Grbic v DVP Engineering Pty Ltd and Cambridge Integrated Services (Vic) Pty Ltd
[2012] VCC 2006
•20 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-06348
| DARKO GRBIC | Plaintiff |
| v | |
| DVP ENGINEERING PTY LTD | First Defendant |
| and | |
| CAMBRIDGE INTEGRATED SERVICES (VIC) PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12 and 13 December 2012 | |
DATE OF JUDGMENT: | 20 December 2012 | |
CASE MAY BE CITED AS: | Grbic v DVP Engineering Pty Ltd & Cambridge Integrated Services (Vic) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2006 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury to the low back – whether the consequences are “at least very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd v Podolak & Ors (2005) 14 VR 622
Judgment: Leave granted to the plaintiff to commence proceedings claiming damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dubrow | Drakulic Lawyers |
| For the Defendants | Mr D Churilov | Thomsons Lawyers |
HIS HONOUR:
1 Darko Grbic alleges that he suffered injuries to his low back in the course of his employment with the first defendant when he slipped and fell on or about 5 May 2006. He seeks the leave of this Court to issue proceedings to recover pain and suffering damages in respect of that injury.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that the injury suffered by him is a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a) permanent serious impairment or loss of a body function”
4 The body function relied upon in this application is that of Mr Grbic’s low back.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors (2005) 14 VR 622 at paragraphs [18] and [19]
6 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[3]
[3]Section 134AB(38) (b) and (c)
7 Mr Grbic submits that the pain and suffering consequences of his injuries can fairly be described as being more than significant or marked and as being at least very considerable. The defendants deny this is so.
8 During the hearing, Counsel for Mr Grbic announced that the application before the Court was to proceed only against the first defendant, DVP Engineering Pty Ltd. I shall refer to it as “the defendant”.
Background
9 Mr Grbic is aged thirty-four. He is married with three young children. He was born in Bosnia and migrated to Australia in 1993. He completed Year 11 at school.
10 He completed a four-year boilermaker apprenticeship with the defendant and has remained employed by it to this date. It was not disputed that his work record is an impressive one.
11 The defendant’s business involves the fabrication and erection of structural steel. Mr Grbic’s duties included cutting, grinding and welding of steel. It was heavy physical work.
12 In about 2000, Mr Grbic attended his doctor complaining of low-back pain. In his affidavit sworn on 3 August 2010, he deposed that this back pain lasted a week or so but then recovered. He deposed in his first affidavit that prior to 2006 he had not experienced any back pain for many years.
13 Notwithstanding, the evidence revealed that in April 2004, he experienced some upper back pain and attended a chiropractor on four occasions.
14 He did not take time off work in either 2000 or 2004 as a consequence of those complaints.
15 On 13 May 2005, Mr Grbic underwent a CT scan of his lumbosacral spine.[4] In oral evidence, Mr Grbic recalled that this investigation was performed after he complained to a general practitioner that he had painful heels. He maintained that, at that time, he was not experiencing back pain as such. I shall comment further in relation to this evidence later in these reasons.
[4]Defendants’ Court Book (“DCB”) 1
16 In oral evidence, Mr Grbic conceded that between 2000 and 2006, he may have had a stiff lower back from time to time. He described this as muscle pain or stiffness and conceded that he may have experienced it once a year or so. Indeed, in his second affidavit sworn on 4 December 2012, Mr Grbic referred to occasional back pain on and off for some five years or so before 2006.
17 The CT scan of December 2005 was reported as showing some degenerative change at the L2-3 level, and at the L5-S1 level, early Grade I spondylolisthesis. At that level, there was left postero-lateral disc material present, encroaching the exit nerve root foramen and implicating the exiting nerve root.
18 On 5 May 2006, Mr Grbic slipped on a wet floor whilst climbing down from the tray of a truck. He landed on his back and head. He suffered low-back pain. He reported the injury and completed an incident report. It is this accident that is the subject of this application.
19 He continued working, performing his normal duties on a full-time basis. He did not take time off at that point. He experienced occasional pain-free days. However, the pain would return. There were instances where he considered seeing a doctor but his pain would dissipate. As time passed, his pain did not improve. In April 2007, he consulted his general practitioner, Dr Peter Pjesivac. By that time, he said that he was experiencing constant back pain.
20 In the period between May 2006 and April 2007, although he worked full time on normal duties, I accept his evidence that he was given assistance by his work colleagues with the heavier work.
21 Dr Pjesivac referred him to physiotherapy, which did not assist. In August 2007, Dr Pjesivac referred Mr Grbic to Mr Brian Barrett, orthopaedic surgeon, who arranged x-rays and a CT scan. He advised Mr Grbic that his was not a suitable condition for surgery.
22 Mr Grbic states that in addition to back pain, he experienced pain down his legs from early 2007.
23 Treatment to date has been conservative.
24 In 2008, Mr Grbic was transferred from the factory floor to the defendant’s office, where he has been performing clerical work since. The work is obviously much lighter.
25 He takes Panadeine Forte on a weekly basis. He has been advised to, and does swim regularly. He has continued to suffer from back pain and right leg pain. He occasionally suffers some left leg pain. He has coped with his current clerical duties, although has difficulty being seated for long periods. Most of his work involves him being seated, but he is able to take short walks during the working day, which assists.
Diagnosis of injury and/or Aggravation
26 Mr Grbic was cross-examined at length about the extent of symptoms of low-back pain prior to the slipping incident of May 2006. This was relevant, because counsel for Mr Grbic advised the Court at the commencement of the hearing that the application related only to injury suffered by Mr Grbic on 5 May 2006. Specifically, the application did not relate to injuries sustained in the course of his employment with the defendant from 1999. It followed that, insofar as Mr Grbic may have suffered injury or aggravation of injury as a result of heavy duties performed by him during the course of his employment prior to May 2006, these did not form the basis of the application.
27 In cross-examination, Counsel for the defendant put a number of matters to Mr Grbic concerning earlier problems concerning his low back:
(a) The complaint of low-back pain in July 2000 was described by Mr Grbic as occurring when he was carrying a purlin, weighing approximately 100 kilograms, with another employee. He had seen Dr Pjesivac at that time but had not been placed on any medication and had not taken time off work. Dr Pjesivac had suggested some exercises.
(b) Although Mr Grbic had said that his 2004 back pain related to his upper back, between his shoulder blades, Counsel for the defendant suggested that the chiropractor’s notes revealed a reference to low-back pain also at that time. Those notes appear at pages 56 and 57 of the Defendants’ Court Book. They appear to indicate that Mr Grbic attended for chiropractic treatment on four occasions in 2004: 30 April, 4 May, 17 June and 17 September. I am unable to decipher the chiropractor’s handwriting. Although I agree with Counsel that it is possible that there is a reference to “LBP” (the assumption being that this stood for Low Back Pain), I am not able to confidently say this is so. Mr Grbic gave evidence that the only pain suffered by him at that time was upper back pain.
(c) In a Certificate of Capacity dated 31 August 2007, Dr Pjesivac recorded the following:
“Has had a lower back pain over the last 5-6 years on repetitive lifting/bending.”[5]
[5]DCB 1A
(d) In his clinical notes, Dr Pjesivac recorded, on 4 April 2007, the following:
“Low back pain for five years – worse over the last two years.
CT 2y. ago.” (Sic)
(e) In a letter dated 16 August 2007, Mr Barrett noted the history provided to him by Mr Grbic at that time was that –
“… About five or six years ago he noted some lower backache after bending and lifting work. He later noted some pain radiating into his legs and feet but not enough to cause any loss of working time. During 2006 he had a heavy fall at work landing on his buttocks on a concrete surface … .”
28 Counsel for the defendant was critical of Mr Grbic, submitting that he had not been frank concerning earlier low-back problems when providing histories to medical practitioners examining him.
29 The history given to Professor Bittar, consultant neurosurgeon, in January 2012 was that he had had some low-back pain in about 2001 and that it had settled completely after approximately one week. He had several further episodes of lower back pain over the next five years without significant leg pain, all of which settled with self-administered exercises.
30 The history given to Mr O’Brien, orthopaedic surgeon, in March 2008 was that in about 2001, following the lifting incident, he experienced an episode of low-back pain which was treated with an exercise program which resolved the pain.
31 The history to Mr Gale in September 2008 was that he had had two episodes of brief back pain: the first after a heavy lifting incident in 2001; and on a second occasion, the date of which he could not recall. In each case, symptoms settled completely without specific treatment. The second of those instances related to pain between the shoulder blades.
32 The history to Mr King in February 2011 was that there had been several minor incidents of back injury. On one occasion in 2001, he developed low-backache while lifting but lost no time from work, and symptoms all settled after a few weeks. There was no other history of low-back symptoms.
33 I accept the submission that Mr Grbic may not have provided those doctors with a complete history of his prior low-back pain. However, taking all of the evidence into account, I consider that it is likely that the prior symptoms amounted to occasional and intermittent symptoms of low-back pain. This is not surprising given the heavy nature of his duties between 1998 and 2006. I note that on no occasion was he required to take time off work or receive any specific treatment in respect of those symptoms. I consider that they were relatively minor and not of any significant duration. Mr Grbic described them as muscular in nature and quite unlike the symptoms suffered by him following May 2006. I accept that evidence. It is clear that the 2001 incident referred to by Mr Grbic in fact occurred in 2000. Nothing turns on this.
34 Counsel for the defendant was critical of the failure by Mr Grbic to advise doctors who had examined him that he had had a CT scan of his lumbosacral spine in May 2005, approximately one year before the slipping incident. That scan had been requested by Dr Geoff Feben. Mr Grbic stated that Dr Feben was a general practitioner in Dandenong on whom he attended on some occasions when Dr Pjesivac was away or unavailable. Mr Grbic stated that he had seen Dr Feben in relation to a problem with his heels and Dr Feben had arranged for a CT scan of his low back at that time. Mr Grbic maintained that his memory was that the CT scan was not related to symptoms of low-back pain as such.
35 No report was provided from Dr Feben. There was no explanation for the failure to call him or to obtain a report from him.
36 This is an application involving a back injury alleged to have occurred on a particular date in May 2006. The fact that a CT scan was taken of Mr Grbic’s lumbosacral spine one year earlier is, on any view, of significance. His explanation that the CT scan (at least as far as he understood it) was conducted in the context of seeking a cause for his complaints of heel pain is, whilst unusual, one that I accept. Notwithstanding the referral for the scan, it is apparent that Mr Grbic took no time off work in 2005 around the time that the scan was taken, and continued to perform his normal full-time and heavy duties over the next year.
37 The report concerning the CT scan taken in May 2005 included the following:
“At the level of L5/S1 there appeared to be pars interarticularis defects present on either side in keeping with spondylolysis which in conjunction with the straightforward slip of the body of L5 on S1 as referred to above would be in keeping with an early grade 1 spondylolisthesis. Also at the level of L5/S1 on its left side laterally there appeared to be disc material present encroaching the left lateral exit nerve root foramen and impinging the exiting nerve root.
Conclusion
Disc space narrowing at the level of L2/3 with degenerative changes involving its intervertebral disc as evidenced by the presence of vacuum phenomena. At the level of L5/S1 an early grade 1 spondylolisthesis. Left posterolateral disc material present encroaching the exit nerve root foremen and implicating the exiting nerve root.”[6]
[6]DCB 1
38 An x-ray and CT scan of the lumbar spine were taken in August 2007 at the request of Mr Barrett. The x-ray was reported as showing a Grade 1 forward slip of L5 on S1 associated with bilateral pars interarticularis defects. The CT scan was reported as showing a Grade 1 forward slip of L5 on S1 associated with bilateral pars interarticularis defects at L5. In spite of this, the report said that the central canal and exit foraminae are not compromised and there was no evidence of disc protrusion.[7]
[7]PCB 54
39 An MRI scan was conducted in November 2007 at Mr Barrett’s request. This was reported as showing a small left paracentral L5-S1 disc protrusion without neural contact, displacement or compression. There were pars intra-articularis defects at L5 with no associated spondylolisthesis. There was mild L4-5 and L5-S1 facet joint arthropathy and mild disc degenerative changes at other levels without neural impingement.
40 It is regrettable that no doctor had the opportunity of comparing the 2005 radiology with the post-accident radiology. Counsel for the defendants submitted that no doctor had the full history when expressing their opinions concerning the nature of injury suffered by Mr Grbic in the slipping incident. However, a perusal of the medical evidence makes it clear that most doctors did make the assumption that Mr Grbic had pre-existing changes in his lower spine.
41 There was no report as such from Mr Barrett. Five letters from him addressed to Dr Pjesivac were tendered. However, Mr Barrett appears to have been aware that there was pre-existing spondylolysis that pre-dated the accident. This is clear from his letter of August 2007.[8] Mr Barrett was of the view that this condition made Mr Grbic’s lumbar spine much more vulnerable to strains and stressors and that, if he continued with his heavy physical lifting work, his symptoms would inevitably increase in severity, possibly to the point where operative treatment became the only alternative.[9] Mr Barrett pointed out that many people have this bony defect and manage without significant problems provided they avoid the heavier aspects of lifting. In his letter of 6 December 2007, Mr Barrett expressed the view that Mr Grbic must avoid prolonged stooping and heavy lifting situations in the future or his lumbar spinal problems would accelerate and cause him increasing disability into the future. Mr Barrett did not provide an opinion as to the causative link between Mr Grbic’s symptoms during 2007 and the accident of May 2006.
[8]PCB 46
[9]PCB 46
42 Mr John O’Brien, orthopaedic surgeon, saw Mr Grbic at the request of the claims agent in March 2008. He was of the view that his spondylolisthesis clearly predated the onset of symptoms. Nevertheless, he considered that the history he was given indicated that Mr Grbic’s employment was a significant contributing factor to his ongoing spinal pathology. The history that he was given was that the fall at work had precipitated back pain. Mr O’Brien did not think that Mr Grbic should be undertaking his normal (pre-accident) duties. He thought he would be able to pursue employment which involved modified duties not placing excessive physical stress on the lumbar spine. He thought that situation was possibly permanent.
43 In September 2008, Mr Timothy Gale saw Mr Grbic at the request of the claims agent. Although he was unaware of the May 2005 CT scan, it was his view that there was pre-existing pars interarticularis defect of L5 producing an element of spondylolisthesis at that level. He thought the fall at work had likely caused symptomatic aggravation of his pre-existing pathological process involving the lumbar spine. He opined that his employment had been a significant contributing factor.
44 Mr Kevin King, orthopaedic surgeon, saw Mr Grbic at the request of his solicitors in February 2011. He, too, was unaware of the 2005 CT scan. He considered that there had been an injury to Mr Grbic’s lumbar spine superimposed upon pre-existing minor degenerative changes in the lower two lumbar discs and a spondylolysis at the L5 level, which he noted had not caused any previous trouble. He opined that that condition, without slip, was found to occur in about eight per cent of the general population and the great majority of those people with that minor defect had no significant problems. He considered it reasonable to conclude that the heavy fall suffered by Mr Grbic in May 2006 did cause damage to the lower two lumbar discs and associated ligamentous structures, produced disc bulges at both levels with some nerve root irritation and had left him with a chronic, nagging backache radiating into the buttocks and thighs which was partially discogenic and partially due to mild nerve root irritation. Mr Grbic had been left with chronic back pain of mild to moderate severity with some bilateral thigh pain and was unfit to go back to heavy unrestricted boilermaker’s duties. He had been left with a significant long-term impairment of spinal function. Further deterioration may occur if he went back to heavy work.
45 Professor Richard Bittar, consultant neurosurgeon, saw Mr Grbic at the request of his solicitors in January 2012. His diagnosis was one of aggravation of lumbar spondylosis. He considered the employment with the defendant had been the dominant contributing factor and specifically the injury occurring in May 2006 was a significant contributing factor to his current condition, disability and requirement for treatment. He considered that Mr Grbic was permanently incapacitated for pre-existing duties as a boilermaker/welder, but that he did have a capacity for suitable duties, and noted that he was currently working.
46 Mr Peter Kudelka, orthopaedic surgeon, saw Mr Grbic in September 2010 at the request of the defendants’ solicitors. He considered that the episode in May 2006 was an aggravation of a pre-existing condition and that in as much as symptoms had not returned to normal function as prior to the accident, there would be an element of ongoing contribution from that incident which had not clinically resolved and might never to so.
47 Whilst it is regrettable that these doctors were not provided with the earlier CT scan, each of them appears to have based their opinions on the fact that there was pre-existing spondylolysis, spondylolisthesis or at least degenerative changes in Mr Grbic’s lower spine pre-dating the May 2006 accident. Based on that evidence, I consider it likely that the accident produced an aggravation of the pre-existing condition, rendering the condition symptomatic or at least resulting in much more substantial symptoms of pain. There was no evidence that the pre-existing condition would necessarily have progressed or have interfered with Mr Grbic’s employment. Whilst Mr Barrett expressed the view that Mr Grbic’s symptoms would inevitably increase with heavy physical work, such opinion was based on his post-May 2006 condition. I accept that Mr Grbic’s symptoms substantially came about after a fall onto his buttocks on a concrete floor. I do not interpret Mr Barrett’s comment as meaning that he would have inevitably have deteriorated regardless of the fall.
48 I am required to compare his condition prior to the accident of May 2006 and after it. I consider that the low-back symptoms suffered by Mr Grbic prior to May 2006 were relatively minor and intermittent. They did not cause him to miss work, notwithstanding the heavy nature of his duties. I accept Mr Grbic’s evidence that the nature of his symptoms of pain were far more substantial after the accident than before.
Consequences of Injury
49 Taking into account the evidence of Mr Grbic and the medical evidence tendered, I find that the consequences resulting from the May 2006 slipping incident are:
(a) He suffers from low-back pain that often extends down into his legs, especially the left leg. It is constant although it does vary in intensity. He often has to lie down;
(b) He requires strong analgesic medication, in Panadol Forte, which he takes, on average, weekly. He avoids taking it if he can because it results in gastric problems;
(c) He has been unable to continue in his trade as a boilermaker. I accept his Counsel’s submission that this is important. It was not merely a job but a trade. I accept that it was work that he thoroughly enjoyed. From the commencement of his apprenticeship, it was all he had ever done. Like many people, he had only ever wanted to work with tools. He is now restricted to performing office-type work which he does not enjoy. He does not like working in an office environment. In addition, he experiences back pain if he sits for too long. He has to get up and move around;
(d) He has only Year 11 education and no other qualifications save for those relating to boiler making. He is concerned that if he was to lose his current job he would find it difficult to find work. I accept that, although he is currently working full-time, the range of jobs available to him is substantially reduced. He is likely to find it more difficult to find work in the event that his current employment was to cease for any reason. Although in this application Mr Grbic does not seek to establish a current loss of earning capacity in the sense required by ss134AB(38)(e), (f) and (g), I consider that his vulnerability for employment and the reduction in the range and quality of work available to him is a substantial pain and suffering consequence of his injury;
(e) He is restricted in the tasks that he can perform in and around his home. Although he participated in the installation of some decking outside the home, I accept his evidence that most of the heavier work was performed by his father. His wife confirmed that he struggles with most domestic tasks;
(f) He has difficulty sleeping at night due to back pain. He wakes most nights with back pain;
(g) Prior to his accident, he played regular volleyball and social tennis. He has not been able to resume these activities because of back pain. He had ceased playing competitive soccer before the accident and it is unlikely that he would have resumed playing competitively again regardless of the accident. However, it is likely that he would have had the capacity to play socially with his children and he is unable to do so because of back pain;
(h) His sexual activity with his wife has suffered and become much less frequent.
50 Counsel for the defendant showed a DVD film of some 9 minutes’ duration taken of Mr Grbic in June 2011. He was not shown to be conducting any particular heavy activities. He drove a car for a short distance. He was capable of lifting his three-year-old child into the rear seat of the car. The film did not cause me to doubt the veracity of any part of Mr Grbic’s evidence as to the effects of the injury upon him.
51 I consider that prior to the May 2006 accident, Mr Grbic was living a relatively unrestricted lifestyle in terms of both employment and leisure and recreational activities. I consider that the consequences of the May 2006 accident were substantial, in that he is no longer able to pursue his trade, his position in the open labour market is extremely vulnerable, his domestic and recreational activities are much restricted and he suffers from constant and distressing pain.
52 I consider those consequences are, for Mr Grbic, fairly described as being more than significant or marked and at least very considerable.
Conclusion
53 For the reasons expressed above, I am satisfied that Mr Grbic has suffered a “serious injury”, as that term is defined in s134AB (37) of the Act and amplified by s134AB (38), in the course of his employment on or about 5 May 2006.
54 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act for Mr Grbic to bring proceedings for the recovery of pain and suffering damages in respect of injuries suffered by him in the course of his employment with the defendant on or about 5 May 2006.
55 I shall hear the parties in respect of costs.
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