Grinter, Glen Victor v Tatura Milk Industries Pty Ltd
[2009] VCC 942
•19 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BENDIGO
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-04101
| GLEN VICTOR GRINTER | Plaintiff |
| v | |
| TATURA MILK INDUSTRIES PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 4, 5, 6 & 7 May 2009 |
| DATE OF JUDGMENT: | 19 May 2009 |
| CASE MAY BE CITED AS: | Grinter, Glen Victor v Tatura Milk Industries Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0942 |
REASONS FOR JUDGMENT
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Catchwords: Serious Injury Application; s.134AB Accident Compensation Act 1985; claim for pain and suffering and loss of earnings; claim under paragraph (a) for injury to back; co- existing psychiatric condition; whether back injury a material cause of incapacity for work; whether permanent loss of earning capacity of at least 40 per cent.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin SC with | Arnold Dallas McPherson |
| Mr D. Purcell | ||
| For the Defendant | Mr R. Middleton SC with | Hall & Willcox |
| Ms S. Manova | ||
| HER HONOUR: |
1 Mr Glen Grinter applies for leave to bring a claim for damages against his former employer in respect of injury to his lower back suffered during his employment with it. He must establish that he suffered a “serious injury” within the meaning of s.134AB of the Accident Compensation Act 1985 (“the Act”). He relies on part (a) of the definition, claiming to have suffered permanent serious impairment of the function of his lower back. He seeks leave to claim damages in respect of both pain and suffering and loss of earning capacity.
2 Mr Grinter was employed by the defendant as a labourer from August 2001, and on 14 February 2002 reported severe pain in his back from lifting duties. He consulted a doctor and was certified unfit for work for the next two to three weeks. He resumed work, ostensibly on light duties but was soon back on full duties. He continued working for the defendant at heavy lifting duties, interrupted by some months of incapacity due to a psychological condition, then some short periods of a week or so due to back pain, each time returning to heavy duties until in about November 2004 he was moved to what were called “administrative duties” in the warehouse. He continued in these until a year of incapacity for work from September 2006 to September 2007. He then returned to the warehouse duties but with increasing tension between him and other employees, until his employment was terminated in May 2008. He has not worked at paid employment since.
3 Since mid-2003 he has owned a farm at Stanhope of approximately 100 hectares, running cattle and living there until the house burnt down last September. Currently he lives in a rented house nearby, with plans to rebuild a house on the farm, and has about 60 head of cattle but on agistment due to drought.
4 The defendants do not dispute that the plaintiff suffered an injury to his back in February 2002 in the course of his employment, but contends:
(a)
that the pain and suffering consequences of that injury do not meet the test for “serious injury” of being fairly described as “more than significant or marked” and “at least very considerable” when judged by comparison with other cases in the range of possible impairments of a body function[1];
(b) the plaintiff retains a capacity for suitable employment; (c)
the plaintiff has not discharged his onus of proving any inability to be retrained or rehabilitated for suitable employment[2];
(d)
if the plaintiff does have any loss of earning capacity then it does not reach a loss of 40 per cent or more required to be determined under s.134AB(38)(e)(i) and (f);
(e)
the plaintiff has failed to “disentangle” the consequences of his physical injury from his psychiatric condition.
[1] s.134AB(38)(c)
[2] s.134AB(19)(b)
5 The plaintiff and his treating general practitioner, Dr Tisdall, gave oral evidence, having been required for cross-examination. The other evidence consisted of documents set out in the attached Schedule.
6 My assessment of the plaintiff as a witness was that he is an intense man, not unintelligent despite leaving school quite early, who was genuinely in pain during periods of the hearing. He displayed some resentment and antagonism during cross-examination, sometimes pausing to assess the question and sometimes answering in a rather aggressive outburst. Having read his psychiatrist’s reports it may well be that his personality and psychiatric condition were responsible for his manner. However, my impression was that he was not deliberately lying or prevaricating, and overall I have accepted his evidence as truthful.
7 Dr Tisdall did not present as having a comprehensive knowledge of his file on this patient, and was inclined to answer questions from an imperfect memory rather than consult that file. I take into account that it is always difficult to expect a general practitioner in sole practice to come to court (in this case having to travel from Shepparton as the defendants wanted him present with his file and not on video-link) and to be cross-examined in detail about a long- standing patient of whom the doctor has an overview because of the duration and course of treatment. The defendants point to two letters on his file[3] as being a sign that he would alter his views to support his patient. I did not find either letter at all inconsistent with the doctor’s opinion on this patient’s overall condition.
[3] Exhibit 4- letter as to suitability to hold firearms licence, and letter after his house burnt down supporting transfer of his girlfriend to the area.
Findings as to plaintiff’s background
8 Mr Grinter was born on 12 June 1976 and is now aged thirty-two. He was raised on a family farm at Stanhope, left school before completing Year 11, and completed an apprenticeship as a roof tiler. He subsequently worked as a labourer and boner in an abattoir for a number of years, and then in August 2001 obtained employment with the first defendant. He was employed as a labourer in its milk production factory, commencing on eight hour shifts, five days per week, but then the factory’s schedule changed to 12 hour shifts, four days on/four days off.
9 He lived in Tongala with his wife, was a keen water-skier and motor bike rider, and generally enjoyed outdoor activities. In the 2001 tax year[4] he had commenced some livestock farming on a 28 acre property he then owned.
[4] Exhibit 13 – 2001 tax return
10 The defendant argues that he had a pre-existing degenerative spine which was already symptomatic prior to February 2002, and that this condition was only temporarily aggravated by his lifting duties with it. The defendant had inspected the records of a Shepparton chiropractic clinic where Mr Grinter acknowledged he had previously attended for treatment. He said and I accept that he could not remember the dates or details. He said that although he could not recall it he accepted as true what was read out to him of an attendance on 23 December 1998 at which it is recorded he gave a history of low back pain for six months. He made the same response to the suggestion that he returned on 5 January 1999. He agreed he attended that clinic in respect of an elbow injury. There were put to him two attendances in October 2000, but the reason could not be read, and one for his back in January 2001 and one in January 2002. The history he gave to doctors was of no previous back injury or similar symptoms.
11 In my view this material does not undermine the credibility of the plaintiff as a witness, nor the soundness of doctors’ opinions based on his histories to them. He was a man who had worked in successive heavy labouring jobs since leaving school, and it would be astonishing if he had never had any aches or pains in his back. I accept his evidence that he had not told doctors of prior back injury because he did not recall or associate those intermittent past visits to a chiropractor as back pain of significance. I accept his evidence that he had not previously lost any time from work due to back pain or problems. He describes the back pain he felt from 14 February 2002 as of a different type, and that is consistent with his seeking out of a doctor with some urgency – attending Dr Griss who could see him that day when his usual GP could not - and going directly to a doctor rather than a chiropractor. It is also consistent with his account to doctors that he felt back pain coming on or “niggling” during his employment in the weeks before he felt much worse pain on 14 February 2002, and that would account for the recorded single visit to a chiropractor in January 2002 whom he had last visited on a single occasion in January 2001, but going to a doctor when the pain was very different on 14 February.
12 I also find on the evidence before me that he had never been diagnosed as suffering from any psychological condition.
Findings as to circumstances of plaintiff suffering injury and subsequent events
13 Mr Grinter worked in the defendant’s powder room where his duties required almost constant moving of 25 kilogram bags of milk product, including moving them on and off conveyor belts, carrying them further when machinery malfunctioned, and lifting them above waist height so as to drop them to test whether the sealing of the bags was intact and, if not, repouring the contents into new bags. He worked 12 hour shifts at these duties. He says that in early 2002, when various machinery was malfunctioning, even more carrying and lifting of 25 kilograms was required, and he noticed the onset of what he calls “niggling pain” in his lower back until, on 14 February 2002, the pain became much more severe. He reported it that day and, either on the same or following day, consulted a general practitioner in Kyabram, Dr Griss, because his usual general practitioner could not see him promptly. Dr Griss certified him as unfit for work and ordered a CT scan of his lumbar spine. This was carried out on 9 February 2002 and revealed what the radiologist described as “some very minor central disc bulging” at L4/5, on the anterior aspect of the thecal sac, and reported no disc protrusions at L5/S1[5]. Anti- inflammatories were prescribed.
[5] Exhibit C
14 Mr Grinter resumed work after two to three weeks, ostensibly recommencing on light duties, but he says, and I accept, that within a very short time he had been put back on heavy duties. He continued to work at those duties for the rest of that year, although he never totally pain free in his low back.
15 In about November 2002, Mr Grinter and his wife separated, and by February 2003, his moods were such that his usual general practitioner, Dr Tisdall, certified him unfit to work and referred him to a psychiatrist, Dr Orchard, for assessment. Dr Orchard[6] noted mixed bipolar symptoms with hyperactivity of the mind, a workaholic personality, and considered there was a likely bipolar condition, which may be prevalent in his family, and recommended prescription of Epilim. Dr Orchard saw the plaintiff for a second time three weeks later, noted significant improvement from the Epilim, and recommended that it be prescribed on a long-term basis which has in fact occurred. Dr Orchard certified the plaintiff unfit for work for three to four months in the first half of 2003 as a result of his psychological condition. Mr Grinter’s understanding of these circumstances was that he was suffering from “stress”, mainly from his marriage break-up, and he does not attribute that period off work to his back injury.
[6] Exhibit 14, report to Dr Tisdall dated 28 March 2003
16 Mr Grinter resumed work at his former duties in June 2003, but by September 2003 reported worsening of his low back pain for which he consulted Dr Tisdall. A consultation on 19 September 2003 was the first notation in Dr Tisdall’s patient records of a complaint to him by the plaintiff of back pain, although there had been mention of a complaint of ongoing back pain in Dr Orchard’s letter to Dr Tisdall of March 2003. Dr Tisdall ordered x- rays and CT scan of the lumbar spine, which was performed on 25 September 2003, certified him unfit for work for two to three weeks and referred him to Mr Barrett, orthopaedic surgeon. In mid-November Mr Grinter had taken annual leave and a trip to Bali, but otherwise continued at his lifting duties.
17 Mr Barrett[7] saw the plaintiff on 7 December 2003. He examined the February 2002 CT scan which he said shows a mild central L4/5 disc bulge free of the neural structures and a small central L5/S1 disc bulge, also clear of the neural structures, and in comparison considered that the September 2003 CT scan showed that both of these lower lumbar disc bulges are somewhat larger and were by then closely adjacent to the lumbar theca at both levels. He told Mr Grinter that such lumbar intervertebral disc injuries had limited power of healing or repair, that he had by then a vulnerable lower lumbar spine, and that symptoms would increase if he returned to heavy lifting activities. He recommended permanent elimination of lifting activities, together with keeping fit.
[7] Exhibit H
18 After returning from his annual leave, Mr Grinter worked for two days, then, on 8 December 2003, experienced an incident of very severe back pain when getting up from a couch at home. He describes this as pain much more severe than he had ever experienced before in his life, (and has only experienced two or three times since. He reported it at work as a flare-up or aggravation of his February 2002 injury[8] and was certified unfit for work by Dr Tisdall for a couple of weeks. He returned to work in the new year of 2004.
[8] WorkCover Worker’s Injury Claim Form dated 22/09/03 – Exhibit 2
19 In January 2004 Mr Barrett had advised the defendants’ claims agent that he had sustained lower lumbar disc ruptures at the L4/5 and L5/S1 discs following his repeated activities in the course of his work, initially in February 2002 and aggravated by further lifting episodes in September 2003, and advised that his symptoms would increase unless he was taken off heavy lifting on a permanent basis. Similar advice was given to the defendants’ claim’s agent by Mr Hugh Weaver[9].
[9] Report of 7 November 2003 – Exhibit 6
20 It was not until August 2004 that the defendant obtained a workplace assessment for Mr Grinter from Dr Robyn Horsely[10]. Although he was moved to a different section of the factory, he was still in an unsatisfactory ergonomic arrangement, on 12 hour shifts, until November 2004, when he was moved to what were called “administrative duties” in the defendant’s warehouse, working 8 hours days, five days a week.
[10] Exhibit M
21 From January 2004 he was regularly prescribed morphine-based medication, commencing with MS Contin which was subsequently changed to Kapanol, the dosage of which has increased over the years since. I am satisfied that he continued to experience low back pain throughout that period but was determined to try to continue working. A further CT scan was obtained in April 2004, ordered by Dr Tisdall, from which I infer that the plaintiff’s presentation to that doctor warranted further radiological investigation, even though he was continuing to work, taking strong medication for pain.
22 In September 2004 a lumbar discogram was performed at the behest of Mr Barrett, confirming that the L4/5 disc was ruptured both posteriorally and slightly anteriorally, and the injection process was reported as producing severe and typical pain. The L5/S1 disc was not able to be entered with the injection, but Mr Barrett’s opinion was that it was already known to be ruptured from the three CT scans. Mr Barrett noted that the discogram confirmed that both the L2/3 and L3/4 discs were perfectly normal in all respects and injection into them was pain free[11].
[11] Exhibits H and C
23 Mr Barrett told Mr Grinter that an option would be spinal fusion surgery at two levels, but Mr Grinter was – and remains – very reluctant to have such surgery. I am satisfied that his decision to avoid surgery is not unreasonable, given what he described as the risks of which he has been told – of infection, of the surgery not helping, and of the possibility of worsening the situation - and also in light of a variety of other medical opinions, some of which[12] support the ultimate possibility of surgery whereas others do not[13].
[12] Eg Mr King
[13] Eg Mr Shannon
24 Mr Grinter’s ongoing duties with the defendant were in its warehouse and described as “administrative”. He said it was mainly in pallet control, sifting through paperwork, some use of computer, but also operating the forklift, organising pallets to be repaired and loading and unloading trucks with pallets. This involved restacking pallicons and breaking them up using the forklift to do this, but also physically wrapping them up with plastic wrap and stacking them. Some days he had no time on the forklift and some days four hours. Overall, he estimates that approximately half of his time was in paperwork.
25 In September 2006 he stopped work due, he says, to his ongoing back pain and associated anxiety and depression. Dr Tisdall agrees that it was the back pain which was the primary cause of his being unable to continue to work at that stage. Mr Grinter acknowledges that shortly before that he had “broken- up” with a woman at work with whom he had had a relationship for approximately six months. There were apparently work implications and allegations of harassment involved. With his existing psychological condition this would have been a significant exacerbator. He believes, and I accept, that his moodiness due to his back pain also would have contributed to the relationship stresses.
26 In September 2006 Dr Tisdall referred him back to Dr Orchard who then saw him regularly, approximately monthly, and Dr Orchard confirmed his view that there was an undiagnosed and untreated Attention Deficit Hyperactivity Disorder (“ADHD”) as well as bipolar mentation, although not quite of the order that can be described under DSM IV but he described it as a bipolar II disorder. Mood swings, anger and contempt for others, and a propensity to irrational aggressive outbursts were said by Dr Orchard to be part of his psychiatric condition. Dr Orchard considered that he should take some medication for his ADHD and for his bipolar spectrum disorder for the rest of his life, and supported Dr Tisdall’s assessment that the plaintiff was not fit to work. Dr Orchard wrote in April 2007 that he did not anticipate that Mr Grinter would ever return to the stage where he can work.[14] He considered him essentially unemployable permanently in a country environment, in view of his limited education, and his past excessive work ethic but a work ethic involving physical activity.
[14] Report dated 18 April 2007 to defendant’s insurer.
27 The plaintiff continued to be treated by Dr Orchard until at least early 2008. He said in his evidence that he has not been seeing Dr Orchard for about a year, although Dr Tisdall appeared to be under the impression that he was still seeing him monthly. Dr Tisdall prescribes on an ongoing basis Epilim for the bipolar symptoms and also anti-depressants.
28 Dr Tisdall also prescribes Kapanol, being morphine-based medication for pain, the dosage of which has risen over the intervening years from 30 milligrams per day, when introduced in 2004, to 150 milligrams a day, now taken 100 milligrams in the morning and 50 milligrams at night. I am satisfied that this is reasonable treatment for Mr Grinter’s pain, and is supported by most of the defendant’s medical advisers, including all orthopaedic specialists.
29 Mr Grinter was off work with the defendant from September 2006 until approximately September 2007, being certified as unfit to work by Dr Tisdall. Both he and Dr Tisdall maintain that his back condition was the primary cause of that incapacity for work, although acknowledging that his psychiatric condition was also disabling him from work over that period. The defendant argues that his reason for being off work was to attend to renovation of his house, but I accept his evidence that, whilst he overviewed and assisted in some respects, he was not doing much of the heavy physical work himself and certainly not on a sustained basis. I accept Mr Grinter as honest in this regard because he admits to actually doing some activities – against his interest – such as helping his builder brother pull down a wall. I accept that he has not – and should not – sustain such heavy physical activity for more than intermittent short periods when he has felt up to it.
30 I find that the underlying back condition and increasing pain from it was a significant and certainly material contributor to his inability to cope with work in the defendant’s warehouse. I accept that he had co-existent significant psychiatric problems during that time, also rendering him unfit to work, but I am satisfied on the balance of probabilities that the back condition was a material cause of that extended period of incapacity for work[15].
[15] Grech v Orica Australia Pty Ltd [2006] VSCA172, paras 57-58
31 He did return to work with the defendant in approximately September 2007, still on pallet control and driving the forklift, full-time, five days a week at eight hour days. He says that on occasions he was required to do some overtime, although it was unpaid. Some instances were put to him of interpersonal confrontations with other staff in the following months, and he accepts that he was told he might be given a formal warning arising from these, although I am not satisfied that a documented warning was actually given. He was off work for “stress” for a week or two in April 2008. In this environment, his employment was terminated in May 2008.
32 In February 2008 there had been an MRI of his lumbar spine.[16] This was ordered by Mr Barrett but there is no report from Mr Barrett since 2004 – said therefore by defendant to be stale. The MRI report concludes that there is disc degenerative changes at L4/5 and L5/S1 but no high grade neural compression. There is minor indention of the thecal sac and anterolaterally to the right at the L4/5 level, but the mass effect on the right L5 nerve root origin is quite minor. There are mild facet joint degenerative changes at L4/5 and L5/S1. I infer from the fact of review by Mr Barrett and the ordering of the MRI by Mr Barrett that Mr Grinter had presented with significant back symptoms at or in the months before February 2008.
[16] Exhibit J
33 The plaintiff has not sought other employment since May 2008. He continued to live on the farm of some 100 hectares, until the house burnt down in September 2008. He intends to rebuild and has approval from his house insurer. This farm he had purchased in approximately April 2003, it being the family farm previously run by his father and on which he was raised. To purchase it he obtained bank finance and also sold his 28 acre lot. He says, and I accept, that he has never run as many cattle on that property as his father used to do when well. He says and I accept that he has run up to 100 cattle, but in the last couple of years approximately 70 and is now down a little on that due to the drought, and in fact the stock are on agistment at present.
34 As to his activities on and in relation to his farm, the defendant stresses that he admits that he has a tractor which he drives to feed out the stock, that he uses at times a quad bike over the pasture, that from time to time he will do some tasks like restraining fencing wire, and that he supervises selection of cattle for sale. He watches birthing, and calls for assistance if human intervention is needed. He can and does do each of these tasks, but I accept that he is not always able to perform them, and manages by adapting the timing and duration of activities on the farm to when he feels able to do them. I accept that at times his back pain prevents him from doing any such tasks, and that overall and despite use of strong pain medication he cannot sustain strenuous activities for long. I accept his evidence that he has stayed as active as he can, but that there have been some days he is in too much pain to get out of bed. He says that he has not physically assisted with the birthing of cattle but has been present and called for help if it were needed. He did not personally round up or take to market animals for sale, but paid an agent to do that, although he would be present when they were selected.
35 I am satisfied on the balance of probabilities that he does perform a number of activities that which viewed in isolation would show him to be physically active, that his tanned skin on which the defendant relies is a sign of his performing activities in the open air, and that he does not appear as or live the life of an invalid. He drives, but needs to stop and stretch and relieve his back at about half hour intervals, and even with such breaks could not drive for a whole working day. Sitting and standing can similarly not be maintained for long prolonged periods.
36 My observations of him in Court were that he was genuinely protecting his back in his movements, and I am satisfied that he was genuinely in discomfort when needing to stand for extended periods in the witness box.[17]
[17] Necessitated by the configuration and built-in court furniture in Court1 at Bendigo Court.
Medical opinion
37 In August 2004 Dr Robyn Horsely an occupational medicine adviser was retained by the defendant for a workplace assessment for the plaintiff. She diagnosed discal lesions at L4/5 and L5/S1, stating that he had symptoms and clinical signs consistent with a discal disruption. Given the length of time since the injury (then 2 years) and the ongoing nature of the symptoms, she believed they were likely to persist. She said follow-up with discogram by Mr Barrett was appropriate, but thought he would benefit from counselling in addition to what he gained from his local doctor, and thought it commendable that he was at work.[18]
[18] Exhibit M
38 Medico legal reports obtained by the plaintiff’s solicitors from Professor Disler, Dr David Murphy and Mr G Moran in their overall terms support the plaintiff’s case. In my view some of the defendants’ medico-legal reports are even more supportive of the plaintiff’s case.
39 Mr Hugh Weaver, orthopaedic specialist, examined the plaintiff on behalf of the defendant in November 2003 and November 2005. On the first occasion Mr Weaver found him of good build, moving well overall, and found the clinical examination overall very satisfactory. Straight leg lowering did hurt the low- back region, but straight leg raising was undertaken to 70 degrees bilaterally with negative sciatic stretch tests, and neurological examination of his lower limbs was normal, apart from difficulty eliciting reflexes.
40 Mr Weaver reviewed CT scans of 19 February 2002 and 25 September 2003 and could see that they revealed evidence of small disc bulges posteriorly at L4/5 and L5/S1, and noted his different view as to L5/S1 from that of the radiologist reporting on the February 2002 scan. His opinion was that Mr Grinter presented with what he called “fairly reasonable evidence” that he was suffering from a degree of lumbar internal disc disruption, considered that MRI scanning of the lumbar spine would almost certainly be required, and he suspected that it would confirm evidence of at least some internal disc disruption affecting the distal lumbar region. He considered that Mr Grinter’s employment activities throughout the period he had been experiencing symptoms had represented a significant contributing factor to his situation, and advised that then-recent recurrence of symptoms represented no more than the recurrence of a problem that had troubled him first in February 2002. The timing of that opinion is after the increase in symptoms in September 2007, but before the incident of extreme pain at home getting up from the couch.
41 Mr Weaver specifically noted that although the clinical examination was fairly unremarkable and there was no obvious dramatic limitation of back movements, there were minor clinical signs consistent with a degree of lumbar segmental instability, which he believed, as clinical findings, were supported by the plain X-rays and CT appearance.
42 He advised continued conservative management such as physiotherapy and use of medications, at least until MRI scanning had been undertaken, and recommended a rehabilitation service be retained to do a worksite assessment to formulate alternative duties for him, because if he was indeed found to be suffering from genuine lumbar disc pathology then he was “quite frankly incapable of persevering with work which would require him to handle 25-kilogram bags of milk powder on a regular basis”.[19]
[19] Exhibit 6, report 7/11/03 at p.4.
43 He considered him capable of returning to suitable employment full-time, provided appropriate employment tasks were sorted out for him, with a prohibition on him handling weights of more than 10 kilograms. He concluded that there was probably a moderate partial impairment of low-back function for industrial purposes.
44 In November 2005 Mr Weaver noted him to have been in an administration job for approximately 12 months, which he understood to be a non-manual situation with no heavy lifting involved, but occasional forklift driving.
45 Mr Weaver considered that Mr Grinter had demonstrated his capacity to remain in active employment, notwithstanding his continuing symptoms, but commented that he had done very well to do so, and that that said a great deal about his level of motivation.[20]
[20] Report 5/11/05 at p.3.
46 Mr Weaver considered that the plaintiff’s ongoing employment would in itself be responsible for perpetuating his symptoms, at least to some extent, and considered that it was the use of painkilling medications which was enabling him to function as well as he was. He considered his whole regime of continuing management was just stabilising him, and that although he was theoretically a candidate to be considered for surgery it was not unreasonable for him to have declined that option.
47 Mr Weaver felt there were no alternative options for his likely ongoing symptoms. He noted that his apparently substantial requirement to use narcotic analgesics on a regular basis meant that the benefit of those medications, potent though they might be, was enabling him to continue to function both in the domestic and employment situations.
48 Mr Weaver saw the lumbar discograms that had been performed in September 2004, confirming that the L4/5 disc was ruptured and that it had been impossible to inject the lower disc.
49 Mr Steven Leitl, orthopaedic surgeon, examined the plaintiff for the defendant in January 2004[21]. He was then on modified duties with restricted lifting and bending, and said to be gradually working up to full 12-hour shifts, 4 days on and 4 days off. At that stage he was attending a chiropractor weekly, taking Panadeine Forte three to six per day, and living in a modified shed on his 20-acre property where he ran some beef cattle.
[21] Exhibit 7
50 On examination he found him cooperative, with slight restriction of full flexion of lumbar movement but an otherwise normal range, and no evidence of radiculopathy. He viewed the CT scan of 19 February 2002, which he also considered showed minor disc bulging at both L4/5 and L5/S1, and also the CT scan of 25 September 2003.
51 Mr Leitl diagnosed lumbar disc injuries at L4/5 and L5/S1, giving rise to variable intermittent low-back pain which improved with physiotherapy but never recovered completely. His view was that the January/February 2002 injury had been further exacerbated in September 2003 related to heavy and prolonged lifting and bending, with a further exacerbation of lower back pain at home on 8 December 2003 requiring further time off work. He said that the December 2003 exacerbation was not a new back injury, but an exacerbation of the previous back injury which had initially occurred in January/February 2002. He said that if further injury were avoided, then lumbar disc injuries can recover over a period of two years, however with repeated back injuries, recovery is much more prolonged. At that time he thought the plaintiff was suitable for modified duties, needed to take suitable analgesics and anti- inflammatories, but did not see value in massage, Bowen treatment, or chiropractic, but should continue regular physiotherapy, including hydrotherapy. He did not consider surgery would be required. He did not consider there to be other non-work-related factors to his claim.
52 In January 2007 Mr Leitl re-examined the plaintiff when he had been off work since Sept 2006 from physical and psychological reasons, was seeing Dr Orchard fortnightly and Dr Tisdall every four weeks or so, taking Kapanol of 50 mgs at bed time, Panadeine Forte up to four per day about twice a week, Celebrex, Ducene, and Lovan. He saw the discograms of September 2004, in addition to the preceding radiology and the CT scan of 20 April 2004.
53 Mr Leitl’s diagnosis was still L4/5 and L5/S1 disc injuries. He assessed the plaintiff as suffering chronic low-back pain, noted that on examination he showed a virtually normal range of lumbar spine movement, but said that may be because he takes heavy dosages of analgesics. Mr Leitl felt he did have current work capacity, but that he would never be able to return to pre-injury duties, and was fit for full-time modified duties of the type he was undertaking up to September 2006.
54 In April 2008 Mr Leitl was asked to review Mr Grinter’s levels of medication. He said that the use of anti-inflammatories and Epilim would not affect his capacity to drive a forklift, but the mood-altering drugs which he was also taking and their capacity to affect his ability to drive a forklift required comment from his psychiatrist.
55 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff for the defendant in November 2006. On examination he found thoracolumbar flexion and extension limited, and straight leg raising to 70 degrees with no neurological abnormality in the lower limbs. He saw radiology, but did not have the date of the plain x-rays and assumed them to be 2002.
56 His opinion was that Mr Grinter is suffering from lumbar disc degeneration and disc bulging at the lowest two lumbar levels. He comments that this was probably pre-existent to his employment with Tatura Milk, based on the original x-rays, but may have been asymptomatic. I discount this view, because Mr Shannon described the x-rays as possibly taken in 2002, whereas the only x-rays of the lumbar spine of which mention was made in evidence at all were those taken in September 2003 at approximately the same time that Dr Tisdall ordered the second CT scan.
57 He considered it was certainly consistent with the repetitive lifting of 25-kilogram bags of milk powder that such activities could aggravate and/or accelerate degenerative change of the lower lumbar discs, resulting in the disc bulging demonstrated on his CT scans, but felt he had not had a major disc prolapse. His view was that although the plaintiff described his symptoms as quite severe, the physical findings were in fact relatively minor, and there was certainly no exaggeration of physical signs. He accepted the possibility that the extensive medication was masking his physical signs, but felt that he was perfectly capable of the administrative type work that he believed he was performing prior to the last cessation of employment. He did not think him an ideal candidate for a two-level spinal fusion. He did not think he was fit for his former occupation requiring repetitive lifting. He considered he had a current work capacity, but not for pre-injury duties.
58 He advised ongoing pain management, but “would not be enthusiastic about surgery”. He did express that view as “in view of an apparent chronic pain syndrome”, but, as he appeared to accept that the plaintiff was not exaggerating his physical signs on examination, I am not prepared to infer, as the defendant’s counsel urges, that this is a reference to psychologically perceived pain.
59 Mr Shannon was asked, like Mr Leitl, in April 2008, to comment on the plaintiff’s medication insofar as it might affect his ability to drive and operate a forklift. He noted that when he commented on the substantial doses of narcotic medication two years earlier, he had not been aware that Mr Grinter’s duties included driving a forklift, and his understanding had been that his most recent light duties involved warehouse administration. He was not prepared to comment on a variety of the medications which were not within his sphere as an orthopaedic surgeon, and suggested a psychiatrist’s opinion.
60 He re-examined the plaintiff in September 2008, noting that he had worked from September 2007 until April 2008 on a full-time basis, but with a couple of flare-ups of pain requiring a few days off, until in April he had what he described as “another meltdown”. With his back playing up he developed anxiety and depression, and was put off work because of a combination of physical and psychological problems, and while off work was sacked.
61 On physical examination, thoracolumbar flexion and rotation were mildly restricted. Other movements were through a normal range, although there was some minor spasm on lateral flexion. Straight leg raising was to 60 degrees. The MRI scan of 4 February 2008 was noted to demonstrate disc degeneration at L4/5 and L5/S1 with a [query central] to right-sided disc bulge at L4/5 with a probable annular tear, and a [query central] bulge at L5/S1 again associated with an annular tear.
62 Mr Shannon’s opinion was that there had been little change in Mr Grinter’s condition since his previous examination, that he continued to have moderate disability in the low back associated with two-level lumbar disc degeneration and annular tears which had been aggravated and accelerated by his employment, that he remained unfit for work involving prolonged or repetitive bending or heavy lifting, but from a purely physical point of view was capable of administrative work or very light physical work. He considered that from an orthopaedic point of view his condition was stabilised, and he had been advised against any surgery. He considered his pain management, noting that it had remained as Kapanol, despite that being omitted from the insurer’s list of medications supplied in April 2008 for his comment on the effect of the medication on driving a forklift. He considered the pain management appropriate.
63 Mr Shannon said that he was partially incapacitated for employment, but capable of undertaking suitable employment such as he had demonstrated the previous year, but did not explain whether that included fitness for forklift driving or the suitability of such driving when on Kapanol.
64 Dr Malcolm Brown, occupational physician, of the Department of Epidemiology and Preventative Medicine at Monash University, examined the plaintiff for the defendant in July 2008. He read radiology reports rather than view the scans, and therefore regarded CT scans of February 2002 and September 2003 as showing a disc bulge at L4/5 but otherwise normal. On examination he found him to walk normally, and appearing to be in good health, with overall good range of movements.
65 Dr Brown concluded that Mr Grinter appeared to have suffered low-back pain at work, but said there was little to find on physical examination that day, and that there appeared to be active psycho-social issues. He described the radiological findings as showing typical gradual degenerative change with time. He did not have any objective information regarding the work tasks prior to the onset of his symptoms, and noted that the radiological examinations from 2002 to 2004 did not show evidence of any significant spinal condition, which he said was consistent with Mr Barrett’s findings on clinical examination. He said the minor disc bulges seen radiologically were widespread in the asymptomatic population and have no clinical significance, and the subsequent disc protrusions and disc abnormalities seen radiologically in early 2008 have developed more recently and are unlikely to have any clinical significance, based on that day’s physical examination. He considered the discogram was unlikely to have clinical relevance, especially with the procedural difficulties. His view was that discograms have particularly poor accuracy in the workers’ compensation context and where there are active psycho-social factors.
66 Dr Brown considered Mr Grinter had uncomplicated lower-back pain causing minor symptoms and partial incapacity for work, but there was no evidence of significant spinal injury. He referred to research on psycho-social factors as the predominant predicator of chronic low-back pain, thought it was difficult to assess a degree of impairment without objective information as to the nature of Mr Grinter’s work tasks, commented on the onset of uncomplicated mild low-back pain widely in the general population regardless of occupation, so considered there was significant doubt as to whether his current symptoms are work-related.
67 Regardless of the causation, Dr Brown did consider Mr Grinter appeared to have some incapacity for tasks which involved constant bending and heavy lifting, and felt the prognosis was for little change. He considered he had a capacity for suitable employment and there were a wide range of job options for him, apart from those with constant bending and heavy lifting. He proffered examples that he could drive forklifts, tractors, or trucks, without difficulty. He noted that his assessment was based primarily on the physical findings.
68 In March 2009 he was asked to comment on a vocational assessment report. He thought Mr Grinter had a capacity to work as an earthmoving operator or forklift driver without specific restrictions.
69 The defendants also point to a report of Dr Terrence Lim to whom the plaintiff was referred for a pain management program. Dr Lim says that because the plaintiff’s complaints of ongoing pain are greater than would be expected at his age and from his injury, the pain sensitisation process of which condition he is a specialist, is the cause. Mr Tobin for the plaintiff suggested that Dr Lim is on his own in this opinion of the plaintiff and should not be accepted on it. However, in any event, the process described by Dr Lim is still a condition of organic cause – and a consequence of an original organic injury – and does not undermine the plaintiff’s case.
70 The defendant obtained a report from Dr Dinesh K. Varma[22] to give a specialist radiological opinion on the various radiology reports. His view was that radiologically the lower-disc pathology was mild, and with appropriate treatment one would expect a reasonably good clinical outcome. (He does not comment on what that treatment might be). He noted that radiologically the size and morphology of the discs at L4/5 and L5/S1 had remained stable between 2002 and 2008, and, allowing for the differences between CT and MRI scans, there had been no change in the size and morphology of the disc pathology at L4/5 and L5/S1. Annular fissures were not seen on CT scans, however were present on the lumbar discogram and MRI scan; and the MRI scan of February 2008 also showed mild bilateral facet-joint degenerative changes at L4/5 and L5/S1 which had developed since the previous CT scan of 20 April 2004. He noted, so far as symptoms to be expected, that sciatic- type symptoms would be unusual, as there was no neural compression.
[22] Exhibit 10.
Findings as to injury suffered and its consequences
71 I am satisfied that as a result of lifting duties with the first defendant the plaintiff suffered injury to each of his L4/5 and L5/S1 discs. Whether or not there was pre-existing degenerative change – and he was only aged 25 at the time, with a history of heavy work, but without similar disc damage at higher levels in his spine years later – I find that the work leading up to and including 14 February 2002 caused significant aggravation and exacerbation of his lower lumbar discs. I am satisfied that the lifting duties caused his lower lumbar discs to reach a condition of derangement at the age of 25 where he would have a permanently painful back which would be vulnerable to further exacerbations and potentially further damage for the rest of his life.
72 I reject the defendants’ argument that the plaintiff’s complaints or perception of pain are psychologically based, or that he has failed to “disentangle” psychological cause from physical. In my view the overwhelming weight of the evidence is that the pathology in his spine explains his complaints of pain and disability, and will continue permanently to cause him such pain and disability, varying in degree according to his activities and the effects of his medication. There is nothing to indicate that his co-existent bi-polar and ADHD conditions are causing him to enlarge his perception of his back pain. To the extent that he developed some reactive depression or anxiety it was totally understandable but is not shown to dominate his presentation and in my view requires no “disentanglement” . As explained in relation to the views of Dr Brown, and to the extent they are to the effect of psychologically based pain Mr Shannon and Dr Lim, I accept the views of the other doctors to those, but in particular my assessment of the plaintiff and his presentation is that his disabling back pain started during lifting duties in February 2002 and is not psychologically based or he would not have persevered with work for as long as he did.
73 As several of the defendants’ doctors noted, it was to his credit that he continued to work for some years afterwards, including persevering at heavy duties when the defendant was not providing lighter ones as recommended by Mr Barrett and Mr Weaver. In my view the plaintiff’s behaviour showed strong motivation for work, and lack of exaggeration in his descriptions of his levels of disability.
74 I accept that in persevering in work and in trying to keep active, he has required considerable medication which has now reached levels that of themselves are disabling and addictive. His decision not to entertain spinal surgery is not unreasonable, and the orthopaedic opinion is to the effect that nothing other than strong medication is available as treatment. That medication in itself is relevant to his ongoing impairment so far as pain and suffering is concerned.
75 He is still only 32 years old, living a much more restricted lifestyle than before his injury, no longer being able to water-ski or ride motor bikes as he used to do for leisure. I am satisfied that even with his medication, he is never entirely free of his back pain and that at times it is severe enough to keep him in bed all day. When he says he has had only two or three episodes as severe as the one of 8 December 2003, that is not to underestimate the gruelling nature of ongoing nagging pain at a lower level.
76 I am satisfied that the plaintiff’s level of permanent impairment of function of his low back, as to pain and suffering, can fairly be described as “more than significant or marked” and “at least very considerable”.
Loss of earning capacity
77 The plaintiff was not yet 26 years old at the time of his injury, and therefore the test of whether he satisfies the test for a serious injury as to loss of earning capacity falls within s 134AB (38) (e)(ii). He must prove that he will suffer a permanent loss of earning capacity from the date of decision or hearing of financial loss of at least 40%. In considering whether he meets that test, I am not bound to apply the formula for determining his “without injury” earnings contained in sub-paragraph (f). Both parties agree that sub- paragraph (g) also does not apply, as to the reasonableness of his efforts at rehabilitation or retraining for suitable employment, but the defendants submit that sub-section (19)(b) still applies placing the onus on the plaintiff of proving any inability to be retrained or rehabilitated or to undertake suitable employment including alternative or further or additional employment and the extent of such inability.
78 The defendants submit that although sub-paragraph (38)(f) does not apply, I must still be satisfied of what earnings he would have been capable of earning as at the date of hearing/decision, in order to find a permanent loss of earning capacity which will be productive of financial loss of 40% or more.
79 Although under age 26, Mr Grinter had an established work history of employment yielding over $58,000 gross two years before his injury, and of more than $55,000 gross over several years. This was all earned at heavy physical work. I am satisfied that he is totally and permanently incapacitated by reason of his back injury from work in his trade as a roof tiler, as a meat worker, or as a labourer in the powder room of the defendant. I am satisfied that he is permanently unfit to engage in any job requiring lifting of weights or of bending or twisting.
80 I am satisfied that he could not engage in any job that required sustained driving of a vehicle or machinery, partly because he cannot sit for long without increased pain, and partly because of the high does of morphine based medication he is taking – as reasonable treatment – for his back pain. That he applied for and obtained licences for an excavator, water truck, grader and roller, I take to be evidence of his strong motivation to try to find alternative work. These were suggested by Work Options, and I accept his evidence that to obtain them he only needed to climb into and operate the respective vehicles for 5 minutes or so and to do the written tests. I am satisfied that these are occupations that he could never be expected to perform full-time or even part-time on a sustained basis. I am satisfied that his back condition is likely to prevent his ever being able to satisfy an employer’s need to have him keep to sustain such activities reliably and frequently enough to make even part-time employment at such jobs viable. I reject Dr Brown’s view to the contrary, and no other doctor proffered the suggestion that he could be employed driving heavy vehicles or machinery.
81 I reject the suggestion that he could work full-time as a commercial carpark attendant. I do not believe he could do that on a sustained basis. Moreover, as he lives in Stanhope, if he were to be in such a job in Shepparton or Bendigo he is likely to arrive for work with an already stiff and painful back after a long drive. Given his personality and psychological condition, the prospects are that he would not be able to maintain an equable mood for a full day’s work at such a job.
82 So far as his co-existent personality and psychiatric conditions are concerned, I am satisfied that he is unsuited to work requiring interaction with other people on a constant basis, or where situations of tension or pressure are likely to arise. The defendants did not cause that condition, but by causing injury to his back have in him a person less adaptable to other work environments.
83 In addition to working full time, at the time of his injury the plaintiff was also running in a very small way cattle on a 28 acre block. That business was making a loss, and he has made losses in running that and then the larger farm he bought in 2003 ever since. I have insufficient information to be able to say whether he could be making a profit if he had not injured his back, but I regard as relevant that he could have performed all of the tasks of maintaining the farm physically himself if his back had not been injured, and now pays for help with various tasks.
84 I am satisfied for the above reasons, that as a result of the injury to his back suffered on 14 February 2002 that the plaintiff is permanently unfit to perform any income earning work on a sustained basis. If he can in the future obtain some paid job that gives him sufficient flexibility of tasks and timing, he may from time to time earn some income, but I am satisfied that it is unlikely ever to be sustained for long enough to earn him on an annual basis 60% of what he could have earned in full-time manual, labouring work if he had not suffered the injury he did to his back.
85 I am satisfied that he has discharged his onus of showing that he is unable to be retrained for suitable alternative work – he persevered with the defendant’s work offers, he took the advice of Work Options to obtain further licences, but I am satisfied that none of that equips him for sustained income earning to the extent of 60% of his pre-injury earning capacity.
Conclusions
86 For the reasons stated I am satisfied that Mr Grinter suffered injury to his low back on or about 14 February 2002, the consequences of which satisfy the tests for “serious injury” both in respect of pain and suffering and in respect of loss of earning capacity, and I propose to grant him leave to bring proceedings for damages accordingly.
SCHEDULE OF EXHIBITS
GRINTER v. TATURA MILK INDUSTRIES PTY LTD & VWA
Number and
| Identifying Mark | Short Description of Exhibit |
on Exhibit
A Affidavits of Plaintiff sworn 22/5/08 & 4/4/09 (PCB 5a-5c)
Reports of Dr Tisdall, 16/1/06 (PCB 99-106), 21/12/06 (PCB 34-B 9), 28/12/06 (PCB 107-8), 10/8/07 & 29/3/09 (PCB 40-45)
Radiology Reports of CT scans of 19/02/02, 25/09/03 andC 20/04/04, and lumbar discogram of 01/09/04. D Report of Professor P. Disler, 19/3/09 (PCB 26-9) E Report of Dr D. Murphy, 3/3/08 (PCB 30-3) F Report of Mr K. King, 21/6/07 (PCB 46-52) G Report of Dr T. Lim, 6/9/07 (PCB 53-6)
Reports from Mr B. Barrett, 9/12/03, 7/1/04 & 7/9/04 (PCB 57-8;H 122-24; 127) J MRI of lumbar spine, 4/2/08 (PCB 60-1) K Vocational Report of Evidex, 7/4/09 (PCB 70-94) L Report of Mr G. Moran, 25/2/08 (PCB 114-21) M Reports of Dr R. Horsley, 11/8/04, 14/8/04 x2 (DCB 26-51)
Copy Workcover Worker’s Claim Form signed by Plaintiff,1 26/2/02 (DCB 156-58) Copy Workcover Worker’s Claim Form signed by Plaintiff, 2 22/9/03 (DCB 159-61) Copy Workcover Worker’s Claim Form signed by Plaintiff, 3 16/12/03 (DCB 162-63a) Letters of Dr Tisdall 08/10/07 to QBE, 25/09/07 to Victorian 4 Police and 29/10/08 “To whom it may concern” 5 Report of Mr M. Dooley, 17/3/09 (PCB 95-8) 6 Reports of Mr H. Weaver, 7/11/03 & 8/11/05 (DCB 1-11) 7 Reports of Mr S. Leitl, 8/1/04, 17/1/07 & 29/4/08 (DCB 12-25) Reports of Mr M. Shannon, 14/11/06, 29/4/08 & 8/9/08 (DCB 8 52-62) 9 Reports of Dr M. Brown, 21/7/08 & 30/3/09 (DCB 63-7a) 10 Report of Dr D. Varma, 17/2/09 (DCB 68-71) Vocational Assessment report of Work Options, 13/6/08 (DCB 11 122-36)
Vocational Assessment report of CRS Australia, 1/12/08 (DCB12 137-53) 13 Tax Returns of Plaintiff for FYE 30 June 2000 to 30 June 2008
14 Reports of Dr W. Orchard, 28/3/03& 18/4/07 (DCB 71a, 71d-h)
15 Copy Dr Tisdall’s progress notes on Plaintiff, 3/11/97 to 20/4/09
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