Grech v Victorian WorkCover Authority
[2023] VCC 1897
•30 October 2023
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-00403
| JOHN GRECH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 17 October 2023 | |
DATE OF JUDGMENT: | 30 October 2023 | |
CASE MAY BE CITED AS: | Grech v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1897 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages - serious injury – injury to the low back – impairment of the spine – pain and suffering – credibility
Legislation Cited: Accident Compensation Act 1985 (Vic), s134AB(16), (19), (37), (38)
Cases Cited: Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Tatiara Meat Co Pty Ltd v Kelso (2010) VSCA 12; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: The plaintiff is granted leave to commence a proceeding for damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison KC with Ms S Fernando | Saines Lucas |
| For the Defendant | Mr P Scanlon KC with Mr S Martin | IDP Lawyers |
Table of Contents
Introduction
Legal principles
Background and medical history
Witnesses and evidence
Issues and submissions
Plaintiff’s submissions
Defendant’s submissions
Credit
Impairment consequences
Consequences of the injury
Pain
Medication and medical treatment
Work capacity
Sleep
Activities of daily living
Sports and hobbies
Travel
Psychological consequences
Analysis
Conclusion
HER HONOUR:
Introduction
1On 21 and 22 May 2014, the plaintiff suffered injury to his lumbar spine while performing duties while at work with Masters’ Home Improvement Australia Pty Ltd (“Masters”). The plaintiff claims to have suffered a serious injury as defined in paragraph (a) of the definition of “serious injury” in s134AB(37) of the Accident Compensation Act 1985 (“the Act”). Namely, a permanent serious impairment of his lumbar spine.
2At the hearing, the parties agreed, in accordance with the Certificate of Opinion of the Medical Panel dated 14 August 2023, that the plaintiff is suffering from persisting symptoms following a soft tissue injury of the lumbar spine sustained at work. Those symptoms are likely to last for the foreseeable future. The only issue in dispute was whether the consequences of the plaintiff’s injury meet the required threshold to constitute a “serious injury”.
Legal principles
3To succeed in this application, the plaintiff must satisfy the Court, on the balance of probabilities, he has sustained a “serious injury” within the meaning of the definition of “serious injury” in s134AB(37)(a) of the Accident Compensation Act 1985 (“the Act”). Namely, a permanent serious impairment or loss of a body function.
4For the purposes of assessment of “serious injury” in accordance with sub-ss(16) and (19) of s134AB, pursuant to s134AB(38)(b) of the Act, the term “serious” is to be satisfied by reference to the consequences to the worker of any impairment, loss of body function, disfigurement or mental or behavioural disturbance or disorder, as the case may be, with respect to pain and suffering or loss of earning capacity consequences when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.
5As stipulated in Humphries & Anor v Poljak,[1] the narrative test is to be applied when determining whether an injury can be deemed a serious injury. That is, there must be a subjective assessment of the consequences of the injury for the plaintiff. Then the consequences of the injury must be considered in comparison with other comparable cases to ascertain whether the injury can be described as at least “very considerable” and certainly more than “significant” or “marked”.[2]
[1] Humphries & Anor v Poljak [1992] 2 VR 129 (“Humphries”)
[2] Humphries at 140
6In making an assessment of the plaintiff’s “pain and suffering consequences” resulting from an injury, the Court is required to consider both the plaintiff’s experience of pain in addition to the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life.[3] It may be necessary to consider the intensity, frequency and duration of the plaintiff’s pain by reference to the plaintiff’s account of the pain, what he or she does about the pain (for example medication, rest, seeking medical treatment), the doctors’ stance on the extent and intensity of the plaintiff’s pain, and what the objective evidence indicates about the disabling effect of the pain.[4]
[3] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”)
[4] Haden (supra) at paragraphs [10]-[11]
7The extent to which pain derived from an injury impacts the plaintiff’s physical capabilities and enjoyment of life includes an assessment of the effect of pain on the plaintiff’s sleep; mobility; cognitive functioning; capacity for self-care and self-management; performance of household and family duties; recreational activities; social activities; sexual life, and enjoyment of life.[5] The disabling effects of pain may also be demonstrated by whether the plaintiff has resumed employment and, if so, what limitations there are on the plaintiff’s employment.[6]
[5] Haden (supra) at paragraph [16]
[6] Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26 at paragraph [63]
8The weight to be attached to the plaintiff’s account of pain will be determined by the Court’s assessment of the plaintiff’s credibility.[7] This assessment will depend on the plaintiff’s evidence and the views expressed by examining medical practitioners’ opinions about the reliability of the plaintiff’s accounts of pain.[8]
[7]Haden (supra) at paragraph [12], citing Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”) at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 (“Sejranovic”) at paragraph [171]); Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 (“Sabanovic”) at paragraphs [142]-[145]
[8] Haden (supra) at paragraph [12], citing Sabanovic (supra) at paragraph [142]
Background and medical history
9The plaintiff was born in May 1973 and is currently 50 years of age.
10He lives with his mother on her farm at Mt Cottrell which is about 15 to 20 minutes by car from Melton.
11He completed secondary school and holds certificates in the responsible serving of alcohol, retail operations, food and beverages, hospitality and fire training. He also holds a certificate as a real estate agent’s representative.
12Since leaving school he has worked in real estate, hospitality and retail.
13In late 2013, he commenced working with Masters Home Improvement Australia Pty Ltd (“Masters”), a business selling hardware and homewares, at its store in Williams Landing.
14On 21 May 2014, the plaintiff was stacking flatpacks of unassembled entertainment units or wardrobes from a wave machine onto shelving. This required the plaintiff to put the flatpacks on the tray of the wave machine, transfer the tray to the required shelf height and to then unpack the flatpacks. The flatpacks measured roughly one metre by about two metres and were heavy. To stack the flatpacks required the plaintiff to reach and slide the flatpacks into position on the shelving. A lot of the work was performed overhead. As the plaintiff performed this work he began to experience back soreness.
15The following day, 22 May 2014, the plaintiff had to separate stacks of laundry tubs which were stuck together and were difficult to separate. He was required to bend over and use a lot of force to separate the tubs. He was doing this work for about an hour when his back pain got a lot worse, and he had to stop. He reported the problem to his employer and a manager drove him to a doctor in Point Cook where he received an injection into his back.
16The plaintiff was off work for about two months before resuming light duties for four-hour shifts, five days a week.
17The plaintiff ceased working with Masters in late September 2015. He has not worked since and has not looked for work, nor undergone retraining.
18In about 2016, the plaintiff became an official carer for his father and since that time has received a carer’s pension.
19The plaintiff also assists his mother who has some health issues including chronic lung disease.
20Following his back injury, the plaintiff underwent treatment for his injury including attendances as required on his general practitioner at the Scott Street Medical Centre. Additionally, he has undergone various radiological scans, physiotherapy and acupuncture. He also had an injection into his back. He has used heat packs, painkillers and anti-inflammatory medication.
Witnesses and evidence
21At the hearing, the plaintiff gave evidence and was cross-examined.
22Various documents were tendered on behalf of the plaintiff from the Amended Plaintiff’s Court Book[9] dated 3 October 2023. These included an affidavit affirmed by the plaintiff on 9 March 2021; a report of Mr Roy Carey, consultant orthopaedic spine surgeon dated 12 February 2020; reports from Dr David Kennedy, sports and industrial physician dated 11 July 2019 and 6 October 2020; a report of Dr Peter Blombery, consultant physician (vascular disease and pain medicine) dated 12 January 2023; a Notice of Intention to request that a Medical Question be referred to a Medical Panel dated 21 March 2022 and Medical Panel Opinion and Reasons dated 14 August 2023.
[9] Amended Plaintiff’s Court Book (“APCB”)
23The defendant tendered a report from Mr Michael Bloom, occupational and environmental physician, dated 2 May 2022 and a report from Dr Reza Sabetghadam, occupational physician, dated 23 February 2023.
24The defendant also made an admission that: on 15 March 2022, the plaintiff was under surveillance for a period of approximately five hours and during this time he was not observed; on 22 March 2022 the plaintiff was under surveillance for a period of five hours and during this time he was not observed; on 28 March 2022 the plaintiff was under surveillance for a period of five hours and during this time was not observed; on 9 May 2022, the plaintiff was under surveillance for a period of five hours and during that period the plaintiff was observed for a very short period, approximately 10 to 15 seconds; on 11 May 2022, the plaintiff was under surveillance for a period of five hours and during this time he was not observed; on 12 May 2022 the plaintiff was under surveillance for a period of five hours and during that time he was not observed.
Issues and submissions
Plaintiff’s submissions
25It was submitted on behalf of the plaintiff that he had suffered a compensable injury which was permanent. The claimed impairment consequences included constant low back pain; disrupted sleep, loss of his employment at Masters; a range of sporting and leisure activities such as regular visits to the gym, swimming, cycling, dancing, jogging and going on walks; an impact of his activities of daily living including his ability to do his own chores and to clean, and an impact on his temperament. It was submitted the impairment consequences exceeded the required threshold to establish a “serious injury”.
26It was further submitted that nothing adverse to the plaintiff could be drawn from the fact he had not tendered an up-to-date medical report from his general practitioner. It was evident the plaintiff continued to consult his general practitioner; up-to-date medical reports are not always tendered, and in any event, the defendant had obtained the general practitioner’s notes and had chosen not to cross-examine about, or rely upon, them.
27Further, it was submitted, the fact the plaintiff said he experiences pain and takes medication for his right wrist condition, does not preclude him from also suffering a serious injury as a result of impairment of his lumbar spine; particularly when such pain had been recognised by Dr Kennedy and Dr Blombery. Similarly, the fact the plaintiff was found by the Medical Panel to have a work capacity, or the fact he is able to travel, does not mean the plaintiff cannot also have a serious injury.
28Ultimately, the plaintiff’s submission was that whether the plaintiff has a “serious injury” comes down to an assessment of the plaintiff’s veracity. He was a truthful witness and, if that is accepted, he is entitled to succeed in his application.
Defendant’s submissions
29The defendant accepted the plaintiff has suffered a compensable injury which is permanent. However, it was submitted that when the impairment consequences of the plaintiff’s low back injury are considered in light of the range of possible injuries, they do not meet the level required for a “serious injury”. They are not at least “very considerable” or certainly more than “significant” or “marked”.[10] At best the plaintiff has mild to moderate impairment consequences.
[10] Humphries at 140
30It was submitted that the plaintiff’s injury is a soft tissue injury. The injury has required minimal treatment. It is not an operated spinal condition or a condition in respect of which the plaintiff has been required to undergo multiple injections. There has been no referral, or a request for a referral, to an orthopaedic surgeon for a surgical opinion. Further, there is a lack of medical evidence from the plaintiff’s general practitioner or his physiotherapist supportive of an ongoing “serious injury”.
31The plaintiff’s treatment comprises consulting his general practitioner and limited physiotherapy sessions (there have been up to four physiotherapy attendances only per year over the past four years).
32He takes prescription medication, but that is taken not just for his low back pain. He also has a right wrist condition for which he is prescribed medication, and his right wrist condition affects him to a significant degree in terms of pain.
33The plaintiff has been left with good function of his low back, as was apparent from the Medical Panel Opinion which found the plaintiff could work on a fulltime basis without restrictions in a range of jobs into the foreseeable future. Since 2016, he has been providing largely unrestricted care to both parents. He lives on a 27-acre farm with his mother and assists her to look after the horses. He is able to climb up a ladder. He is able to assist his mother to get to medical appointments, and at home. He is able to drive to his father who lives 35 minutes away. He is able to provide the same type of assistance to his father as he provides to his mother. He is really helping them as opposed to the other way around. The defendant submitted that the real reason the plaintiff has not returned to any form of employment is because he is caring for his parents, not because of his low back injury.
34Further, if there has been an impact of the plaintiff’s functional ability, that has been affected to some extent by the plaintiff’s right wrist injury.
35Additionally, the plaintiff is able to travel, and has travelled to Malta three times since his injury, for a period of six to seven weeks on each occasion.
36He remains able to go for walks for up to an hour.
37Further, there is a lack of lay evidence supportive of the plaintiff’s claim to have suffered a “serious injury”. The two people best placed to provide evidence, the plaintiff’s parents, provided no evidence about how the plaintiff’s injury to his spine affects him. Similarly, the plaintiff’s own affidavit was sworn over two years ago on 9 March 2021, and does not provide sufficient detail to properly assess the nature and extent of the plaintiff’s impairment consequences.
38Each of these matters, it was submitted, tends to the ultimate conclusion that when the plaintiff’s impairment consequences are considered in light of the range of possible injuries, they fall at the mild end of the spectrum at best. He has not suffered a “serious injury”.
Credit
39The plaintiff presented as an honest witness who did his best to answer questions. He explained the nature of his low back condition and its consequences, and made appropriate concessions.
40More than that, he seemed to have got on with his life in a commendable way.
41I find that he was an honest and truthful witness.
Impairment consequences
Consequences of the injury
Pain
42In his affidavit, the plaintiff claimed his pain was constant. It was worse sometimes more than others. It was affected by activities such as bending, twisting the spine, sitting or standing for a long time, repeated or heavy lifting, walking distances (especially over rough or uneven surfaces), climbing stairs and exposure of the plaintiff’s back to jolting, jarring, vibration or cold.
43In relation to the pain the plaintiff experienced, Dr Kennedy assessed the plaintiff on 28 July 2019 and provided a report dated 11 July 2019. In his report he noted the plaintiff’s complaints and capabilities at that time, which included constant left-sided low back pain radiating up into the mid-back with a muscle pulling sensation which could be quite severe in nature; occasional radiating pain with some pins and needles down the front of the thighs and legs; restricted sitting and standing tolerances; problems bending, twisting or turning under any load or stress; pain down the outer side of the right elbow into the upper forearm; restricted gripping and grasping in his right hand; depression and anxiety brought on by the pain; restricted physical capacities; and low back pain associated with leaning forward.
44Dr Kennedy assessed the plaintiff as exhibiting tightness and tenderness over the erector spinae and paravertebral musculature, worse on the left side, extending from the lumbar region up into the thoracic region. There was also tenderness of the posterior facet joints in the lower thoracic and lumbar region on the left side. The plaintiff demonstrated reduced movements of lateral flexion and lateral rotation to the left as well as flexion and extension with pain and muscle spasm.
45The plaintiff’s straight leg raising test was tight on the left side but there was a negative stretch and slump test.
46Examination of the plaintiff’s right elbow joint revealed tenderness over the lateral epicondyle and common extensor origin, extending into the common extensor musculature of the upper outer forearm. Full range of movement of the elbow joint, the proximal radioulnar joint and the wrist joint was observed. There was pain in the common extensor musculature on the resisted extension of the hand and fingers at the wrist joint and the metacarpophalangeal joints.
47Dr Kennedy considered a two-region, spine x-ray of the plaintiff taken 27 May 2014. He diagnosed a mild scoliosis convexed to the right, likely to be related to muscle spasm in the thoracic spine. Some early spondylitic change was observed at the level of T12-L1, with slight anterior disc narrowing and anterior osteophytosis. The lumbar spine showed slight scoliosis convexed to the left which was maximal at L3. There appeared to be a 5 per cent loss of height in the vertebral body of T12 with osteophytosis; however, that may have reflected an older injury. The vertebral disc spaces and appendages of the lumbar spine and the SI joints were normal.
48Dr Kennedy also considered an MRI scan of the thoracolumbar spine of the plaintiff taken on 15 September 2014. He opined that the overall appearance of the plaintiff’s thoracolumbar spine was within normal limits for his age, with some minor lower thoracic disc degenerative change noted. There was no focal disc protrusion or neurological compromise identified, and the individual nerve roots appeared to exit without impediment.
49Dr Kennedy opined that the injuries to the plaintiff’s thoracolumbar spine involve the myofascial structures in the thoracolumbar region, with what appears to be significant aggravation and acceleration of pre-existing but asymptomatic degenerative changes in the thoracolumbar spine.
50He considered the plaintiff’s restrictions regarding his physical, occupational, domestic, social and recreational capacities would continue for the foreseeable future.
51He recommended the plaintiff engage in a core stretching and strengthening exercise program for his thoracolumbar spine and right elbow, in conjunction with an appropriate pain management plan. He also suggested the plaintiff could benefit from a corticosteroid injection and a long-acting local anaesthetic into the lateral epicondylar region and the common extensor origin of his right elbow joint.
52Dr Kennedy reassessed the plaintiff on 29 September 2020 and provided a second report dated 6 October 2020.
53He reported the plaintiff’s progress history including persistent lower back pain which could spike to up to a 9-10/10 when he was active with muscle spasms. When his right upper limb was involved in activity or was under load or stress, the pain in his right elbow could spike to 8/10.
54Dr Kennedy further noted the plaintiff was restricted in his standing and sitting tolerances for any length of time, and he was forced to constantly move around to avoid stress building up in his back. He also encountered weakness in his mid to lower back which restricted his ability to bend, twist, turn or lean forward.
55At trial, the plaintiff was cross-examined about the pain he experiences from his tennis elbow and the history he gave of that condition when he was seen by Dr Kennedy on 29 September 2020, as noted by Dr Kennedy in his report dated 6 October 2020. The plaintiff said the pain from his elbow extends into his forearm. He said when he was asked about that by Dr Kennedy, he gave a history of elbow pain of 8/10. He also agreed that it remains the case that he has a pain condition for his elbow and that he is required to take medication for both his elbow and his back.
56Dr Peter Blombery provided a report dated 12 January 2023. In his report he opined that the plaintiff was injured in May 2014, and subsequently developed pain in his lower back area that had been ongoing since that time. Dr Blombery considered the plaintiff had developed a pain syndrome in his low back because of the process of central sensitisation. He recommended that the plaintiff attend a pain management clinic and undergo a trial of medications.
57The plaintiff was subsequently examined by Dr Sabetghadam, on 20 February 2023. In his report dated 23 February 2023, Dr Sabetghadam records that the plaintiff has an aching-type pain and soreness on the left side of his spine, which occasionally worsens. Sometimes he feels pins and needles in the bottom of his left foot which lasts for five minutes before going away. This can happen once a day and occasionally occurs while he is sitting. He occasionally experiences soreness in both legs, but it is not a sharp or shooting pain. The plaintiff reported that he experiences pain if he vacuums or mops. He also experiences pain when sitting and sometimes when walking. Lifting, pulling or pushing heavy objects also cause back pain.
58Dr Sabetghadam disagreed with Dr Blombery that the plaintiff had developed a pain syndrome. He considered the plaintiff’s pain symptoms to be temporary and subjective. He suggested that the plaintiff’s pain and disability perception were influenced by psychosocial reinforcers, such as perceived poor organisational support and unfair management of his WorkCover claim. He also suggested the plaintiff had elements of voluntary or involuntary exaggeration of his symptoms and psychosomatic factors. He did not consider the plaintiff suffered from an impairment.
59Although the defendant suggested that a significant degree of the plaintiff’s pain emanated from his elbow or right wrist injury, in my view, a fair reading of the evidence also establishes that the plaintiff experiences pain from his low back. Having considered the various opinions as to the pain the plaintiff experiences, on balance I prefer the opinion of Dr Blombery who is the expert with the most experience in pain medicine. Dr Sabetghadam disagreed with Dr Blombery’s opinion, but Dr Sabetghadam is an occupational physician rather than a pain expert.
60I accept that the plaintiff developed pain in his lower back area that had been ongoing since he was injured in May 2014. He has subsequently developed a pain syndrome in his low back because of the process of central sensitisation.
Medication and medical treatment
61In his affidavit the plaintiff said he was previously taking Brufen, Celaxib and Nurofen Plus daily and was also using Voltaren gel. At the date of the hearing, he said he was taking Nurofen Plus, Amitriptyline and Valium. He also said he continues to access the five physiotherapy treatments per year that he is entitled to under Medicare.
62Dr Kennedy, in his report dated 6 October 2020, noted the plaintiff reported receiving further treatment since his previous examination including physiotherapy for his back and right elbow. He was also prescribed a brace to wear for his right elbow. His prescription medication included Brufen, Voltaren and analgesics, Nurofen and anti-inflammatory gel and cream including Voltaren Rapid.
63The plaintiff was cross-examined about his medical treatment. First, it was put to him he had not been referred by his general practitioner to any surgeon or orthopaedic surgeon for surgical or other treatment. Nor had he requested to see a surgeon. The plaintiff said he had been to his doctors and had undergone scans. He had also received physiotherapy treatment but, without attempting to bypass the question, he agreed he had not been referred by his general practitioner to any surgeon or orthopaedic surgeon for surgical or other treatment, and he had also not requested to see a surgeon.
64Next, the plaintiff was asked about a consultation he had with Mr Carey in February 2020. It was suggested to the plaintiff that Mr Carey had taken a history from him of seeing a physiotherapist every fortnight for six years since the injury including having undergone manual treatments, acupuncture and taping. It was suggested to the plaintiff that it was therefore not correct that he had been seeing a physiotherapist every fortnight for six years.
65The plaintiff said he had been seeing a physiotherapist since his accident but agreed that he had not been seeing a physiotherapist every fortnight. He said he sometimes saw a physiotherapist and sometimes did not.
66The number of physiotherapy sessions he had participated in from 2019 to 2022 was put to the plaintiff. These included four attendances in 2019, no attendances in 2020, three attendances in 2021, and one attendance in 2022. The plaintiff was not sure if the number of attendances was accurate, and also said that he had some private attendances, but agreed that if those were the recorded attendances, they reflected up to four sessions a year and were reflective of his treatment now.
67Having considered all the evidence, I accept that the plaintiff is currently taking prescription medications Nurofen Plus, Amitriptyline and Valium.
68I accept he sees his general practitioner.
69I further accept he has not been referred to a surgeon for any surgical or other treatment.
70He has received some physiotherapy treatment since his injury. It may be that in the period after his injury, he attended physiotherapy more regularly than he does now. However, over time, I find the physiotherapy he is undertaking now is no more than five sessions a year, as permitted by Medicare.
Work capacity
71The plaintiff said in his affidavit, that he had previously enjoyed his job at Masters before he was injured and had planned to stay with Masters indefinitely. However, the injury had prevented him from returning to his normal duties.
72From the plaintiff’s affidavit it is apparent he returned to his role at Masters following his injury. He said he resumed light duties five days a week for four-hour shifts. That arrangement continued until the plaintiff was demoted, following which he received only four more shifts before the work dried up. The plaintiff does not say in his affidavit that his work at Masters ceased because he was unable to perform the tasks required of him due to his back injury. For that reason, I find that the loss of the plaintiff’s role at Masters was not a consequence of the plaintiff’s low back injury, but rather a consequence of his demotion and eventual lack of work.
73To the extent the plaintiff has not worked since, and has not looked for work, it was suggested to him in cross-examination that, as the Medical Panel found, he had capacity to work in an unrestricted way performing fulltime duties, but the real reason he had not returned to work was not due to his low back injury, but rather was because he was now performing duties as a carer for both his parents.
74In his affidavit, the plaintiff said that since about 2016 he has been a carer for his father and has received a carer’s pension. In cross-examination, the plaintiff was asked whether he was also a carer for his mother. He was taken to a consultation he had with Dr Sabetghadam, occupational physician, on 20 February 2023. He was asked whether, during that consultation, he had told Dr Sabetghadam that he was “[t]he carer for your mother, who is disabled and suffers from medical conditions; she has mobility issues?” He said, “No, that’s not right”. He said he did not tell Dr Sabetghadam he was his mother’s carer, although he said his mother does have Sarcoidosis, a lung condition which causes fatigue. Consequently, he said he provides her with assistance. I accept that the plaintiff was not an official carer for his mother. However, in practical terms he was providing assistance to both his parents with their activities of daily living demonstrating he had retained some functional ability.
75Having considered all of the evidence, including the cross-examination and the Medical Panel Opinion, I find the reason the plaintiff has not looked for, or returned to, work was because he has been acting as a carer for his father and providing personal and domestic assistance to his mother. It is not because of his low back injury.
Sleep
76In his affidavit the plaintiff said that his low back injury has disrupted his sleep. He said it is difficult to get to sleep. When he does fall asleep, back pain wakes him and keeps him awake. He generally feels tired and lacking in energy. The plaintiff said he did not feel that way before he was injured.
77When seen by Dr Sabetghadam on 20 February 2023, the plaintiff recounted that he had trouble sleeping; he wakes multiple times and is unable to find a comfortable position.
78In his report dated 11 July 2019, Dr Kennedy also noted the plaintiff experienced difficulty getting to sleep and staying asleep.
79On the basis of all the evidence, I accept that the plaintiff experiences disruption to his sleep. He has difficulty getting to sleep and when he does fall asleep, back pain wakes him. He is generally tired and lacks energy.
Activities of daily living
80Before he was injured, the plaintiff said he led a reasonably active social life and did his own chores. Now he said he relies on his mother to assist with those chores which have become difficult for him because of his back condition. He gave the example of previously being a “clean ‘freak”,[11] where now his ability to do cleaning chores is restricted.
[11] APCB 14 at paragraph [17]
81Dr Kennedy identified in his report dated 6 October 2020, that the plaintiff avoided heavier activities when caring for his father and avoided manual handling and lifting or carrying. He also reported that the plaintiff’s right hand was restricted with reaching or stretching, performing repetitive gripping activities, and he could not use his right arm to carry objects like a kettle weighing more than a few kilograms. There was tenderness over the outer aspect of the elbow joint around the lateral epicondyle and common extensor origin which feels bruised when extending into the upper aspect of the common extensor musculature. Flexion and extension caused pain up the forearm around the posterolateral aspect of the forearm to the lateral aspect of the elbow region.
82Dr Michael Bloom recorded in his report dated 2 May 2022, that:
“he is fully independent in his personal care activities and does drive his car, saying that he is comfortable to drive for up to 30 minutes at a time before needing to stop for a change in posture. He estimates his sitting tolerance to be about 20 minutes although this ‘depends on the day’, his standing tolerance to be 10-15 minutes provided that this is dynamic, and his walking tolerance to be between 10 and 15 minutes. He said that he is able to squat and kneel and to negotiate steps and stairs slowly. He initially said that he would not be able to use a ladder, but then acknowledged that about a month ago he checked the gutters by climbing a ladder. He estimates his lifting and carrying capacity to be no more than about 1kg-2kg.”
83The plaintiff was cross-examined about the type of assistance he provides to his parents. With respect to his mother, he agreed that they live on a 27-acre farm. The farm has horses. There is a lot of grass for the horses to eat, but he and his mother feed the horses from time to time. He mows the lawn with a ride on mower. He picks up fallen branches at the property. He provides assistance sometimes to his mother with shopping, general cooking and cleaning. He helps her with hanging out the washing. He also sometimes drives his mother to her medical appointments in Melton, about 15 to 20 minutes from their home. He disagreed that he cleans the gutters and said he usually gets the hose for that task.
84The plaintiff said in relation to the care he provides for his father, that he drives to see his father on a regular basis. That is a drive of 30 to 35 minutes. His father is in poor health with chronic obstructive airway disease and some cardiac conditions. He needs more assistance than his mother. The plaintiff said he assisted his father with taking him to the doctor; helping with his father’s shopping and taking him out to eat. He did not agree when cross-examined, that he assisted his father with cleaning or with cooking, as the Medical Panel Opinion had suggested.
85In cross-examination, the plaintiff was also asked about the history he gave to Dr Bloom, and it was suggested to the plaintiff that he had told Dr Bloom that:
“he’s fully independent in his personal care activities and does drive his car, saying that he’s comfortable to drive up to 30 minutes at a time before needing to stop for a change in posture.”[12]
[12] Transcript (“T”) 9, Lines (“L”) 3-7
86And further:
“He’s able to squat and kneel and to negotiate steps and stairs slowly.”[13]
[13] T9, L8-9
87It was further contended that Dr Bloom had recorded a history that:
“He said that he would not be able to use a ladder, but then acknowledged that a month ago, he checked the gutters by climbing a ladder.”[14]
[14] T9, L23-25
88Further, that Dr Bloom had noted the plaintiff’s:
“lifting and carrying capacity to be no more than about 1kg-2kg.”[15]
[15] T9, L31 to T10, L1
89The plaintiff said he cannot squat and gets back pain when he does, but he agreed he can negotiate steps slowly. He could not recall whether he told Dr Bloom the other matters, but accepted that if Dr Bloom had recorded that history, it was likely to be the fact that the plaintiff had provided it to him. He added that while it is likely he can do the things Dr Bloom recorded, when he does them, he then suffers pain.
90The plaintiff agreed he had checked the gutters by climbing a ladder and accepted he is able to lift more than 1 to 2 kilograms. He also accepted that the issues he experienced with gripping, stretching and lifting more than a few kilograms were due to his right wrist injury.
91Having considered the plaintiff’s answers, I did not form the view they adversely impacted on his credit. He endeavoured to answer questions honestly and what Dr Bloom recorded was generally consistent with the plaintiff’s evidence. To the extent that there was a discrepancy in his evidence with respect to the cleaning of the gutters, nothing turns on this. The overall tenor of the plaintiff’s evidence was that he generally does not clean the gutters, and instead uses a hose. However, to his credit, he quite properly acknowledged that notwithstanding this, there was an occasion where he climbed a ladder and checked the gutters.
92Having considered the evidence overall, I accept that the plaintiff experiences some limitations in his daily activities. He avoids heavier activities when caring for his parents and does not assist them with heavier cooking and cleaning activities. He has some restrictions in movement, but it was unclear how those impact his day-to-day activities.
93Notwithstanding the limitations the plaintiff experiences, I do not consider his restrictions to be as disabling as he claims. The cross-examination revealed that the plaintiff can still perform a range of daily activities. Further, the lack of detail in the plaintiff’s affidavit about what precisely he is unable to do because of his low back injury tends against the conclusion that any limitations on his functional ability are significant. These matters suggest the plaintiff has retained at least a moderate, and perhaps even a high, degree of functional ability. It also means that I am not satisfied that performance of his day-to-day activities has been impacted to any significant extent.
94Based on all the evidence, I find that because of the plaintiff’s low back injury, there has been, at most, a mild impact on the plaintiff’s activities of daily living.
Sports and hobbies
95Before he was injured, the plaintiff said in his affidavit he had previously enjoyed activities outside work including regular visits to the gym, swimming, cycling, dancing, jogging and going on walks. He said that since the injury he is a lot less physically active. This has impacted his fitness and affects his ability to swim, do gym exercises, go cycling or dancing and to jog or go on long walks.
96Other than to say that the plaintiff is a lot less physically active and that his leisure activities have been impacted, the plaintiff’s affidavit did not go into any detail about how and to what extent the plaintiff’s pre-injury sporting pursuits and hobbies had been affected. It is consequently difficult, based on the plaintiff’s affidavit material alone, to be satisfied that those activities have been adversely impacted to any significant extent.
97In his report dated 11 July 2019, Dr Kennedy noted the plaintiff had restrictions washing the car, going to the gym, jogging, and performing strenuous domestic duties. He also noted an inability to dance, ride horses or do some activities around the property.
98In cross-examination the plaintiff was asked about his enjoyment of walking. He agreed that walking was something he liked doing. It was suggested to the plaintiff he could walk for up to an hour. He accepted that he had told panel members of the second Medical Panel that he can walk for an hour, but he explained he had also said that after an hour he then experiences back pain.
99In assessing the impact of the plaintiff’s injury on his enjoyment of sports and leisure activities, I have considered on the one hand, that the report to Dr Kennedy by the plaintiff was provided several years ago. It suggested that there had been some impact on the plaintiff’s enjoyment of his pre-injury sports and leisure activities. On the other hand, the matters about which the plaintiff was cross-examined, notably his ability to enjoy walks up to an hour, suggested that any impact on the plaintiff has been mild.
100It is for the plaintiff to satisfy me of the consequences of his injury. Given the state of the evidence, I have formed the view that there has been some impact on the plaintiff’s sports and leisure activities but, in my view, he has maintained a reasonable level of functioning. I find any impact on the plaintiff’s sports and leisure activities has been mild.
Travel
101In cross-examination, the plaintiff was asked about his recent trip to Malta. The plaintiff explained that he had travelled to Malta to see his 96-year-old grandmother who was unwell. He accepted he had previously travelled to Malta in 2018 and in 2019. Each trip was for six to seven weeks duration. The plaintiff accepted the plane trip was “fairly long” and he was able to manage that. He also accepted that when he was in Malta he engaged in socialising with his family.
102I find that there has been no impact on the plaintiff’s ability to travel as a result of his low back injury.
Psychological consequences
103The plaintiff said in his affidavit that his low back injury has affected his temperament and has made him less tolerant. He often feels frustrated by the limitations caused by his back condition. He has lost self-esteem and confidence.
104Those can be natural reactions to any injury. However, because in accordance with s134AB(38)(h) of the Act, the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise, I do not take them into account in assessing whether the plaintiff has suffered a “serious injury” in this instance.
Analysis
105In Haden,[16] the Court of Appeal identified that in assessing pain and suffering consequences, it is necessary to consider the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life.[17] To do that, it is helpful to evaluate the intensity of the plaintiff’s pain, together with the frequency and duration of the episodes of pain.
[16] Haden (supra)
[17] Haden (supra) at paragraph [9] (per Maxwell P)
106In Haden, the plaintiff experienced constant pain every day. The pain was with him when he woke in the morning and got progressively worse during the day. It interfered with his work and his sleep. He took Panadol and the prescription medication, Panadeine Forte, to alleviate his pain. He was still able to engage in his main interests of watching horse racing, cricket and football and in that sense had suffered only a limited loss of amenity.
107Similarly in this case, although it was submitted the plaintiff experienced a high degree of pain as a result of his right wrist injury, I accept that he also experiences substantial pain in his lower back area that had been ongoing since he was injured in May 2014. He has developed a pain syndrome in his low back because of the process of central sensitisation. He experiences the pain as a constant left-sided low back pain radiating up into the mid-back. It is an aching-type pain with a muscle pulling sensation which can be quite severe in nature. There is occasional radiating pain with some pins and needles down the front of the thighs and legs and into the bottom of the foot. Sometimes this involves both legs. The pain can be experienced as muscle spasms. The intensity of the pain fluctuates, but it can become quite severe; sometimes reaching an intensity described by the plaintiff as being 9-10/10.
108The plaintiff is currently taking prescription and other medications including Nurofen Plus Amitriptyline and Valium to alleviate his pain. He has not been referred to a surgeon for any surgical or other treatment but continues to see his general practitioner and to undertake up to five physiotherapy sessions a year.
109The plaintiff’s pain impacts his sleep. He experiences difficulty getting to sleep and, when he does fall asleep, back pain wakes him and his sleep is disrupted. He is generally tired and lacks energy.
110Like in Haden, the plaintiff’s loss of enjoyment of his sports and leisure activities and his ability to perform activities of daily living, I have found to be minimal. There has nevertheless been some impact.
111In Tatiara Meat Co Pty Ltd v Kelso,[18] the Court of Appeal said:
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence … .”
[18]Tatiara Meat Co Pty Ltd v Kelso (2010) VSCA 12 at paragraph [73] citing Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at paragraph [199]
112Further, as the Court of Appeal noted in Haden, it is:
“a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”[19]
[19] Haden at paragraph [45]
113Ultimately, the question of whether pain and suffering consequences are sufficient to satisfy the test for a “serious injury” is, as Nettle JA said in Haden:
“a question of fact, degree and value judgment in the determination of which comparisons with other cases and checklists of relevant considerations are at best of limited utility.”[20]
[20] Haden (supra) at paragraph [51]
114I have considered objective matters of fact about the plaintiff’s pain, as well as the plaintiff’s own account of its disabling effects. As I have indicated, I have found no reason to doubt the plaintiff’s credibility. I accept his evidence as to the pain he is suffering, the prescription medication he is required to take to alleviate the pain, and the impact the pain is having on his ability to sleep. I also accept that there has been some minor impact on his day-to-day domestic and leisure activities.
115Having considered the plaintiff’s injury and compared his impairment not just with other low back injuries, but also with other types of physical impairment, I have formed the view that when the plaintiff’s impairment consequences are considered in comparison with the range of possible impairments or loss of body functions, they are at least “very considerable” and certainly more than “significant” or “marked”.
Conclusion
116I am satisfied the plaintiff has suffered a “serious injury” and I grant the plaintiff leave to commence proceedings for damages.
117I will hear argument with respect to costs.
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