Hanna v Victorian WorkCover Authority
[2019] VCC 901
•1 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05866
| GEORGES HANNA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 June 2019 | |
DATE OF JUDGMENT: | 1 July 2019 | |
CASE MAY BE CITED AS: | Hanna v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 901 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the thoracolumbar spine – whether the injury had resolved – injury complicated by a secondary psychiatric disorder – whether a need for disentangling – concurrent injuries to the knees – whether the consequences of the injuries to the knees contributed to the claimed pain and suffering and loss of earning capacity consequences – identification of the impairment caused by the thoracolumbar spine and the knees – whether the pain and suffering consequences were “serious” – whether the loss of earning capacity consequences were “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted for pain and suffering consequences and loss of earning capacity consequences.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell SC with Mr B Anderson | Slater and Gordon |
| For the Defendant | Mr R H Stanley | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff is a thirty-seven-year-old married man who suffered a compensable injury to his spine in the course of and within the scope of his employment with Betta Foods Pty Ltd (“the employer”) as a result of the heavy nature of his work duties.
2 The plaintiff submitted that he has suffered a permanent impairment of the function of his spine which has resulted in pain and suffering and loss of earning capacity consequences which are “serious”.
3 Mr D Purcell QC and Mr B Anderson of counsel appeared for the plaintiff. Mr R H Stanley appeared for the defendant.
The Plaintiff’s injury and treatment
4 The plaintiff commenced employment as a labourer with the employer in 2007. He described the heavy nature of his work duties in his first affidavit sworn 16 August 2017 as follows:
“5. My work at the factory involved a large amount of heavy and repetitive lifting. I was lifting heavy bags of icing sugar which were 25 kilograms. I would lift these bags off a pallet, carry them up stairs, and then pour the contents of the bags into a mixing machine. I would also lift, carry and empty heavy buckets of syrup and heavy packets of fat. I would also lift heavy buckets full of mixture up in to the machines with a coworker.”[1]
[1]Plaintiff’s Court Book (“PCB”) 17
5 The plaintiff began to experience soreness in his spine during 2012. He saw Dr Francis, general practitioner, in September 2012 and complained to him of ongoing lower back pain. Dr Francis referred the plaintiff to Dr Karlov, physician, for treatment. In his letter of referral to Dr Karlov dated 6 February 2013, Dr Francis recorded that the plaintiff had been suffering lower back pain for more than a year, with radiation of pain into both legs which was not responding well to analgesia. He referred to an x-ray which demonstrated mildest lumbar disc degeneration presumably in the plaintiff’s lower back.[2]
[2]PCB 53
6 It is not clear when the plaintiff first saw Dr Karlov. He provided a report dated 7 September 2015 to the then solicitors for the plaintiff without identifying when he first saw the plaintiff, the number of occasions he saw him and when he last saw him. He referred to other treatment provided by Dr Tahir, rheumatologist, so I will next refer to Dr Tahir’s treatment before returning to Dr Karlov’s opinion.
7 The plaintiff stopped seeing Dr Francis at some stage and then commenced seeing Dr Al Waali, general practitioner, who referred him to Dr Tahir. It would appear that the plaintiff first saw Dr Tahir in about August 2013. At the time when the plaintiff first saw him he was provided with an MRI scan which I assume is the MRI scan commissioned by Dr Karlov undertaken on 30 May 2013.[3] The evidence of Dr Tahir’s treatment of the plaintiff comprises three courtesy letters which he wrote to Dr Al Waali. None of them are particularly edifying.
[3]PCB 46
8 In the first letter dated 21 August 2013, Dr Tahir considered that the plaintiff demonstrated tenderness over his lower lumbar spine and mid thoracic area, noting that the plaintiff had undertaken heavy work. It would appear that he considered that the plaintiff had osteoarthritis in his spine which led him to recommending to the plaintiff to use a variety of analgesics and anti-inflammatory medication and to suggest a cortisone injection and exercise and other complementary medical treatment.[4] His subsequent letters dated 19 December 2014[5] and 19 May 2016 do not add very much.
[4]PCB 54
[5]PCB 55
9 The plaintiff described having four or five injections during 2014 and 2015 into his spine on the advice of Dr Tahir.[6] He was also referred by Dr Tahir for a further MRI scan which was taken on 30 April 2015.[7] The plaintiff did not describe whether he benefited in any way from the four or five injections. He was also treated by the prescription of medication. It is not clear to me who prescribed that medication, but in any event, he was prescribed Avanza, which is an antidepressant, in 2013, and Lyrica in early 2014, which is used to treat nerve related pain.[8]
[6]PCB 18. He actually had three such injections.
[7]PCB 50
[8]PCB 18-19
10 Dr Karlov considered that there was a causal connection between the plaintiff’s work and the onset of his spinal pain. He considered that the plaintiff had no capacity for work at that time. He noted that the plaintiff was having physiotherapy and that the injections had not given him any real benefit. He added that he considered that the plaintiff needed to continue with physiotherapy and the use of medication.[9]
[9]PCB 65-67
11 After Dr Tahir and Dr Karlov ceased treating the plaintiff, Dr Al Waali continued to treat him. He provided three reports dated 6 March 2015,[10] 19 October 2015[11] and 7 August 2018.[12] Dr Al Waali’s opinion regarding whether the plaintiff suffered an injury, whether it was work related, and his prognosis relevant to the plaintiff’s capacity to work in relation a further treatment is consistent with the opinions of Dr Tahir and Dr Karlov. He considered that the plaintiff was significantly impaired in his capacity to engage in activities of daily living, and that he had no capacity for work as at the time he wrote his third report dated 19 October 2015.[13] Although his third report is exquisitely brief and rather cryptic, he made no reference to having changed his opinion on any of the issues he had earlier addressed.
[10]PCB 57-58
[11]PCB 59-60
[12]PCB 61. The report is undated. The date nominated by the plaintiff is the date upon which it was received by his present solicitors.
[13]PCB 59-60
12 There is a significant hiatus in the plaintiff’s medical treatment. He stopped seeing Dr Al Waali in September 2016[14] and did not resume seeing him until about August 2018.[15] In the interval before seeing Dr Al Waali in August 2018, the plaintiff said that he was using Lyrica, Panadol Osteo and volatile for pain relief. The source of the Lyrica was his mother, who was in receipt of prescriptions for Lyrica.[16]
[14]Transcript 11-12
[15]Exhibit 2, comprising an extract of the clinical notes of Dr Al Waali commencing with the consultation on 2 August 2018
[16]Transcript 29-32
13 Dr Al Waali’s clinical notes commencing with the consultation on 2 August 2018 reveal that the plaintiff complained of back pain. He was seen on a number of occasions before 10 August 2018 when Dr Al Waali referred him for pain management on 10 August 2018.[17]
[17]Exhibit 2
14 The plaintiff was referred to Advance Healthcare for pain management. He was initially assessed on 19 September 2018 and was considered an appropriate candidate for pain management. Mr Richards, physiotherapist, provided a report dated 31 May 2019 summarising the pain management program undertaken by the plaintiff.[18]
[18]PCB 170-174
15 The plaintiff completed an eight-week multidisciplinary network pain management program.[19] The plaintiff was assessed and obtained physiotherapy and psychological treatment and came under the care of Dr Hamza, who he describes as a pain management specialist.[20] The plaintiff was diagnosed as having a thoracolumbar pain condition of moderate severity, deconditioning and a fear of activity and suffering further injury. There were signs of marked central sensitisation. Additionally, he was provisionally diagnosed as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Mr Richards considered that the plaintiff obtained functional improvement, and by adhering to the advance he was given, was able to increase his tolerances, and I assume that means physical tolerances, and his understanding of pain. Mr Richards also considered that the plaintiff had come to understand his medical condition which led to an improvement in his mood and anxiety.
[19]The program was also described as 12-week program in the body of Mr Richards’ report at PCB 173
[20]PCB 31. Dr Hamza is referred to in the report provided by Mr Richards.
16 Mr Richards concluded that the plaintiff did not have the capacity to return to his pre-injury work with the employer, and he considered that to be permanent. He considered that he had a physical capacity for work with the following restrictions:
· “Lifting limited to 8kg at waist height and 4kg below waist height and above shoulder height (occasional lift limit)
· No repeated lifting, bending, stooping, squatting
· Standing limited to 30 minutes
· Sitting limited to 30 minutes
· Part time work (12-16 hours per week) due to ongoing pain and sleep limitation such that he is getting less than 4 hours sleep.”[21]
[21]PCB 174
17 Mr Richards also considered that “it is possible” that the plaintiff might experience further functional improvement over the following three to six months after the cessation of the pain management program. Otherwise he did not consider that the plaintiff required any further medical treatment.
18 I will now summarise the plaintiff’s evidence relevant to what he says are the pain and suffering and loss of earning capacity consequences of the impairment of the function of his spine.
The Plaintiff’s evidence
19 The plaintiff swore three affidavits in which he gave a summary of the medical treatment he obtained after he suffered injury. He stopped working in May 2013. He made an attempt to return to work in May 2014. He worked for one week, but was unable to continue because of an increase in pain in his spine. He made a further attempt to return to work on part-time light duties in July 2014. He worked for about four weeks. He was assigned to work making up boxes. He says that the bending and twisting involved was too much for him to cope with, resulting in him stopping work altogether in July 2014. He has not worked since.[22]
[22]PCB 18-19
20 He described the problems resulting from the impairment of the function of his lower back as follows:[23]
[23]PCB 20-21, 24, 30-31
· Pain in the middle and lower parts of his back which is there most of the time and which varies in its intensity.
· The pain in the middle of his back is worse than the pain in his lower back.
· The pain is worsened with activity. It worsens if he sits or stands for any length of time. The pain is relieved by lying down flat on his back.
· Bending and twisting can cause sharp pain. He avoids heavy lifting.
· Walking, standing or driving for extended periods of time worsens the pain.
· The pain interferes with his sleep and results in him waking three or four times a night, and on some nights he cannot sleep at all.
· He uses Lyrica, Panadol Osteo, and Voltaren for pain relief, and Duloxetine to help him sleep.
· He struggles with light chores around his home and garden.
· He has difficulty lifting up his daughter and playing with her.
· He stopped going to the gym.
21 The plaintiff worked for the employer as a labourer from 2007 after coming to Australia in 2006. There is no evidence to suggest that he has worked in any other form of employment other than as a labourer. He said that he does not believe he could work consistently or in a full-time job. He added that his capacity to return to suitable employment is reduced because his facility with the English language is limited, and he has no qualifications except experiences as a labourer.[24]
[24]PCB 25 and 30
The medico-legal assessments
22 The plaintiff has been assessed by a very large number of medical practitioners on a medico-legal bases. I propose to provide a short summary of the essence of the opinions of each of these medical practitioners, focused on their diagnosis, capacity for work and prognosis.
23 Mr Shannon, orthopaedic surgeon, examined the plaintiff for the defendant on 8 July 2013. He provided a report dated 10 July 2017. He concluded that the plaintiff had suffered mechanical back pain with some vague lower limb symptoms which had resolved. He diagnosed a soft tissue injury which he considered had resolved.[25]
[25]DCB 4-9, and a supplementary report on the question of the resolution of the injury dated 14 November 2013 at DCB 11-12
24 Dr Ho, occupational physician, examined the plaintiff for the defendant on 29 January 2014. He provided a report dated 29 January 2014. He considered that the plaintiff had suffered a soft tissue strain to his lower back from which he had most likely recovered, and he anticipated that the plaintiff would completely recover.[26] Subsequently, Dr Ho undertook a worksite assessment on 13 February 2014, and provided a report dated 15 February 2014. He considered that the plaintiff was fit for his pre-injury duties based upon a graduated return to work.[27]
[26]DCB 13-20
[27]DCB 21-24
25 Dr Barton examined the plaintiff for the defendant on 25 March 2014 and 3 December 2014. He provided three reports dated 26 March 2014, 7 July 2014 and 4 December 2014. He considered that the plaintiff had suffered a mild mechanical lower back problem complicated by a degree of illness behaviour and motivational factors. He also considered that the plaintiff is fit for suitable work with restrictions on lifting.[28] Dr Barton was provided with a report of Dr Ho. He did not agree with Dr Ho that the plaintiff’s injury had fully resolved.[29]
[28]DCB 25-29 and 32-36
[29]DCB 30-31
26 Dr Boffa, occupational physician, examined the plaintiff for the defendant on 10 August 2015. He provided a report dated 10 August 2015. He concluded that the plaintiff had suffered work-related mechanical lower back pain without radiculopathy.[30]
[30]PCB 84-88
27 Mr Carey, orthopaedic surgeon, examined the plaintiff for the defendant on 25 January 2016. He provided a report dated 25 January 2016. He concluded that the plaintiff was suffering from thoracic and lumbosacral area spinal pain without radiculopathy. He was not able to make a diagnosis.[31]
[31]PCB 89-96
28 Dr Slesenger, occupational physician, examined the plaintiff at his request on 27 June 2017. He considered that the plaintiff was suffering from a mechanical injury to his thoracic and lumbar spine and also a Chronic Pain Disorder.
29 In relation to the physical injuries, he considered that the plaintiff was precluded or restricted in relation to employment or activities involving bending, lifting, twisting or stooping; pushing, pulling or lifting; kneeling, squatting or crouching; prolonged sitting, walking or standing; walking up inclines or down declines, and using steps or ladders. He added that he would have a residual restriction necessitating avoiding pushing, pulling, carrying or lifting weights over 5 kilograms; repetitive bending or twisting; adopting prolonged static postures and driving for more than 30 minutes. He considered that taking into account a number of background factors, which I will return to later in these reasons, the plaintiff would have difficulty returning to work in an open job market. He considered that his prognosis must be guarded.[32]
[32]PCB 98-110
30 Mr Jones, orthopaedic surgeon, examined the plaintiff for the defendant on 21 November 2017, 8 May 2018 and 18 February 2019. He provided three reports dated 21 November 2017, 22 November 2017 and 14 March 2018. Mr Jones was unable to establish any significant orthopaedic condition affecting the plaintiff’s thoracic or lumbar spine. He considered that there were significant functional symptoms in the plaintiff’s presentation. On the basis of those conclusions, he was unable suggest any occupational restrictions which were appropriate for the plaintiff.[33] He was not convinced that there are any psychogenic elements associated with the plaintiff’s physical symptoms.[34]
[33]DCB 49-55
[34]PCB 98-110, and in particular, PCB 123-134
31 Dr Mutton, occupational physician, examined the plaintiff for the defendant on 15 November 2017 and 18 April 2018. He provided four reports dated 15 November 2017, 22 February 2018, 18 April 2018 and 8 May 2018. He considered that because of the vagueness of the plaintiff’s symptoms, his reasonable range of motion, and in the absence of any other abnormalities, that the plaintiff was suffering from chronic pain, which he also described as chronic low back pain. On the second occasion he examined the plaintiff, he considered that the plaintiff had suffered minimal loss of function in his lower back.[35]
[35]DCB 61-65 and 69-72
32 Mr Miller, orthopaedic surgeon, examined the plaintiff at his request on 20 April 2018. He provided a report dated 23 April 2018. He considered that the plaintiff had suffered a musculoligamentous strain to his thoracolumbar spine and an aggravation of degenerative disease in his spine, and that he had developed a Chronic Pain Syndrome which was influencing his clinical presentation. He considered that the plaintiff would have difficulty engaging in work involving repetitive bending, repetitive lifting, lifting of weights more than 5 kilograms, and would need to shift his posture on a regular basis. He added that he considered that the development of the Chronic Pain Syndrome would impact upon his capacity to return to work.[36]
[36]PCB 135-142
33 Mr Blombery, physician, examined the plaintiff on 22 March 2018 at his request. He provided a report dated 7 June 2018. He considered that the plaintiff had previously asymptomatic mild degenerative changes in his thoracic and lumbar spine rendered symptomatic by his work. He considered that the plaintiff had also developed a component of a non-specific Pain Syndrome describing it as sensitisation of pain pathways, also described as central sensitisation both of which he considered to be an organic disorder of pain nerve pathways. He considered that with retraining, the plaintiff may be able to engage in light duties not involving lifting of more than 2 kilograms. He considered his prognosis to be poor.[37]
[37]PCB 155-160
34 Mr Kossman, orthopaedic surgeon, examined the plaintiff on 22 January 2019 at his request. He provided a report dated 22 January 2019. He considered that the plaintiff was suffering from lumbar spondylosis, with a disc bulge at L5‑S1 and mild facet joint degeneration. He considered that the plaintiff was restricted in his capacity to bend, lift, twist or stoop; push, pull or lift; kneel, squat or crouch; engage in prolonged sitting, walking or standing; walk up inclines or down declines, and use steps or ladders. He considered that the plaintiff had a capacity to perform suitable employment on a part-time basis. He considered that his prognosis was guarded.[38]
[38]PCB 161-169
35 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 2 April 2019 for the defendant. He provided two reports dated 8 April 2019 and 18 April 2019. He considered that the plaintiff could have sustained a soft tissue injury to his lower back which may have involved some musculoligamentous damage. He considered that the plaintiff’s symptomology was greater than he would have expected to see in an injury within that range. He considered that the majority of the plaintiff’s ongoing symptoms related to non-organic features; however, he considered that he would have difficulty carrying out regular heavy physical work or work that involved a lot of lifting, bending and manoeuvring. He expected he would note intermittent lower back pain, but would otherwise be able to engage in a wide range of employment, leisure and domestic pursuits.[39]
[39]DCB 82-87
36 Dr Baynes, occupational physician, examined the plaintiff for the defendant on 11 April 2019. He provided two reports dated 13 May 2019 and 16 May 2019. He considered that the plaintiff was suffering from a Chronic Pain Syndrome associated with chronic lower back pain with occasional referred pain into his legs, and he noted that examinations suggested illness behaviour and centralisation of pain. He considered that the plaintiff was fit for alternative work with a lifting restriction of no more than 7 kilograms with no repetitive lifting from below knee height to above shoulder height, and constraints relevant to postures of the back and repetitive bending.[40]
[40]DCB 90-96
A synthesis of the medical evidence
37 I have considered the plaintiff’s evidence, the evidence of the treating medical practitioners, and the evidence of the medico-legal assessors, and have reached a number of conclusions favourable to the plaintiff.
38 Firstly, I accept that the plaintiff did suffer an injury to his thoracolumbar spine which resulted from the heavy work which he undertook with the employer. The plaintiff’s evidence that he firstly experienced soreness in his spine during 2012 is supported by the evidence of Dr Francis, and the diagnosis of thoracic lumbar injury is supported by the evidence of Dr Al Waali, Dr Tahir and Dr Karlov. Importantly, the plaintiff was treated by the prescription of analgesic and anti-inflammatory medication, three cortisone injections into his spine, and physiotherapy during the time he was treated by Dr Al Waali, Dr Tahir and Dr Karlov. It is clear enough to me that they considered that the complaints made by the plaintiff of injury to his thoracolumbar spine were work related.
39 Secondly, a number of the medico-legal assessors also accept that the plaintiff suffered an injury to his thoracolumbar spine. Mr Shannon and Dr Ho consider that the plaintiff had suffered a soft tissue injury which had resolved. Dr Barton, Dr Boffa, Dr Slesenger, Dr Martin, Mr Miller, Dr Blombery, Mr Kossman, Mr Dooley and Mr Richards considered that the plaintiff had suffered an injury which they described differently, but what is important is that they did not share the opinion of Mr Shannon and Dr Ho that at the time when they examined the plaintiff, the injury they diagnosed had resolved. Mr Carey and Mr Jones were unable to make a diagnosis, but they did not go so far as to say that he had not suffered an injury. There is, therefore, a body of medical evidence which supports the plaintiff’s case that he did suffer an injury to his spine which has persisted.
40 Thirdly, a number of the medical assessors consider that the plaintiff’s presentation when examined has been and is complicated by what I will describe as psychological factors: Dr Barton, illness behaviour and motivational factors; Dr Slesenger, a Chronic Pain Disorder; Mr Jones, significant functional symptoms; Dr Mutton, chronic pain; Mr Miller, Chronic Pain Syndrome; Mr Dooley, non-organic factors, and Dr Baynes, Chronic Pain Syndrome. There were others who did not consider that the plaintiff’s presentation suffered from that complication: Dr Francis, Dr Al Waali, Dr Tahir and Dr Karlov, at an early time in the plaintiff’s treatment, and no mention of that complication by Mr Shannon, Dr Ho, Dr Boffa, Dr Blombery and Mr Kossman. The only reference made to it by Mr Kossman was to suggest that the plaintiff be referred to a psychiatrist for treatment of depression.
41 Fourthly, I think one of the keys to understanding whether the plaintiff continues to suffer from an injury is Mr Richards. The defendant submitted that Mr Richards is a physiotherapist whose opinion should be considered to be subordinate to other medical assessors who have medical qualifications more directed to orthopaedic diagnosis and occupational opinion. I do not agree. Mr Richards is the author of the report of Advance Healthcare, but it is clear to me that when the plaintiff completed the pain management program, Mr Richards was part of a multi-disciplinary approach. He described the treatment recommendation in the following way:
“Mr Hanna was recommended to attend a multidisciplinary pain management program 2-3 times a week for 8-12 weeks. This program would provide treatment targeting the specific barriers to recovery as listed above.
Multidisciplinary pain management was recommended as per the International Association for the Study of Pain guidelines (attached) and included medical, physiotherapy and psychological sessions in individual and group format.”[41]
[41]PCB 172
42 Although only Dr Hamza was referred to in the body of Mr Richards’ report, it is clear enough to me that his report is a summary of the contribution made by each of the individuals within the medical, physiotherapy and psychological disciplines brought into play in providing the plaintiff with pain management.
43 The multidisciplinary approach resulted in a diagnosis of the plaintiff’s injury described as a moderately severe thoracolumbar pain condition, and accompanying deconditioning and fear of activity and pre-injury, and signs of marked sensitisation. He was also diagnosed provisionally with an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
44 At the time of the plaintiff’s discharge, Mr Richards reported that it was likely that the plaintiff’s functional capacity would improve, and he added that even with that improvement, the plaintiff was likely to experience at least a moderately severe lumbar condition on an ongoing basis, causing at least moderate functional limitations in the longer term. He was asked to exclude any psychological or psychiatric condition when describing the plaintiff’s capacity for suitable employment. He considered that he had the physical capacity to lift up to 8 kilograms at waist height and 4 kilograms below waist height and above shoulder height; no repeated lifting, bending, stooping or squatting; standing limited to 30 minutes; sitting limited to 30 minutes and part-time work of 12 to 16 hours per week.[42]
[42]PCB 174
45 Even if there is some merit in the defendant’s submission that Mr Richards’ opinion is given from the perspective of a physiotherapist only, his opinion is nonetheless consistent with at least the opinions of Dr Slesenger, Mr Kossman and, to some degree, with the opinion of Mr Dooley, that the plaintiff has a reduced capacity to return to suitable employment and requires the imposition of work restrictions on a return to suitable employment.
46 My analysis of the medical evidence has led me to conclude that the plaintiff did suffer a physical injury to his spine, and probably to his thoracolumbar spine. There is no doubt that there were psychological factors which were also at play which have been variously described as I have noted above; however, I am not persuaded that there is a need for the disentangling which the defendant submitted I must undertake to disentangle the psychological consequences of the physical injury from the physical consequences of it.
47 The defendant relied upon the numerous references to the psychological factors in the opinions of the medical assessors. What that did not include was the plaintiff’s evidence which, in effect, is that it is his physical injury which was responsible for his pain and suffering and loss of earning capacity consequences. Under cross-examination, he admitted to improvement of his psychological state through the pain management program. He said that as a result of it, he was not as scared to engage in the physical exercise program as he used to be, but after pushing himself, he said that the pain he experiences is still the same. I infer by referring to it being still the same that he meant the same as it had been in the past.[43]
[43]Transcript 26-27
48 This evidence combined with the following – Dr Francis, Dr Al Waali, Dr Tahir and Dr Karlov treated the plaintiff for a physical injury without any significant reference to any psychological factors, and Mr Shannon, Dr Ho, Dr Boffa, Dr Blombery and Mr Kossman made no reference to any such complication. So there is a body of medical evidence which supports the plaintiff’s submission that his symptoms have a substantial organic basis. Ultimately, that is the conclusion reached by the more recent opinions of Mr Kossman and Mr Richards. I find their conclusions to be more persuasive, particularly that of Mr Richards, who was able to make a diagnosis after understanding the plaintiff’s psychological problems and being able to identify them in contrast to the symptoms which were physically based.
49 I see no basis for disentangling, and I am fortified in reaching that conclusion by what was said in Meadowsv Lichmore Pty Ltd,[44] that where the consequences are substantially, mainly or predominantly referable to an organic cause, then there is no call for a process of disentangling.
[44][2013] VSCA 201 at paragraphs [21]-[24]
Pain and suffering
50 The defendant did not cross-examine the plaintiff on any of the pain and suffering consequences which the plaintiff says have resulted from the injury to his spine. The plaintiff relied upon that failure to directly challenge those consequences as a deficiency in the manner in which the defendant chose to run its defence of the plaintiff’s application. Whilst there is something in the plaintiff’s submission, it is apparent to me that the defendant made a specific attack on whether the plaintiff had suffered an injury to his spine; whether the injury was of any substance, and whether the injury could result in the extent to which the plaintiff claimed it had any consequences of any material kind. I think that attack encompassed a broad attack on the whole of the plaintiff’s case.
51 On the basis that I accept the body of medical evidence I have referred to, that the plaintiff suffered a spinal injury, and in particular, of the gravity and with the consequences referred to by, for example Mr Kossman and Mr Richards, I am fortified in accepting the plaintiff’s evidence that he has suffered each of the consequences which I have summarised in paragraph 20 above.
52 The conclusion I have reached is that the pain and suffering consequences contended for by the plaintiff are permanent, and result in an impairment of function of his thoracolumbar spine which is “serious”. There are very few aspects of the plaintiff’s life which are unaffected by the impairment of the function of his thoracolumbar spine. He suffers pain which he has endured for a significant period of time since 2012 and which is likely to persist for the foreseeable future. His mobility is impaired. His sleep it pattern is impaired. He requires the use of reasonably strong painkilling medication. He is impaired in his ability to engage in simple activities of a domestic nature. All of these consequences are certainly more than significant and more than marked and are at least very considerable when compared with like impairments.
Loss of earning capacity consequences
53 The defendant submitted that the plaintiff is fit for suitable employment full time. That submission was based upon the medical evidence which was most favourable to the defendant, and on the basis that if the plaintiff was only faced with the physical consequences of the impairment of the function of his thoracolumbar spine, then there was no impediment to him returning to suitable employment full time with suitable physical restrictions on the tasks he would be required to perform.[45]
[45]The proposed forms of suitable employment are referred to in the report of Recovre dated 19 February 2018 at DCB 99-126 identifying suitable employment of order picker at a cosmetics’ distributor, picker at a clothing distribution warehouse, and despatch packer at a sporting wear business which were favourably commented upon by Dr Baynes at DCB 95
54 The plaintiff submitted that his pain and suffering consequences demonstrate that his capacity to function is very much reduced, and more particularly, very much reduced relevant to a capacity to return to suitable employment. There is strong support for that conclusion, for example the opinions of Mr Kossman and Mr Richards, as well as the opinions of other medical assessors who favour the view that the plaintiff is probably fit for suitable employment so long as there are suitable physical restrictions on the tasks he would be required to perform.
55 The plaintiff is correct in identifying the fact that among the opinions of the medical assessors who consider that the plaintiff is probably fit for suitable employment, the only assessor who provided an opinion of what hours the plaintiff could probably work is Mr Richards. He considered that the plaintiff was limited to 12 to 16 hours, with a number of physical restrictions on the task that he would be required to perform.
56 I accept Mr Richards’ evidence, primarily because he was part of a multidisciplinary approach to the plaintiff’s pain management. The purpose of the pain management was to rehabilitate the plaintiff and return him to a better level of functioning. The plaintiff agrees that he benefited by obtaining improvement in his psychological state.
57 The conclusion I have reached is that the plaintiff’s reduced capacity for part-time suitable employment with physical restrictions on the task that he would be required to perform for 12-16 hours per week is permanent and has resulted in an impairment of function of his thoracolumbar spine which is “serious”.[46] It stands to reason that being able to work 16 hours a week is less than half of the plaintiff’s normal working hours and must, therefore, produce a loss of more than the loss required to obtain leave to bring a proceeding to recover damages relevant to a loss of earning capacity. That degree of loss is more than significant and more than marked and at least very considerable when compared with like impairments.
[46]Confirmed by the joint submissions of the plaintiff and defendant dated 14 June 2019
The knee injuries
58 The plaintiff experienced trouble with his knees in 2012 which have persisted.[47] The knee pain worsens with walking and standing for prolonged periods of time. Despite these problems, he said that he was able to handle the knee pain, and that what problems he had did not stop him from working.[48]
[47]PCB 18 and 21
[48]PCB 25
59 The treatment which the plaintiff has obtained for his knee problems is fairly scant, and is to be found in histories in the reports of many of the medical examiners. He has had MRI scans of both knees. He underwent an arthroscopy of his right knee in early 2015.
60 Under cross-examination, the plaintiff said that he continues to have the following problems with his knees: pain; worsening pain on kneeling; occasional locking; instability; swelling; difficulty walking long distances; sometimes difficulty walking upstairs, and difficulty walking downstairs. Despite these problems, the plaintiff said that his knee pain never stopped him from working.[49]
[49]Transcript 38-40
61 The defendant submitted that where there are two different injuries concurrently producing pain and suffering consequences and loss of earning capacity consequences, that it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of trial as a precondition to the task of deciding which of the pain and suffering consequences and loss of earning capacity consequences are attributable to which injury. It submitted that the plaintiff has failed to undertake that task by identifying those consequences attributable to the knees when contrasted with the consequences attributable to the thoracolumbar spine.[50]
[50]Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [24]
62 In making that submission, the defendant relied solely on the evidence given by the plaintiff under cross-examination. At the closure of submissions I carefully read all of the medical reports to determine whether any of the medical assessors commented on the condition of the plaintiff’s knees. Many did, but the overall preponderance of opinion is that the plaintiff’s knee problems are relatively insignificant.
63 The following medical assessors obtained a history of the plaintiff’s knee problems.
64 When the plaintiff was examined by Dr Ho on 28 January 2004, he told him that he had injured his right knee in 2012.[51]
[51]DCB 14
65 When the plaintiff was first examined by Dr Slesenger on 25 June 2017, he told him that he had problems with both knees. On examination, he found that the knee joints were stable.[52] When the plaintiff was next examined by him on 8 May 2018, he told him that he had experienced severe pain in his left knee and was seeing a physiotherapist. On examination, he found that the knee joints were stable.[53] When the plaintiff was next examined by him on 18 February 2019, there was no reference to any knee problem.[54]
[52]PCB 101-102 and 104
[53]PCB 116
[54]PCB 128
66 When the plaintiff was examined by Mr Jones on 21 November 2017, the plaintiff told Mr Jones that he had bilateral knee problems and had surgery on his right knee. Mr Jones noted that he only examined the plaintiff’s right knee, which had a normal range of movement, and that the plaintiff made no mention of any limitations imposed upon him by his knees.[55]
[55]DCB 53 and 57-58
67 When the plaintiff was examined by Mr Miller on 24 April 2018, he told him that he had aching, discomfort and pain in his left knee, and difficulty with kneeling and squatting, and some right knee pain and discomfort. On examination, he found some quadriceps wasting and crepitus of the left knee, and no significant abnormality in the right knee.[56]
[56]PCB 137-138
68 When the plaintiff was examined by Dr Blombery on 22 March 2018, he told him that he had some minor discomfort in his knees.[57]
[57]PCB 156
69 When the plaintiff was examined by Mr Kossman on 22 January 2019, he told him that he suffered pain in both knees and had undergone an arthroscopy on his right knee in early 2015, and a past history of right knee injury in 2011. On examination, it would appear that there was some reduction in flexion, but otherwise no abnormality in either knee.[58]
[58]PCB 161-162 and 164
70 When the plaintiff was examined by Dr Mutton on 15 November 2017, he told him on that he had undergone an arthroscopy in his right knee two to three years previously, and had ongoing pain and discomfort in both knees, with the right knee being more severe. On examination, the only abnormality he found was crepitus on movement in the left knee.[59] After reconsidering the results of his examination of the plaintiff’s knees, he said that it appeared to him that there was little impact by the plaintiff’s knees relevant to the plaintiff’s vocational, social and recreational perspective.[60]
[59]DCB 62, 64 and 67
[60]DCB 68
71 When Mr Dooley examined the plaintiff on 2 April 2019, his only comment relevant to the plaintiff’s knees was that the plaintiff did not have any significant clinical problem with either knee, and his knees would not interfere with his ability to carry out light physical work and clerical time work.[61]
[61]DCB 86
72 When the plaintiff was examined by Dr Barton on 11 April 2019, he told him he had undergone an arthroscopy on his right knee which had not helped him. He also told him that he had undergone physiotherapy on that knee which did not provide him with any benefit. On examination, the only abnormality was tenderness over the anterior and inferior aspects of the patella.[62]
[62]DCB 91 and 92
73 The foregoing represents a summary of the medical evidence relevant to the condition of the plaintiff’s knees and the extent to which they result in pain and suffering consequences and loss of earning capacity consequences for the plaintiff. None of the medical evidence is inconsistent with the plaintiff’s own evidence that he does have some problems with his knees, but it was not his knees which resulted in any incapacity for the work he was undertaking leading up to the time when he suffered injury to his thoracolumbar spine.
74 What I can make of the plaintiff’s evidence and the medical evidence relevant to his knees is that he has some pain in his knees. It would appear that on some occasions it is more pronounced than other occasions, for example he told Dr Slesenger of more severe pain in his left knee on the occasion when he examined him. It is also apparent that his knees cause him some problems with his mobility consistent with what he said under cross-examination. The plaintiff is not having any active treatment for his knees at present. The evidence does not impress me that his knees result in any significant level of impairment, nor do they contribute in any material way to the pain and suffering and loss of earning capacity consequences claimed by the plaintiff.
Conclusion
75 I will grant the plaintiff leave to bring a proceeding for both pain and suffering consequences and loss of earning capacity consequences.
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