo "pretty much what I can get hold of at the moment."  When he was asked to estimate the quantity of Panadol Osteo medication taken by him, the plaintiff's answer was at first non-responsive: "The Panadol Osteo, they’re supplied by Mum because I just can't afford to purchase Endone or Feldene as I don't have a health care card."  However, when pressed by the Court to explain how often on average he took Panadol  Osteo each week, the plaintiff responded:  "One tablet per day."

[86]TN 54.

73      As to the frequency with which the plaintiff attended his current treating doctor at the Casey Medical Clinic, Dr Kim Teo, the plaintiff stated this depended on when he could afford treatment. When pressed, the plaintiff estimated that he saw her once a month.[87]

[87]TN 55.

74      Based on this evidence, at the time of hearing, the plaintiff used prescription anti-inflammatory medication nightly, non-prescription painkilling medication daily, stronger prescription painkilling medication possibly weekly and attended general practitioner Dr Teo monthly.  Obviously, if this evidence and reports made to the medico-legal specialists between 2010 and 2012 are accurate, the plaintiff will continue to regularly require prescriptions from a doctor for the anti-inflammatory and stronger painkilling medication to which he referred.

75      However, during cross-examination and re-examination, the plaintiff, who has not worked since the incident, also responded by saying:

·     He was ineligible for Centrelink benefits and a health care card due to his wife's earnings, as a consequence of which he cannot be treated under the bulk billing scheme;

·     After he and his partner moved to live with his parents in late 2009, this and his lack of funds affected both the frequency with which he could afford to consult his current treating general practitioner, Dr Teo, and his ability to afford prescription medication;

·     As yet, Dr Teo had not referred him to a specialist;

·     Dr Teo had not prescribed any treatment because he could not afford to buy medication without a health care card.[88]

[88]TN 75, 103.

76      Despite the evident tension between the responses given during cross-examination and re-examination, and the plaintiff's earlier description of his daily medication regime, when taken as a whole I found his evidence in this regard plausible.  That is to say, where the plaintiff's financial circumstances permitted, he saw his doctor and obtained prescription medication, and he took this and over-the-counter medication daily for the treatment of back pain. 

Compensable injury

77      To summarise then, based on the evidence, the plaintiff has satisfied me that he suffered compensable injury to his lower back on or about 23 January 2009.  Moreover, having regard to the revealed pathology and to the evidence of three specialists (two of the defendants’ three orthopaedic specialists and the general surgeon retained on behalf of the plaintiff) I was satisfied that the incident likely aggravated pre-existing episodically, symptomatic lower back disc degeneration with likely disc prolapse. I was further satisfied that the extent of any impairment due to episodes of pain and discomfort before the incident was not such as to prevent the plaintiff from maintaining full-time employment in a physically demanding occupation and from maintaining the active family/social, sporting and domestic lifestyle described in his evidence.

The pain and suffering and loss of enjoyment of life consequences alleged

78      My summary of these is drawn from the plaintiff's affidavit, sworn in August 2010, and from his oral evidence.[89]

[89]Exhibit P1, 7-9, [30]-[41]; TN 75-84, 106-109.

79      In assessing the consequences, as required, I have considered globally all of the pain and suffering experienced by the plaintiff to which he claimed compensable injury to his lower back materially contributes, including his actual experience of pain and, to the extent that these are apparent from the evidence, any disabling and debilitating effects of the impairment.[90]

[90]See Suttonv Laminex GroupPty Ltd [2011] VSCA 52 [114].

80      The specialists who examined the plaintiff during 2011 and 2012 have accepted that impaired functioning of the plaintiff's back impacts on his physical earning capacity as well as affecting other areas of activity.  However, to varying degrees, three of the defendants' specialists largely attribute the plaintiff’s reported symptoms to non-organic factors.

81      When asked by each of these specialists about his back pain, the plaintiff variously reported:

·     Persisting low back pain;[91]

[91]Mr Dooley, Exhibit D1, 15.

·     No improvement in his back problem with "pain in the left low back, which at times can move to the right side of the low back.  He has pain in the front and back of the left thigh, and sometimes into the outer aspect of the left thigh.  Some days the pain is generally in the left leg.  He can have pain in the back of the left calf and in the side of the left calf";[92]

[92]Dr Wyatt, Exhibit D1, 19.

·     less severe back pain than when first injured and "on some days he is unable to get out of bed or even put on his socks.  In addition to the pain, Mr Grant describes symptoms of back stiffness.  Rarely does the pain ever extend beyond his knees";[93]

·     "pain in his back 50% and 50% of pain refers down the left side and down his left leg to his foot.  He states pain levels vary, from 5/10 to 8/10.  The pain is made worse by sitting for too long or prolonged standing.  He cannot walk more than 200 metres.  He sleeps poorly at night, tossing and turning;"[94] and

·     "constant nagging pain in the low back, worse at night.  Pain is made worse by movements such as bending to dress to put on shoes.  He states that there is pain extending down the left leg every day, down the back of the thigh and leg in front of the knees.  He states that the pain interferes with his sleep and his sexlife (sic)."[95]

[93]Mr Jones, Exhibit D1, 25-26.

[94]Mr Wilde, Exhibit D1, 31.

[95]Prof Myers, Exhibit P1, 24.

82      When specifically asked this at hearing the plaintiff said that his back condition had remained "[a]bout the same."[96] This statement and his evidence generally suggested to me that whilst his condition had not worsened, in keeping with the reports made to the specialists, his day-to-day experience of pain and disability varied and was, at times, aggravated by particular activities.

[96]TN 95.

83      As to pain, in his affidavit and at hearing, the plaintiff stated:

·     He suffered lower back pain which could radiate down both legs to his ankles;

·     Pain increased by prolonged sitting, standing or walking and by bowling.  As for example, when he picked up a bowling ball and bent over to release it and when he exerted force to roll the ball.  According to the plaintiff, having previously played as a professional bowler (until approximately 2004) and, more recently, having played weekly in a bowling league started with his wife approximately one year before the incident, he was no longer able to play bowls;

·     The pain varied.  On the days that the plaintiff felt better he said he tried to be more active.  However, after participating in "an active activity"[97] he tended to experience prolonged periods of increased pain;

[97]TN 35.

·     Pain and the side-effects of medication taken to relieve pain impaired his ability to participate in activities, as he used to, with his daughters now aged 10 and 12 respectively.  Consequently, he rarely ("not – not on a regular basis") takes his daughters bowling (at hearing he said he no longer took his daughters bowling), to the movies (at hearing the plaintiff said they went to the movies "about three weeks ago"), to the zoo or on outings such as to Puffing Billy. In effect, the plaintiff agreed that "they" (which I took to be a reference to his family) went on outings if he was "up to it", although he denied that this was most of the time.[98]  At hearing the plaintiff agreed that in September 2010 he visited the Aquarium, in 2010 and 2011 he visited the beach on a couple of occasions, in January 2011 he visited Sovereign Hill with his wife and daughters and in May 2011 he visited the Museum with his daughters and that, on one occasion, he took his daughter to Casey Fields to partake in a school event.  The plaintiff also agreed that he had engaged in other social activity, such as massage at the Peninsula Hot Springs "to try and ease" his back pain in December 2010 and April 2011 (paid for by his wife)[99] and occasional visits to the pub with his wife and friends.[100] The plaintiff nevertheless maintained that by way of contrast his activities with his daughters were "a lot less now" and that he and his family "before the event of my back we'd constantly go to concerts in the city.  There were many times that I’d go to the driving range to hit golf balls with my now wife.  We were always on the move doing something.…  Whether it be visiting my parents, whether it be going out for dinner on a regular basis, and that's all come down to not a lot now."[101]

[98]TN 76-77.

[99]TN 82.

[100]TN 83.

[101]TN 105.

·     Tiredness and lethargy caused by medication impaired both the plaintiff's ability to stay awake and to concentrate to help his daughters with their homework (at hearing the plaintiff said that he tried but he has not helped his daughters with their homework for a very long time);[102]

[102]TN 76.

·     Pain made it difficult for him to fall asleep and he was often woken by pain.  Impaired sleep apparently causes tiredness throughout the day and a lack of energy.  Moreover, according to the plaintiff on some mornings he wakes up in pain and has difficulty getting out of bed;[103]

·     When pain was bad he required his wife's assistance with showering and dressing because on these occasions he had difficulty drying his lower limbs and reaching down to put on his shoes and socks;[104]

·     He found domestic tasks "painful to complete."[105] The tasks mentioned, which the plaintiff said his wife "now generally undertakes," included vacuuming (pushing the vacuum tended to increase pain), lawn mowing, any heavy lifting (he avoids this "whenever possible") and bending over to stack and empty the dishwasher (this "generally increases the level of pain"[106]).

[103]Exhibit P1, 8 [38].

[104]Exhibit P1, 8 [40].

[105]TN 78.

[106]TN 78.

84      In addition to the evidence summarised above, regarding the performance of domestic tasks, I note the following:

·     In cross-examination the plaintiff gave evidence to the effect that his wife still undertook the domestic tasks already mentioned, although he added that if he felt he could help around "the house with – with something like that I will attempt.  If I can't, I won't continue on with it"[107] and he agreed that he performed all the activities reported to Mr Wilde in January 2012: "He can do some activities at home and he helps with some vacuuming and housework occasionally and some cooking.  His wife works, so he is left with household tasks, mostly getting the children off to school.  He cannot bend so many tasks are restricted.  He does help his parents with the garden and occasionally goes on a ride-on mower.  This however, often makes his back very sore."[108] However, the plaintiff also explained that whilst he did mow his parent’s lawn (which was not large), this was done on a ride-on mower "maybe once every three months, maybe once a month",[109] adding in re-examination that afterwards, his back felt "pretty crappy" because this was a bumpy activity and he experienced "some sort of movement in my back from that";[110]

·     In cross-examination the plaintiff agreed that he stayed at home whilst his wife worked and that his children attended school. However, if he is "laid up in bed" he said his parents cared for the children.[111] 

[107]TN 78.

[108]Exhibit D1, 32.

[109]TN 79.

[110]TN 103.

[111]TN 97.

85      As to social and recreational activities, in addition to the matters already mentioned, I note the following:

·     the plaintiff deposed that he previously played pennant golf and prior to his back injury he had enjoyed playing golf.  It appears that when he suffered his injury the plaintiff was a member of the Drouin Golf Club where he said he had played with Mr Hughes a couple of times a week prior to his injury.  However, the plaintiff was adamant that he had not played golf, at the Club or at all, since his injury, although, as he deposed in his affidavit he had attempted to swing a golf club at home, which had increased his pain (or as he said in cross-examination caused "severe back pain");[112]

·     At hearing the plaintiff agreed that he was a professional musician and he acknowledged a Facebook entry, copied in August 2011,[113] in which he described himself as a self-employed professional musician (guitarist and drummer) since 2000. By his account the plaintiff does not make money from performing, although he has performed in public once and the clips uploaded to YouTube show him at home singing in front of a microphone.[114] It appears that the film shown to the Court at hearing included a YouTube film clip for 24 April 2009, 3 months after the incident and film obtained of the plaintiff on 14 March 2010, standing in front of a microphone, singing and playing a guitar. The latter film, the plaintiff said showed him performing one of two numbers for a non-profit organisation at the The Blind Bight Autumn Festival.[115] In re-examination the plaintiff also explained that following his injury his activity as a professional musician was confined to singing his own music and, if he feels up to recording, he records at home every few months. However, the impression I gained from this sequence of evidence was, as stated by the plaintiff during the re-examination, that the injury had "limited" the plaintiff’s "joy for recording music" because he had not been able to write songs for a very long time and his ability to sing and move around a stage has been compromised.[116]

[112]TN 78, 106.

[113]Exhibit D7.

[114]TN 81-82.

[115]TN 93-94.

[116]TN 106-109.

86      As to the plaintiff’s capacity to return to his pre-injury work or to alternative employment, I note as follows:

·     The plaintiff has not returned to work or retrained for suitable alternative employment. He denied earning income from any source other than Centrelink but said that, recently, he had used a job seekers network to look for work.[117] The plaintiff was taken to an entry in LinkedIn, an advertising site which nominated the plaintiff as an embroiderer for a business called “Wishy World”.[118] This business apparently makes personalised items: baby blankets, towels and bath robes. According to the plaintiff, he is not an embroiderer, rather he takes calls for what appears to be a business his wife ran, which had not made money for 6 to 12 months;

·     In his affidavit, the plaintiff deposed that prior to suffering the injury he had intended to work in his pre-injury occupation until retirement. Each of the specialists considered the plaintiff permanently unfit to return to his pre-injury work and to heavy physical occupations.[119] Whatever view one takes of his residual earning capacity, for the foreseeable future, the plaintiff has lost the opportunity to work in his pre-injury occupation and similar occupations.

[117]TN 79-97.

[118]Exhibit D7.

[119]Mr Dooley, Mr Jones and Mr Wilde, Exhibit D1, 17, 28 and 34; Prof Myers, Exhibit P1, 27.

The medico-legal evidence

87      Before discussing this evidence to which I have referred in passing, it is convenient to comment on the cross-examination during which the plaintiff was questioned in some detail about his ability to bend. When specifically asked about this he baulked at the proposition that anyone could bend 90° from the waist to pick up an object from the ground without also bending their knees. This was after being reminded that on examination, various doctors, (Mr Dooley, Mr Jones and Mr Wilde) had found forward movement ranging between only 25° and 40°.  The plaintiff did, however, say that he would have to bend his knees to pick up something from the ground.

88      In addition to the film I have already mentioned, at hearing, the defendants showed another short segment of film taken of the plaintiff at the front of his home and in his back garden on 17 April 2009, less than three months after the incident.

89      Part of this film, taken over a fence, depicts the plaintiff in his back garden throwing a ball, under and over arm.  From my observation, the plaintiff at different times bent, patted a dog and he appeared to bend to pick up the ball before tossing it again. During this filming the plaintiff’s actions were partially obscured by the fence.

90      In cross-examination it was put to the plaintiff that this film showed him capable of bending "almost completely to 90 degrees, if not to 90 degrees?"  To this the plaintiff replied: "Under medication, yes."[120] In fact, when questioned about this the plaintiff was, he said, "[p]retty sure" that he had taken one Feldene tablet which he thought would have been in the morning. 

[120]TN 94.

91      Whilst I consider it unlikely that the plaintiff could specifically recall the medication and dosage taken on that particular day, the clinical records of Dr Gergis indicate that in the weeks preceding this film, having already prescribed OxyContin, Valium and Mobic, on 19 March 2009, she renewed the plaintiff's prescription for Mobic.  In these circumstances, I think it likely that when this film was obtained the plaintiff was still taking prescribed painkilling, anti-inflammatory and anti-spasmotic medication which probably did improve his movement and mobility, so that by late May 2008 the plaintiff had, as recorded by his treating neurosurgeon, Mr Timms, reported that his symptoms, whilst not resolved, were improving. 

92      Despite the response given at hearing, having seen the film I could not be satisfied that it depicted the plaintiff bending to 90 degrees and, if he did bend to this extent, I could not discern from the film alone that he did so without bending his knees. This observation is not intended to deny the problems the medico-legal specialists reportedly encountered during clinical examination when they sought to evaluate factors such as the plaintiff's range of movement. 

93      The question I must determine is whether, for the purpose of determining the seriousness of the compensable injury, the medical evidence has sufficiently identified physical consequences of the lower back injury, despite the presence of non-organic factors.[121]

[121]See Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, [19]-[20].

94      Essentially, all the defendants’ medico-legal experts concluded that non-organic factors were likely affecting the plaintiff's presentation, although, as I have already noted they each found that impairment of the plaintiff’s lower back likely permanently limited his physical capacity to perform unrestricted work.  It follows from this that the plaintiff's physical capacity is probably similarly restricted in other areas of activity, whether this involves walking, bending, twisting, lifting or prolonged standing and sitting or, for that matter, playing sports such as bowling and golf.

95      Each of the defendants’ specialists commented on non-organic factors.  For instance, Mr Dooley, who examined the plaintiff in December 2010 and in September 2011, considered that the constancy and intensity of the plaintiff's reported pain ("currently has more bad days than good days.  He said that some days he is not able to get out of bed because of his pain"[122]) and the indications his saw of abnormal illness behaviour ("including altered sensation in non dermatomal distribution"[123]) were disproportionate to the injury sustained and to the degree of underlying degenerative disease. This is not to say that Mr Dooley did not also find indicators of organic injury such as a reduction in the plaintiff’s right ankle reflex, noted by the doctor during the most recent clinical examination.

[122]Exhibit D1, 15.

[123]Exhibit D1, 17.

96      Following her assessment in October 2011, Dr Wyatt also raised concerns about the extent to which the plaintiff's condition was mediated by non-physical factors.  Her conclusions are probably best summarised by the statement that: "Mr Grant's general presentation suggests a large functional element to his presentation.  His substantially reduced movement is not concordant with this type of back problem.  The demonstrated limp would be expected to be associated with wasting of the left leg muscles if it was consistently present, that and the jerky widespread weakness in the left leg is non-organic."[124]

[124]Exhibit D1, 21.

97      Dr Wyatt's conclusions also appear to have been influenced by the plaintiff’s advice that since he ceased work his treatment has largely consisted of medication and, whilst he conceded that his doctor had encouraged exercise, by the plaintiff’s report that he was too fearful to perform specific back exercises.

98      However, in light of the plaintiff’s evidence of ongoing use of medication, the likely frequency with which he attended Dr Teo and his evident lack of funds to pay for specialist treatment and other interventions following his injury, I was not persuaded that particular weight should be given to the limits on the treatment received.  In assessing the extent of the plaintiff's organic injury, Prof Myers had in all the circumstances very reasonably allowed for the plaintiff’s report that his treatment options were constrained by lack of financial support.

99      Mr Jones reported that during the course of the clinical examination, sensory testing had revealed some diminished sensation affecting the posterior aspect of the left calf and medial and lateral aspect of the plaintiff's left lower leg, although the sensation in the sole of the left foot was said to be normal.  Mr Jones concluded that the plaintiff suffered from "back pain and stiffness with x-rays revealing some disc protrusions both at the L4/5 and L5/S1 levels.  There was no clear clinical evidence currently of sciatica."[125]

[125]Exhibit D1, 26-28.

100     Mr Jones did not accept the plaintiff's account of his symptoms because of what he perceived to be a disparity between the physical activities the plaintiff appeared capable of performing and the level of pain, symptoms and incapacity described by the plaintiff stating that: "his requirements for medication seems relatively minimal in light of the described level of back pain and symptoms he experiences.  The particular impact that this patient's injury has caused imposes a restriction on his ability to bend and lift.  There appears to be some minor limitation on his capacity to sit, walk and stand."[126]

[126]Exhibit D1, 28.

101     From my reading of their reports, the two specialists who examined the plaintiff in 2012, one an orthopaedic specialist reporting to the defendants and the other a general surgeon reporting to the plaintiff’s solicitors, were not distracted from their task of identifying the nature and consequences of any compensable physical injury by the likely presence of non-organic factors. These factors notwithstanding, both specialists found the plaintiff’s complaint of ongoing work-related back pain and disability credible.

102     Mr Wilde, who examined the plaintiff on 24 January 2012, had access to all the defendants’ reports to which I have already referred, including Mr Timms’ correspondence to Dr Gergis in 2009 and the reports relating to the radiological investigations.  Based both on the history received (similar to that obtained by his colleagues) and the plaintiff's presentation, Mr Wilde concluded that the plaintiff was "psychologically distressed by his chronic pain" and that this served "to amplify the stated physical symptoms."[127]

[127]Exhibit D1, 34.

103     However, Mr Wilde’s clinical examination had also revealed, among other things, sensory change to the dorsum of the plaintiff’s left foot which, notwithstanding the absence of associated muscle wasting or weakness, Mr Wilde related to left L5 radiculopathy.

104     Even allowing for some amplification of his symptoms, if the symptoms relating to back pain and disability as reported are accepted as genuine, Mr Wilde’s conclusion that the plaintiff suffers from a work-related disc injury causing back pain and intermittent radiculopathy additionally finds support in the clinical findings made and in the reported results of radiological investigations, both CT and MRI, obtained during 2009. Morevoer, Mr Wilde concluded that the prognosis was poor, that the plaintiff would likely suffer permanent low-grade symptoms of chronic lumbar pain and stiffness and that he would need to modify personal and work activities to accommodate his symptoms so as to avoid further deterioration.

105     Prof Myers, who also examined the plaintiff in January 2012, obviously had some difficulty during the clinical examination because "there was apparent appreciable pain getting on and off the couch. He was reluctant to attempt any movements of low back. Straight leg raising was restricted to 40° on either side by pain in the back. The stretch test was negative. I was unable to elicit any deep reflexes. There is no apparent wasting of the limbs."[128]

[128]Exhibit P1, 25.

106     In accepting that the plaintiff would experience long-term pain and suffering caused by a symptomatic aggravation injury, Prof Myers paid close attention to, among other things, the results of the investigations and the earlier reports submitted by the treating doctors and by Mr Hooper and Mr Dooley. I expect that these matters also influenced his recommendation that Mr Timms review the plaintiff’s condition to determine whether it would be appropriate to remove the prolapsed discs which Prof Myers believed remained symptomatic, despite conservative treatment.  No doubt in the light of his ongoing condition, review by the treating surgeon is desirable. However, absent further investigation and review, for the purpose of this application, in evaluating the seriousness of the consequences of compensable injury based on this one report, I have not afforded great weight to the possibility of surgery in the foreseeable future. 

107     However, relying on my evaluation of all the evidence, I have preferred the most recent medico-legal evidence, submitted by specialists retained by both sides.  Their reports are detailed.  Mr Wilde, in particular had the opportunity to consider the reports submitted by the defendants’ other specialists.  I have also had the advantage of hearing the plaintiff’s evidence and, whilst I did not accept all of his evidence, I was nevertheless satisfied that he provided the Court with a credible account of both the incident and his circumstances to the date of hearing.  These matters have helped me overcome any concerns I raised about the absence of evidence from Dr Teo. 

Findings

108     In summary then, in the course of his employment with the first defendant and in particular on or about 23 January 2009 the plaintiff suffered compensable injury to his lower back, likely involving aggravation of degeneration and injury to lumbar disc/s.  He is a comparatively young man who likely endures persistent, albeit variable levels, of pain. Moreover, without repeating these, there are many activities spanning his work, domestic and social life, which are likely diminished and/or lost to the plaintiff.  On balance, the plaintiff has satisfied me that the matters described by him equate with meaningful and significant restrictions impacting for the foreseeable future on the plaintiff's employment capacity, his day-to-day activities and his enjoyment of life. 

109     Based on all the evidence, the plaintiff has satisfied me that the impairment of his lower back is permanent, in the sense that it is likely to last for the foreseeable future, and serious because, when judged by comparison with other cases in the range of possible impairments, the pain and suffering consequence meets the "at least very considerable" test.

Orders

110     For these reasons I propose to make an order granting leave to the plaintiff to commence common law proceedings against the first defendant in respect of pain and suffering damages only for injury suffered to his lower spine in the course of his employment.  I will hear from the parties as to the making of orders.