Guthrie v VWA
[2022] VCC 1711
•11 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-00033
| KENNETH GUTHRIE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 July 2022 | |
DATE OF JUDGMENT: | 11 October 2022 | |
CASE MAY BE CITED AS: | Guthrie v VWA | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1711 | |
REASONS FOR JUDGMENT
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Subject:Accident compensation
Catchwords: Serious injury; Back injury; Course of employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013;
Accident Compensation Act 1985
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Lu v Mediterranean
Shoes Pty Ltd (2000) 1 VR 511; Haden Engineering Pty Ltd v
McKinnon [2010] VSCA 69
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Czarnota | Maurice Blackburn |
| For the Defendant | Mr C. Miles | Wisewould Mahoney |
HIS HONOUR:
Introduction
1Kenneth Guthrie is now 67 years of age. He worked with Integrated Packaging Pty Ltd (“the employer”) from 1998 until August 2015, when he resigned. His work with the employer was as a conversion machine operator, which he describes as “heavy, repetitive and awkward involving frequent turning and twisting whilst lifting.”[1]
[1]Exhibit A, p 14 [7]
2In the course of his lengthy employment he suffered a number of insults to his back and submitted a compensation claim in March 2014 stating that his past back injury was getting worse over the years. His claim was accepted.
3After ceasing work with the employer Mr Guthrie managed to obtain some further employment initially as a traffic controller, and more recently he has worked for two local councils through a labour hire agency. At the time of the present application he was engaged is a litter picker by the Whittlesea Council.
4In this application he seeks leave to claim damages at common law on the basis that he sustained a serious injury as defined relevantly in s 134AB of the Accident Compensation Act 1985 (“ACA”) and/or Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRC”).
5Mr Guthrie’s application is made only in respect of pain and suffering. Mr Czarnota, who appeared on his behalf, identified the lumbar spine as the body function said to be relevantly lost or impaired. The application for leave relied upon paragraph (a) of the serious injury definition. Mr Czarnota described the injury as having occurred during the course of employment, aggravating an underlying degenerate lumbar spine.
6Mr Miles, who appeared on behalf of the defendant, identified two issues as relevant to Mr Guthrie’s application. First, it was argued that any injury sustained in the course of Mr Guthrie’s employment amounted only to a temporary aggravation of his lumbar spinal condition. It could not be seen as permanent. Secondly, the consequences in terms of pain and suffering fell below the threshold mandating a grant of leave to the plaintiff.
7Mr Guthrie was the only witness required for cross-examination. The parties otherwise tendered material from their respective court books as evidence in this application.
The lay evidence
8Mr Guthrie swore two affidavits in support of his application, the first on 17 August 2020 and a further affidavit on 29 June 2022.[2] An affidavit from the plaintiff’s wife, Faye Guthrie, was sworn on 29 June 2022.[3]
[2]Exhibit A, pp 13 to 25
[3]Exhibit A, pp 26 to 29
9Mr Guthrie’s first affidavit describes his background working mainly in transport companies, before commencing with the employer in 1998. The work as a conversion machine operator was described as follows:
“... I was required to set and maintain various machines. I loaded and unloaded machines, packed pallets and lifted heavy boxes and rolls. The work was heavy, repetitive and awkward and involved frequent turning and twisting whilst lifting.”[4]
[4]Exhibit A, p 14 [7]
10Mr Guthrie described a specific incident when he slipped on some steps at work in 2002. He was off work for about two weeks and returned for a relatively short period of light duties. He described the pain as settling:
”... to an extent. I still had pain off and on, usually after a big day at work.”[5]
[5]Exhibit A, p 14 [8]
11Mr Guthrie described further incidents affecting his back in 2005, 2012 and 2014. He submitted a WorkCover claim in March 2014 which was accepted. Shortly after this time he reduced his work hours and commenced taking stronger medication.
12Mr Guthrie’s first affidavit describes further difficulties with his back leading up to his resignation from employment in August 2015. He lodged a claim for impairment benefits which was also accepted.
13He described the impact of his back pain on his activities of daily living in addition to various recreational and home maintenance activities.
14After resigning from his employment with the employer he did not work for about nine months. At the time of his first affidavit he had returned to some work as a traffic controller stating:
“I am currently working with Armour Safety on a casual basis. Some days I work 4 hours a day. Other days, I work longer. If I stand on the one spot for too long, I have pain shooting up my back and shooting down my left leg.
If I stopped working, I would fall in a heap. I don’t whinge about the pain. I want to work. I do cop a lot of difficulty when I get home from work. Once I relax, I have trouble. I find it difficult to get off the couch. I just keep going. I am a worker. I’m not a sook. If I sat at home the pain would just get worse. I push myself hard to keep going.”[6]
[6]Exhibit A, p 19 [42] to [43]
15In Mr Guthrie’s second affidavit he described taking medication including Lyrica, Celebrex and Panadol. He described his lower back pain as:
“... constant pain in my lower back, which never goes away. It is aggravated by activity.”[7]
[7]Exhibit A, p 21 [4]
16He described his current work as a litter picker and made reference to various factors which both aggravated and relieved his back pain. He described changes in his employment since the first affidavit, noting that he had been engaged by the Whittlesea City Council for approximately six months through a labour hire agency as a litter picker working up to 40 hours per week.
17The second affidavit made reference to interference with sleep, cessation of weekly golf and interferences with hobbies, including working on cars and motorcycles. He also described some restriction in gardening and assisting his wife with housework. He was less able to interact with his young grandchildren due to his back pain.
18Mr Guthrie’s most recent affidavit referred to his inability to wean himself off the medication. He described the pain as dominating his life.[8]
[8]Exhibit A, pp 24 [22] to 25 [23]
19When cross-examined I noted the following evidence relevant to Mr Guthrie’s application.
· He agreed that he had suffered two incidents in the decade following the year 2000, one a slipping incident and the other when he was pushing a pallet.[9]
[9]Transcript (“T”) 10, Line (“L”) 28 to T 11, L 5
· He had only taken a short time off work and returned to his normal duties after each of these incidents.[10]
[10]T 11, L 14 to 18
· He had not had medical treatment for his back from about 2007 to late 2012.[11]
[11]T 11, L 19 to 22
· He had continued in his normal duties until February 2014 when he lifted his granddaughter and again suffered back pain.[12]
[12]T 11, L 28 to T 12, L 1
· He then took a couple of days off work and submitted a WorkCover claim in March 2014.[13]
[13]T 12, L 2 to 4
· After the flare-up of pain in March 2014 he had returned to normal duties by 31 March 2014.[14]
· He then reduced his shift hours from 12 to 8 until approximately July 2014 and then returned to working 12 hour shifts until he ceased with the employer in 2015.[15]
· Mr Guthrie agreed that at the time he was doing reduced shift hours he was doing some home renovations, including ripping out a deck and taking up tiles from the floor.[16]
· Mr Guthrie agreed that he had withdrawn a relatively small amount from his superannuation after resigning from the employer but agreed that he was the sort of man who would rather be working than not working.[17]
· Mr Guthrie was not required to have pre-employment medical examinations for his work in traffic control, but agreed in cross-examination that aspects of the work such as long hours of standing, moving bollards and setting up metal signs were heavier aspects of that work.[18]
· He had ceased that work and undertaken work initially for the Port Phillip Council as the traffic control work was:
“... too much on the back.
... But regardless of the fact that - whether I was doing traffic or whether I’m working for the council, the back is still pain in every day.
... but I just got to keep going.”[19]
[14]T 12, L 20 to 27
[15]T 13, L 1 to 9
[16]T 13, L 10 to 20
[17]T 14, L 1-29
[18]T 15, L 7-31
[19]T 16, L 13-23
· Mr Guthrie agreed his current work with the Whittlesea Council involved an eight hour shift with he and another worker alternating between driving a small truck and walking behind to pick up rubbish.[20]
· Mr Guthrie agreed in cross-examination that he enjoyed the work as a traffic controller and in that employment received good money:
“... about the same or a bit better than with the factory job (with the employer).”[21]
[20]T 21, L 4 to T 22, L 24
[21]T 23, L 2-25
20When cross-examined about his medical treatment Mr Guthrie agreed that he had last received physiotherapy in about 2015, he had never been referred to a specialist for his back and he continued to see his general practitioner approximately once per year when he received his prescription medication.[22]
· His medication regime over approximately the last 12 months had been two 300mg tablets of Lyrica daily, 200mg of Celebrex for approximately three days, and one Panadol every three days or so.[23]
· Mr Guthrie described the medication as helping with the pain. He also used a vibrating foot pad.[24]
· He disagreed that the pattern of pain tended to “come and go a bit”, stating that it was there all the time, “it’s more – more constant.”[25]
· Mr Guthrie agreed that he attended to his personal care and grooming needs “with a bit of difficulty.”[26]
· When asked about his hobbies he agreed that he had not engaged in doing up cars or motorcycles for about “10 years plus.”[27]
· He agreed he still spent time in the garage, but mainly listening to old records.[28]
· Concerning housework, he agreed he had told a medical examiner in November 2020 that he contributed to the household work, loading the dishwasher and doing the washing. He stated this had changed a lot and he had stopped doing this in the last few years.[29]
· Mr Guthrie agreed with the broad proposition that he was doing less and less around the house over the years.[30]
· He agreed that he had last played golf a short time before 2014, and had last played basketball around 2012. He had attended the gym until the early months of 2015.[31]
[22]T 23, L 26 to T 24, L 25
[23]T 26, L 4-21
[24]T 26, L 22-28
[25]T 26, L 29-30
[26]T 27, L 30 to T 28, L 3
[27]T 29, L 4-14
[28]T 29, L 15-20
[29]T 30, L 14-21
[30]T 30, L 31 to T 31, L 1
[31]T 31, L 6 to T 32, L 12
21Mr Guthrie was then re-examined and gave further evidence concerning his pain levels and impact on his sleep. He described taking the Lyrica as:
“It lets me sleep for about three to four hours.
... And then I start getting a reasonable amount of back pain and most of the time I’ve got to get up.
... I’ll get up, walk around. Sometimes I’ll try to go back – back to sleep for an hour or two but other than that, I will just jump in the shower and stay awake.”
22He described this interference with his sleep as happening at least three and sometimes four nights per week.[32]
[32]T 34, L 12-31
23Mr Guthrie also described the back injury as impacting on his ability to cook, which he had previously enjoyed.[33]
[33]T 35, L 3-20
24The further lay evidence was contained in Mrs Guthrie’s affidavit sworn 29 June 2022. She was not required for cross-examination.
25In broad terms Mrs Guthrie’s affidavit supports her husband’s claims that he is less active around the house than previously, and he appears, to her observation, to be in pain:
“I can tell when he is in pain as his mood changes. He gets irritable and cannot handle people around him talking and making noise. This happens throughout the week. He goes to bed early. He never used to be like this.
When he gets home from work he looks tired and I can tell he is pain. He takes his medication.”[34]
[34]Exhibit A, p 27 [6] to [7]
26Mrs Guthrie makes further reference to her husband’s stoicism and the effort he makes to continue working.
The medical evidence
27Mr Czarnota tendered into evidence two reports from Dr Zia at the Mediq Wallan Medical Clinic dated 21 October 2015 and 12 December 2016.[35] A recent report from his current general practitioner, Dr Jaydeep Rathore, dated 22 May 2022 was also tendered.[36]
[35]Exhibit A, pp 30-35
[36]Exhibit A, pp 36-37
28Dr Zia had first seen Mr Guthrie on 31 May 2015 and noted that he had issues with back pain since April 2014. His first report made reference to Mr Guthrie’s then work as requiring him to do “frequent bending and twisting with heavy weight lifting abilities (average 10 kg).”[37] Dr Zia recommenced physiotherapy, pain medication and modified duties not involving heavy lifting and bending/twisting.
[37]Exhibit A, p 30
29Dr Zia’s further report dated 12 December 2016 again noted Mr Guthrie having problems with his back since April 2014 as part of a work injury. Dr Zia had since prescribed him pain medication together with physiotherapy.
30Dr Rathore’s report of 22 May 2022 confirmed that he had first seen Mr Guthrie on 27 December 2017 and noting Mr Guthrie’s complaint of chronic lumbar back pain “from an injury that he reported he sustained at work previously.”[38] Dr Rathore noted a history of lower back injuries at work in 2002 and 2005. He had referred Mr Guthrie to a neurosurgeon, Mr Yagnesh Vellore, but had received no follow-up either from Mr Guthrie or from the neurosurgeon. Dr Rathore stated in his report that he has had no further follow-up from Mr Guthrie since 6 April 2019 in relation to his lumbar back pain.
[38]Exhibit A, p 36
31In addition to the reports from the treating general practitioners Mr Czarnota tendered into evidence clinical notes from the Tristar Medical Group in Epping recording Mr Guthrie’s attendances from 18 July 2005 to 18 January 2013.[39] The first entry in these health records makes reference to Mr Guthrie suffering a back injury in July 2005 when he slipped while going down stairs.
“Was put off work couple days and then had a rostered week off. Now feeling OK but some residual discomfort.”[40]
[39]Exhibit A, pp 71-76
[40]Exhibit A, p 76
32The records make several further references to back pain up to 18 January 2013.
33A medico legal opinion was obtained from Dr Mohammed Awad, neurosurgeon and spinal surgeon, dated 24 May 2022.[41] Dr Awad records the relevant history as follows:
“Throughout his employment he was required to perform heavy repetitive tasks with awkward lifting and had the start of some onset problems in about 2014. He was having some issues prior to this due to a previous work injury dating back to 2001. This where he slipped down some stairs at work requiring a few weeks off work which improved. He had flare-ups in few years thereafter. However in 2014, he started losing feeling in his legs and was taken to Epping Hospital for this. He was commenced on the physiotherapy and was treated for his back pain with medications and ultimately in 2015 he stopped working as he was unable to continue his job consistently and reliably.”[42]
[41]Exhibit A, pp 38-41
[42]Exhibit A, p 38
34Dr Awad noted Mr Guthrie’s further employment and reviewed the radiological material. He diagnosed Mr Guthrie as suffering from an aggravation of lumbar spondylosis. As to causation he stated:
“In my opinion, his employment as a machine operator over the years has most likely been a dominant contributing factor to the aggravation of his lumbar spondylosis. In my opinion, his employment then remained a significant contributing factor to his ongoing pain, disability and requirement for treatment.”[43]
[43]Exhibit A, p 40
35He regarded the ongoing restrictions as likely to be permanent, considering the back injury alone. He described the prognosis as follows:
“Prognosis is such that he is likely to suffer the ongoing consequences of this injury in the form of pain and disability into the foreseeable future. It is unlikely that he will require any surgery at this stage, but he is likely to require ongoing pain management and assistance.”[44]
[44]Exhibit A, p 41
36Mr Miles on behalf of the defendant tendered reports from two occupational physicians, Dr Joseph Slesenger dated 12 December 2014,[45] and Dr David Elder dated 18 January 2016.[46] He additionally tendered three more recent reports from Mr Kevin Siu, neurosurgeon, dated 18 November 2020,[47] 22 April 2022,[48] and 30 June 2022.[49]
[45]Exhibit 1, pp 3-10
[46]Exhibit 1, pp 11-14
[47]Exhibit 1, pp 15-20
[48]Exhibit 1, pp 21-25
[49]Exhibit 1, pp 26-27
37Dr Slesenger examined Mr Guthrie on 3 December 2014. He noted a history of an original injury to Mr Guthrie’s back in 2002 when he slipped on steps, an exacerbation to the back injury in 2005 when pushing a pallet, and a further increase in back pain early in 2014 when Dr Slesenger records Mr Guthrie as working at a fast pace due to a change in his hours.
38Dr Slesenger described Mr Guthrie as having sustained an exacerbation of his longstanding lower back pain. He described the injury as follows:
“Mr Guthrie has degenerative disease of the lumbar spine. He suffered a recent exacerbation of his symptoms, but the symptoms have now virtually settled.”[50]
[50]Exhibit 1, p 8
39Dr Slesenger expressed the following opinion concerning causation:
“Mr Guthrie’s work demands required repetitive bending and twisting, forward reaching and transferring of weights up to 21kgs. I am satisfied that the occupational demands are a plausible cause of his impairment. There is a temporal association and I am satisfied that his impairment is work related.”[51]
[51]Exhibit 1, p 8
40Dr Elder examined Mr Guthrie on 18 January 2016. Once again he noted an original injury occurring in 2002, with further incidents in 2005 and 2008. Dr Elder described the injury occurring in 2014 as follows:
“On this date of injury he described the general nature of his duties involved an increase in production of and handling up to 25 kg rolls of stretch wrap and other plastic product. He stated the production was getting busier and busier and ‘they were always pushing’.”[52]
[52]Exhibit 1, p 11
41Dr Elder described Mr Guthrie’s injury as “mechanical low back pain with no clinical evidence of radiculopathy.”[53]
[53]Exhibit 1, p 13
42Dr Elder’s report was principally directed towards an impairment assessment. He did not express any opinion concerning causation or future prognosis.
43Mr Siu first examined Mr Guthrie at the request of the defendant’s solicitors on 16 November 2020. Mr Siu recorded a somewhat vague history of injury, noting that there was some variance between the dates of injury provided in his letter of instruction and the dates confirmed by Mr Guthrie:
“I need to emphasise that this nice old gentleman really has no idea of the date of injury, how much time he had off and what diagnosis was offered. To repeat myself, he could have hurt himself in 2001/2002 when he slipped.”[54]
[54]Exhibit 1, p 16
44Mr Siu again noted somewhat vague histories of incidents in 2005, 2010 and 2014. Nevertheless Mr Siu summarised the relevant history as follows:
“... this worker reported that he had three episodes of injury to his back; the last one he was not very specific about in that he felt the job was too heavy and too fast, therefore, he had time off. In fact, that time off extended to a number of months off and he never returned to work.
Apart from medication and a bout of physiotherapy at a time he could not recall, he has had no other specific treatment and has never been seen by a specialist in order to manage his pain. He told me he has no pain now (2020).”[55]
[55]Exhibit 1, p 18
45Mr Siu described the employment duties and the development of symptoms as follows:
“Although he tried to describe his work, he considered it only moderately heavy, it was essentially a labouring job with lifting, bending and twisting.
He identified two or three episodes, and the last one he felt the job was too heavy.
Treatment received was mainly conservative management with analgesics and perhaps intermittent physiotherapy.”[56]
[56]Exhibit 1, p 18
46In his first report Mr Siu described the medical condition as an exacerbation of lumbar spondylosis with two-three episodes of significant exacerbation. In that repot he was also asked to express an opinion as to the relevance of Mr Guthrie suffering low back pain when lifting a grandchild in 2014. Mr Siu commented as follows:
“He confirmed that he lifted a grandchild up and had back pain, but after resting he considered himself to have recovered. Therefore, there is no reason to suggest that there was a significant exacerbation of his pre‑existing lumbar spondylosis.”[57]
[57]Exhibit 1, p 19
47Mr Siu again examined Mr Guthrie at the request of the defendant’s solicitors on 22 April 2022. Mr Siu again had some difficulty in recording a detailed history, although he essentially records three flare-ups of back pain during the course of Mr Guthrie’s employment between 2001, when he slipped on the stairs, and 2014 when he noted that his “back went” without a specific incident.”[58]
[58]Exhibit 1, p 22
48At the time of that second examination Mr Siu noted Mr Guthrie was working as a litter picker for the Whittlesea City Council. He also recorded the earlier work as a traffic controller consistent with the evidence given in the present application.
49Mr Siu noted in his report that he did not have a copy of an MRI which had been earlier quoted by Dr Elder as showing disc degeneration at L5/S1 with no significant neural involvement.
50Mr Siu described Mr Guthrie’s condition essentially as mechanical low back pain. He described the condition as follows:
“The worker’s present condition in medical terms is intermittent exacerbation of lumbar spondylosis. The MRI was quoted to show degenerative changes. Presently, there is no clinical evidence of nerve root compression.
Although he has suffered exacerbations and significantly in 2014, his present symptoms predominantly from age-related degenerative lumbar spondylosis.”[59]
[59]Exhibit 1, pp 24-25
51He did however comment that the work related incidents recorded in 2001, 2005 and perhaps 2014:
“... were consistent with the worker suffering an exacerbation of pre-existing lumbar spondylosis.”[60]
[60]Exhibit 1, p 25
52For completeness I note that Mr Siu provided a brief supplementary report commenting on the medications being taken by Mr Guthrie. He noted Mr Guthrie was taking Lyrica, Celebrex and Panadol and stated:
“Overall I feel the medications are reasonable for the conditions.”[61]
[61]Exhibit 1, p 26
Analysis
53Mr Guthrie presented as a genuine and honest witness. I accept that he was somewhat vague as to the circumstances of the particular incidents and events impacting his back over his lengthy period of employment with the employer, but I did not detect any attempt on his part to mislead the court or to embellish the severity of the particular injuries sustained by him.
54The defendant does not dispute that Mr Guthrie had sustained compensable injuries dating from approximately 2002. Additionally, there is no dispute that the medical records show various attendances in relation to back pain over many years up until Mr Guthrie resigned his employment in August 2015. I note Mr Guthrie’s reference to injuring his back whilst lifting his grandchild in February 2014, which is set out specifically in his first affidavit.[62]
[62]Exhibit A, p 15 [13] – [14]
55The specific issues raised by Mr Miles on behalf of the defendant require the court to identify the nature and extent of Mr Guthrie’s work-related injury and then to assess the consequences in accordance with the statutory requirements. The plaintiff carries the onus of satisfying the court, both as to the nature and extent of work-related injury and the extent of consequences said to justify a grant of leave.
56Mr Miles relied upon the opinion of Mr Siu to the effect that the work‑related incidents sustained by Mr Guthrie had resulted in an exacerbation of his back condition, but:
“Although he has suffered exacerbations and significantly in 2014, his present symptoms (relate) predominantly from age-related degenerative lumbar spondylosis.”[63]
[63]Exhibit 1, p 25
57Mr Miles was critical of the absence of any real support from Mr Guthrie’s treating general practitioners. The two reports relied upon from the Mediq Wallan Medical Clinic were authored by Dr Zia who did not start seeing Mr Guthrie until 31 May 2015. Mr Miles submitted that these reports did little more than refer to earlier records. Further, Mr Miles noted that the most recent general practitioner, Dr Rathore from the Nexus GP Super Clinic in Wallan, states that Mr Guthrie had first been seen by him on 27 December 2017. Further, there had been little, if any, treatment since Dr Rathore’s last consultation on 16 April 2019.
58Mr Miles was also critical of the medico legal opinion from Mr Awad reaching a conclusion of aggravation of spondylosis in the absence of any significant examination findings.
59Mr Czarnota accepted that the case relied upon Mr Guthrie proving that his underlying condition had been aggravated in the sense that it caused a symptomatic change resulting in serious consequences. There was no evidence of any symptomatic back condition prior to the initial incident of Mr Guthrie having a slip on stairs in 2002.
60Mr Czarnota accepted that there was limited evidence from the treating doctors, but submitted that this was largely due to the fact that Mr Guthrie had demonstrated considerable stoicism, particularly evidenced by the fact that he had returned to work in 2016 notwithstanding his ongoing back problems.
61I have no difficulty with the proposition that Mr Guthrie suffers from age-related degenerative changes in his spine. Nevertheless, the totality of the medical evidence accepts that there have been specific aggravations during the course of his employment. Additionally I am satisfied that the nature of his employment with the employer involved heavy and repetitive activities impacting his spine. The evidence of the plaintiff, which I accept, is consistent with a worsening of Mr Guthrie’s back condition leading to his resignation in August 2015.
62I also accept that Mr Guthrie has displayed a considerable degree of stoicism leading to an absence of frequent complaints to his treating medical practitioners over the years. Accepting Mr Guthrie’s evidence, I am not persuaded that the point made by Mr Miles concerning the absence of meaningful support from his current and previous general practitioners is decisive in the present case.
63I also note that while Mr Siu expresses the opinion in 2022 that Mr Guthrie’s current symptoms relate predominantly from age-related degenerative lumbar spondylosis, he nevertheless accepts that the work-related incidents between 2001 and 2014 were consistent with an exacerbation of that condition.
64The opinion of Mr Awad in May 2022 to the effect that Mr Guthrie’s employment as a machine operator “has most likely been a dominant contributing factor to the aggravation of his lumbar spondylosis”[64] is a more appealing analysis of Mr Guthrie’s current low back condition. It is consistent with Mr Guthrie’s own description of his symptoms and takes into account the general heavy and repetitive nature of the employment in addition to the specific episodes of aggravation between 2001 and 2014.
[64]Exhibit A, p 40
65Mr Awad’s conclusion is also consistent, in my view, with the ongoing progression of symptoms described by Mr Guthrie since at least 2014. Mr Guthrie accepted in cross-examination that certain aspects of his work in recent years, such as standing for long periods of time or picking up bollards and signage, had also impacted on his back condition.
66I accept that the general heavy and repetitive nature of Mr Guthrie’s employment with the employer, together with the specific aggravations, have caused an aggravation of underlying degenerative lumbar spondylosis and such a condition continues to be a cause of adverse consequences for him.
67In terms of the assessment of the consequences flowing from the injury, I am satisfied that whilst there was in all probability some degenerative condition present in Mr Guthrie’s spine, he first experienced significant spinal symptoms following the slipping incident occurring in 2001 or 2002. As a matter of probability those symptoms waxed and waned, but were further aggravated both due to the nature of the duties and specific aggravations up until Mr Guthrie ceased work for the employer in 2015.
68In order to be granted leave Mr Guthrie must satisfy the court that the adverse consequences resulting from his back injury as at July 2022 are to be regarded as serious when compared to a range or spectrum of possible impairments or losses so as to be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[65] Under the present legislative framework the consequences must also be assessed as permanent, being likely to persist for the foreseeable future. In my view there is no real issue with permanency in the present case given the findings I have made as to the persistence of work-related symptomatology and the presence of established spinal degenerative changes.
[65]Humphries & Anor v Poljak [1992] 2 VR 129
69Mr Guthrie’s application for leave relies upon injury occurring over the course of employment. Whilst there are specific incidents occurring during that period, no issue requiring the plaintiff to disentangle the consequences of any particular episode arises. The present application is not one akin to Lu v Mediterranean Shoes[66] where it was sought to impermissibly combine the consequences of two separate and distinct injuries for the purpose of obtaining leave.
[66]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
70The adverse consequences resulting from the back injury were set out in some detail in Mr Guthrie’s two affidavits. The adverse consequences could broadly be described as those of pain, interference with domestic activity and interference with sports or recreational activities. The sporting activities involved golf, which he had ceased shortly prior to 2014, basketball, which had last been played around 2012 and attendance at a gym until the early months of 2015. Mr Guthrie is 67 years of age. I accept that the loss of these sporting activities would be of some consequence to him, but collectively they could not fairly be assessed as being consequences of more than mild to moderate severity.
71Further, accepting his evidence concerning domestic and other recreational activities, I note following cross-examination that his long-term hobby of working on cars and motorcycles had not occurred for some “ten years plus”[67] as at the date of the hearing. I also note Mr Guthrie’s agreement in cross-examination with the broad proposition that he was doing less and less around the house over the years. Once again these consequences could not individually satisfy the statutory test for leave.
[67]T 29, L 4-14
72Additionally, the evidence given by Mr Guthrie concerning his employment since 2016 leads to a conclusion that the work he has been doing, particularly in council employment, is better paid and of a lighter nature than that he had previously performed as a machine operator for the employer. It was clear from Mr Guthrie’s evidence that he enjoys going to work. Fortunately that activity is still available to him. Unlike some cases where the loss of a particular occupation resulting from injury is a significant consequence in terms of enjoyment of life, such a conclusion could not be reached in the present case.
73The consequences of pain are in my view of greatest significance in terms of the present application. I accept Mr Guthrie’s evidence that his pain is currently of a more constant nature, noting that he did not accept the proposition put to him in cross-examination that it would “come and go a bit”.[68] It is clear Mr Guthrie has displayed considerable stoicism, particularly in terms of persisting with subsequent employment which continues as at the date of this application. He nevertheless requires significant medication commencing with Panadol Osteo in 2014 and currently requiring doses of Lyrica, Celebrex and Panadol. Additionally, I accept that his sleep has been affected by his ongoing back pain, and I further accept that his enjoyment of life, including interactions with his grandchildren, have been limited by reason of his ongoing pain.
[68]T 25, L 29-30
74I further accept the evidence from Mr Guthrie’s wife, Faye, in her affidavit and in particular her observations of his apparent pain and changes to his recreational and domestic activities.
75Further, the recent neurosurgical opinion from Dr Awad, which I accept, is that his prognosis:
“... is such that he is likely to suffer the ongoing consequences of this injury in the form of pain and disability into the foreseeable future. It is unlikely that he will require any surgery at this stage, but he is likely to require ongoing pain management and assistance.”[69]
[69]Exhibit A, p 41
76I note Mr Siu describes Mr Guthrie’s condition “in medical terms” as “intermittent exacerbation of lumbar spondylosis.”[70] He also states that noting Mr Guthrie was working full-time:
“... I am slightly surprised that he is claiming common law damages as the WPI of 5% is already a generous assessment.”[71]
[70]Exhibit 1, p 24
[71]Exhibit 1, p 24
77While such comments may have medical significance, I accept Mr Guthrie’s evidence in this case that he has suffered, and continues to suffer, back pain which is of far greater frequency and severity than would justify the descriptor of “intermittent exacerbation.”
78Accepting Mr Guthrie’s evidence as to the extent and frequency of his symptoms, I prefer the opinion of Dr Awad to that expressed by Mr Siu.
79The guidance provided to the court in assessing the extent of pain consequences is set out in Haden Engineering v McKinnon[72] On the basis of the matters set out by the Court of Appeal, I am satisfied that the present consequences in terms of pain suffered involving interference with regular sleep, the requirement for frequent medication and the experience of pain at least on a daily basis, tends to a conclusion that the pain and suffering consequences, when compared to a range of other possible consequences, satisfies the narrative test.
[72]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
80I am satisfied that Mr Guthrie’s pain and suffering consequences resulting from the aggravation of an underlying degenerative spinal condition can fairly be described as at least very considerable and more than significant or marked.
Conclusion
81I am satisfied that Mr Guthrie has made out his application for leave. I propose to grant leave to the plaintiff to claim damages at common law on the basis that the injury sustained to his back in the nature of an aggravation of lumbar spondylosis in multiple incidents during the course of his employment between 20 October 1999 and 26 August 2015 on the basis that he has sustained a serious injury as defined in s 325 of the Workplace Injury Rehabilitation and Compensation Act 2013.
82I grant leave to the parties to apply in respect of the formal orders sought and in relation to the question of costs.
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