Harrison v Victorian WorkCover Authority
[2019] VCC 1370
•2 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04204
| PHILIP ANDREW HARRISON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 March 2019 | |
DATE OF JUDGMENT: | 2 September 2019 | |
CASE MAY BE CITED AS: | Harrison v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1370 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – lumbar spine – pain and suffering and economic loss – capacity to earn
Legislation Cited: Accident Compensation Act 1985, s134AB(e), (f) and (h)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Richter v Driscoll [2016] VSCA 142; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to issue proceedings for pain and suffering and economic loss damages on account of injury to the lumbar spine.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Mr D R J O’Brien | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr R Kumar | Minter Ellison |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Port Phillip Prison as a correctional officer from approximately September 2009 to April 2016, and particularly on 27 April 2012.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests as mandated by s134AB(37) and s134AB(38) of the Act. The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
3 The body function relied upon in this application is the lumbar spine.
4 The plaintiff relied upon two affidavits, sworn 21 February 2018 and 5 March 2019, and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
5 The impairment of a body function must be permanent, in the sense that it is likely to continue into the foreseeable future. The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity. By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be described at the date of the hearing as being more than significant or marked and as being at least very considerable.
6 I am required to consider the consequences to this particular plaintiff viewed objectively arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function. Here, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more both at the date of hearing and permanently thereafter. Sub-sections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
7 Sub-section 38(g) requires questions of rehabilitation and retraining to be considered in determining whether the 40 per cent loss has been established; however, in this case, this does not loom as an issue, particularly in view of the defendant’s medical evidence. Further, ss38(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 I have applied the principles identified by the Court of Appeal in Barwon Spinners & Ors v Podolak,[1] The Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop[2] and Meadows v Lichmore Pty Ltd.[3]
[1] (2005) 14 VR 622
[2][2014] VSCA 292
[3][2013] VSCA 201
9 The defendant concedes that the plaintiff has suffered an injury to his lumbar spine in the course of his employment on 27 April 2012, as a specific incident, but denies he has suffered injury to his lumbar spine by way of general aggravation throughout his employment.
10 Further, such physical injury, as admitted, does not met the threshold as set out by the Act for economic loss or pain and suffering.
11 Further, the plaintiff has not proved the 40 per cent loss of earning capacity pursuant to subparagraphs (e)(i) and (e)(iii).
12 The defendant’s counsel submits that, for the purposes of this case, the figure of $64,000 attributable for the financial year ending 30 June 2012 is the figure which would be relevant to subparagraph (f)(ii) of the relevant section.
13 In any event, defence counsel submits that the plaintiff has recovered from the acute injury suffered on 27 April 2012.
Pre-injury earning capacity
14 The Court of Appeal in Barwon Spinners & Ors v Podolak[4] was constrained in a number of cases to consider the interpretation to be afforded to s134AB(38)(f) and s134AB(38)(e). At paragraph 21 therein, the Court, with respect to subparagraph (e), recited as follows:
[4] Supra
“This ‘new concept of a 40 per cent threshold’ was said by the minister, in the second reading speech, to provide ‘an objective criterion of a loss of earning capacity’. In explanation, the minister said that:
‘… this objective standard is within the range which the full court found in Petkovski v Galletti[5] to be very considerable. There the full court considered a fact situation where the reduction in working hours was from about 40 to between 25 and 20. The full court said that such an interference with working capacity may fairly be regarded as a serious consequence.’
Now, however straightforward it may be to calculate a financial loss of 40% or more when what is at stake is a reduction in working hours, the argument on these appeals has demonstrated how difficult it can be to calculate the extent of the loss … .”
[5][1994] 1 VR 436
15 Paragraph 22 recites:
“Moreover, while it might have been thought that the easiest way to determine relevant economic loss would be to compare what was being earned by the worker before injury with what could be earned after injury, the loss of earning capacity is now to be ‘measured … as set out in paragraph (f)’ — and para (f) is far more sophisticated. It requires a comparison of two things which may be called, shortly, after-injury earnings and without-injury earnings. The first is described as:
‘the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is earning or is capable of earning in suitable employment as at that date [being the date of the hearing of the application before the court]’
and the second, as:
‘the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion … , had the injury not occurred.’”
[emphasis in original].
16 Paragraph 23 recites:
“The latter, without-injury earnings, are to calculated by reference to ‘that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity’, had there been no injury. The court is therefore required to go well beyond actual pre-injury earnings and consider (on the hypothesis that the worker was and remained free of the compensable injury at base) both earnings and capacity to earn during that portion of the six years marked out ‘as most fairly reflects the worker’s earning capacity’. As it stands, that task is not inconsiderable.”
17 Further, the Court of Appeal considered, in The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop,[6] the construction of s134AB(38)(f)(ii) of the Act as follows:
[6](Supra) at paragraphs [42]-[44]
“In our opinion, s 134AB(38)(f)(ii) of the Act is intended to be read as follows:
the gross income (expressed at an annual rate) that the worker:
• was earning from personal exertion; or
• was capable of earning from personal exertion; or
• would have earned from personal exertion; or
• would have been capable of earning from personal exertion,
during that part of the period within three years before and three years after the injury, as most fairly reflects the worker’s earning capacity had the injury not occurred.
When s 134AB(38)(f)(ii) of the Act is broken down as set out at [42] above, it becomes clear that the final phrase is needed to qualify not only the words that immediately precede it but also the four alternative scenarios in the subparagraph. The final phrase provides the criterion to be used to select not only the period (within the maximum period of six years), but also one of the four alternative scenarios. Unless the final phrase is read as qualifying the subparagraph as a whole, the subparagraph would not provide any basis for choosing which scenario is the most appropriate.
On the basis of the above interpretation, what is required under s 134AB(38)(f)(ii) of the Act is ascertainment of a worker’s gross annual income that most fairly reflects his or her earning capacity had the injury not occurred.”
18 Further, the Court held:
“We agree with Ms Jessop’s submission that, for the purposes of s 134AB(38)(f)(ii) of the Act, a worker’s earning capacity represents a capital asset which, when exercised, produces income from personal exertion. It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the worker’s capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.”[7]
[7](Supra) at paragraphs [53]
The injury
19 In his first affidavit, sworn 21 February 2018, the plaintiff swore that he had completed his apprenticeship as a motor mechanic in England and upon coming to Australia in 1986, he worked for various employers in Queensland, the Northern Territory and Western Australia, performing similar work. Prior to coming to Victoria in 2009, he also worked for the Kimberly Diamond Mines as a workshop controller in the light vehicle workshop for a period of about two-and-a-half years, such work being split evenly between administrative work and hands-on work.[8] In the financial year ending June 2009, he earned $109,000.
[8]Plaintiff’s affidavit dated 21 February 2018 at paragraph [7]
20 Upon commencing with his current employer, the plaintiff described the work thus:
“In 2009 we moved to Victoria and I obtained employment with the Defendant G4S Custodial Services Pty Ltd as a corrections officer at Port Phil[l]ip Prison commencing 21 September 2009. In my employment as a corrections officer, by reason of my trade qualifications, I was sought after to work in the prison industries section of the prison which is designed to give prisoners some basic training to assist them in job finding at the completion of their respective sentences. Accordingly, I was running a factory area in the prison. At one point I was involved supervising and directing the construction of a powder coating machine over a period of eight months. This powder coating machine was assembled completely on site. The machine itself was approximately 40 foot long similar to a large shipping container and was covered by panels. Each of these panels weighed approximately 75kgs and by reason of my trade knowledge and the fact that I was directing the whole operation, I was frequently handling and manoeuvring these panels assisted by up to eight prisoners. But a large amount of the manual handling work fell to myself. Other manual handling tasks included the assembly of two truck loads of pallets each week for a local pallet company. I estimate that there are up to 500 pallets assembled each week and these had to be lifted and stacked. I was responsible for directing by way of demonstration to the prisoners this activity which likewise involved frequent manual handling. Another very heavy aspect of my work involved the use of a pallet trolley to move stillages used in the manufacture of nuts and bolts. These all weighed 500kgs and were loaded onto the pallet by sliding the pallet underneath the stillages which were then lowered. The pallet trolley was manually started and stopped and hence there was a very significant strain involved in that activity. More generally there was a lot of lifting, twisting and turning involved in my overall administration and demonstration work in the prison industry area of the prison.
Although my spine was subject to constant strain at work, I was not aware of any problem with my lumbar spine before Friday, 27 April 2012. On that day my telephone was ringing and I ran into my ( office and with my right hand reached for the day book and with my left hand leant over to answer the phone. As I did so, I heard and felt a click in my back although there was no immediate pain that I was aware of and I continued my usual shift.
However, the following Saturday morning, I woke with severe pain in my lower back and was unable to get up and was taken by my wife to the local GP Dr Prasad at Wyndham Medical Centre at Werribee Plaza when the clinic was still operating. I was given two injections into my spine which provided only limited relief for the pain. I remained bedridden and tried to return to work the following Wednesday but was still in pain and was sent home at that time. I was off work another week and then attempted to resume work and did so but suffered persisting lower back problems throughout the course of 20I2 and I continued to work with restrictions until my employment was terminated in mid-2015 [seemingly 2016].”[9]
[9]Plaintiff’s Court Book (“PCB”) 8-9
21 On this background, the plaintiff tendered in evidence a CT scan of the lumbar spine dated 19 September 2012, a CT scan of the lumbar spine dated 10 December 2012 and an MRI scan of the lumbar spine dated 7 August 2015.[10]
[10]PCB 8-9
22 The first CT scan stated, inter alia:
“At L4/5 there is a small to moderate sized midline focal disc protrusion impinging upon the thecal sac, with associated ossification, indication sequestration:
At L5/S1, minor bilateral facet degenerative changes are present, not associated with neural foramen narrowing and no disc abnormality seen.
Conclusion
Focal midline, sequestrated, L4/5 disc protrusion impinging upon thecal sac, of small to moderate size.”[11]
[11]PCB 102
23 The second CT scan stated, inter alia:
“Clinical indication:
Severe gradual increase in lumbar back pain after epidural injection for disc bulge …
…
L4/5 disc:
The partially calcified central disc protrusion compressing the anterior aspect of the thecal sac is demonstrated and is unchanged from the previous examination. No further evidence of thecal or nerve root compression at this level.
L5/S1 disc:
No disc protrusion or thecal or nerve root compression is demonstrated. Bilateral facet joint osteoarthritis is detected as in the previous examination.
…
Conclusion:
No interval change in comparison with the examination of 19/09/2012. Calcified central disc protrusion at L4/5 and L5/S1 facet joint osteoarthritis.
… .”[12]
[12]PCB 103
24 The third examination, being the MRI scan of 7 August 2015, stated, inter alia:
“Clinical information: Low back pain with radiation to right leg.
…
L4-5: Degenerative disc disease with reduced T2 disc signal and marginal reduction in disc height. A small broadbased central disc protrusion slightly indents the anterior thecal sac with T2 hyperintensity posteriorly consistent with a posterior annular tear. The disc protrusion contacts but does not displace the right L5 nerve root in the lateral recess.
…
L2-3: Early disc desiccation with broadbased posterior disc bulging, eccentric to the left extending into and almost contacting the exiting left L2 nerve root in the neural foramen.”[13]
[13]PCB 104
The consequences
25 The plaintiff was referred by the employer to a general practitioner, Dr Lee, in Laverton North. He arranged for the first two CT scans referred to above. He also arranged for referral to a neurosurgeon, Mr Smith, whom the plaintiff consulted on two occasions in November 2012 and January 2013. Mr Smith arranged a CT-guided epidural injection, but otherwise advised against surgery. The CT-guided steroidal injection provided some relief from spinal pain for a few days but then the benefits subsided and the plaintiff stated he suffered persisting symptoms in his lower back thereafter.[14]
[14]Exhibit “A” at paragraph 15, PCB 10
26 In February 2013, the plaintiff attended his own general practitioner, a Dr Sutton in Altona North. Dr Sutton, in turn, referred the plaintiff to a neurosurgeon, Dr Ales Aliashkevich.
27 Dr Aliashkevich subsequently referred the plaintiff to pain specialist, Dr Richard Sullivan, who recommended a pain management program. The plaintiff swore that while he found that program beneficial, it did not lead to any lasting improvement in his symptoms, and Dr Sutton continued to prescribe a variety of morphine-based medications, including Oxycodone, OxyContin and Targin.[15]
[15]Exhibit “A” at paragraph 18, PCB 11
28 The plaintiff swore that his pain persisted through 2014 and 2015, and Dr Sutton ultimately referred him to a sports physician, Dr Jowett.
29 Dr Sutton also referred the plaintiff for further neurological assessment with Mr Wong, who arranged for the MRI scan referred to above on 7 August 2015.
30 Mr Wong recommended a bilateral L4-5 facet joint injection, in which the plaintiff stated the benefits lasted only a few hours.[16]
[16]Exhibit “A” at paragraph 21, PCB 12
31 As a result of the termination of his employment, the plaintiff decided to move to a warmer climate in 2016. He has been in receipt of unemployment benefits and attended a management training program which was provided through a local hotel, in the mornings, on Monday to Friday, where he says he provides:
“… limited assistance to the manager. As a matter of practicality, the mornings are mainly spent sitting round yarning with the manager as he goes about his jobs.”[17]
[17]Exhibit “A” at paragraph 22, PCB 12
32 As to ongoing capacity, the plaintiff swore:
“As mentioned, I am through my unemployment benefit program undertaking some basic management training but this is at the most basic level and below the level at which I previously operated when I was running workshops. However, those positions always required me to be on-hand to direct more junior staff members and such directions could include manual handling tasks as well. I do not believe that I am capable of pursuing any work in my trade henceforth and believe that for practical purposes my working life is probably over at this point.”[18]
[18]Exhibit “A” at paragraph 23, PCB 12
33 In terms of pain and suffering, the plaintiff swore:
“In terms of pain and suffering consequences, I suffer constant but variable levels of lower back pain. I am never free of pain. I believe that my altered stance by reason of lower back pain has brought about bilateral plantar fasciitis. However the pain caused by that condition is not my main concern. My main concern is spinal pain which variably affects both my left leg and right leg with symptoms extending down to about knee level. These symptoms have been present over a number of years now of years now and despite the treatments which I have received there has been no remission in the level of the symptoms and I believe that they are likely to be ongoing.”[19]
[19]Exhibit “A” at paragraph 24, PCB 12-13
34 With respect to sleep, the plaintiff swore:
“… My sleep is disturbed on a nightly basis by pain and I tend to have disturbed sleep patterns leaving me feeling tired and lethargic throughout the day. My ability to lift weights or to push or pull is significantly restricted. Around the house my wife undertakes most of the housework and most of the shopping. I find that the more activities I engage in the more pain I am in.”[20]
[20]Exhibit “A” at paragraph 24, PCB 13
35 With respect to recreational activities, the plaintiff swore:
“… I used to enjoy … motorbike riding and 4WD driving. My spine simply cannot put up with the vibrations and jolting involved in those activities. I used to enjoy restoring vehicles but that hobby has ground to a halt. I have an old Comby [van] which was meant to be restored within a matter of months but I have now had it for eight years. I have difficulty lifting and being involved physically in the activities of my grandchildren which is a regret to me. As I say, the more active I am the more pain I am in. Having regard to the lack of progress made through use of painkillers previously prescribed, I have now declined to use any painkilling medication and to simply put up with the pain rather than the side-effects of haziness which I used to suffer when taking those medications.”[21]
[21]Exhibit “A” at paragraph 24, PCB 13
36 In his further affidavit, sworn 5 May 2019, the plaintiff swore:
“I continue to experience significant pain and restrictions in my lumbar spine and referred pain into my legs as a result of the injuries I sustained during the course of my employment with the Defendant.
I also continue to experience symptoms of pain and restrictions in both of my feet as a result of the plantar fasciitis that I developed during the course of my employment with the Defendant and/or secondary to the alterations to my gait caused by my back pain. The pain in my spine and referred pain into my legs remains my most significant problem.
I am now reliant on strong prescription pain medication. I have previously been prescribed Panadeine Forte and Oxynorm. I try not to use this medication every day as it makes me feel unwell and lethargic. I prepare in advance for days where [I] [k]now that I will need to be active by taking Panadeine Forte on the day prior, during the busy day and the following day to assist my recovery.
I take the Oxynorm when I have to travel. I try to avoid taking this medication as much as possible because it takes me a few days to recover.
The ongoing pain and restrictions in my spine prevent me from being able to sleep. I toss and turn at night as it is difficult to find a comfortable position. The pain wakes me many times a night once I manage to fall asleep. I am constantly tired, lethargic and irritable with those around me due to my ongoing inability to sleep.
The pain and restrictions in my spine continue to prevent me from being able to return to any form of employment. I am currently in receipt of Centrelink benefits. My wife and I have been placed under a significant amount of financial strain due to my inability to work.
I have continued to look for work. I am obliged by Centrelink to apply for at least 12 jobs per month. I have complied with my obligations as I would prefer to work rather than having to rely on welfare. My job applications have been unsuccessful and I remain unemployed.
I attempted a job placement at a local hotel. This was not a genuine employment opportunity; I was not given any meaningful tasks and I spent my time talking to the publican.
I am unsure what type of work I will be able to do in the future. I cannot stand or sit for long periods of time without having to constantly change position. The constant pain makes it difficult to concentrate. I cannot bend or undertake any type of repetitive tasks. I cannot operate a word processor and have never worked in an office. Any administrative duties that I have completed during my working life have been an incidental aspect of my job.
My restrictions prevent me from ever returning to work as a mechanic. This is a significant loss as this was my chosen trade. I have worked as a mechanic mest (sic) of my working life and, prior to supervising sustaining injury, I have never experienced any difficulties finding employment in this industry.
I was employed by the employer supervising prisoners whilst they completed work in a workshop. I can never return to this type of work. This supervisory role required constant standing and the ability to be able to concentrate for long periods of time. The type of work that I was required to do involved the practical participation in the projects being completed by the prisoners.
I am frustrated by my inability to work. My adult children have now left home and this is the time in my life when I should be preparing financially for a comfortable retirement. I now constantly worry about money and how I will support myself later in life. This constant financial pressure has placed strain on my marriage.
The ongoing pain and restrictions that I continue to experience in my spine has destroyed my way of life. I am passionate about cars. I am a mechanic and have worked on cars professionally and as a hobby my entire life. This is a passion I share with my sons; one is a mechanic and my other son is a panel beater.”
I have a particular passion for the restoration of vintage Volkswagen cars. I have restored many of these cars. This hobby was very important to me before I suffered the injury to my spine during the course of my employment with the employer, now I feel as though I have lost part of my identity.
I have a Volkswagen that I have been unable to restore. I have had this car for six years. It upsets me that I have been unable to complete this project and its condition is deteriorating. I cannot stand or bend for the long periods of time required to complete the heavier restoration tasks. The pain prevents me from concentrating on the finer tasks.
My son who is a mechanic often removes smaller parts from the vehicle that I clean and he replaces the part when he visits. It takes me many hours to compete a task that used to take me a few minutes. I try to maintain my interest in cars by following many car groups and clubs online, but this is not the same.
The loss of my ability to repair cars has been a major loss. I no longer share this profession with my sons. We no longer spend time working on cars together.
I experience an increase of back pain when I sit for longer than approximately 20 minutes. I struggle to travel; even sitting on an aeroplane for short flights causes me discomfort. I experience discomfort when I fly. I require strong pain medication to fly from Queensland to Melbourne. I avoid travelling long distances in cars or aeroplanes as much as possible. I no longer see my sons as often as I would like as they live a considerable distance from me and I struggle to tolerate the trip.
The ongoing pain and restrictions in my spine prevent me from being able to return home to England. My elderly mother is ill and I cannot return to England to say goodbye. This is devastating.
My wife and I hoped to travel after we retired. This dream has now vanished due to my inability to withstand long flights due to my ongoing back pain.
My wife and I live on a one acre block. I try to remain as active as possible by mowing our lawns on occasion. I have purchased a ride on mower to help me complete this task. The vibrations cause me to experience an increase of back pain. I prepare for this task by taking strong medication the day prior. It takes me a number of days to recover afterwards.
I am restricted in the tasks I can do in our garden. I cannot bend down to weed and I had to forego on trying to maintain our vegetable patch.
The pain and restrictions in my spine and referred pain into my legs prevents me from being able to exercise properly and I have gained weight as a result. This change in my appearance is upsetting. … I have given up alcohol due to my concerns about gaining weight. This is a significant loss as drinking beer in pubs was an important social outlet for me and I no longer socialise as often as I once did.
I am unable to ride a motorbike. The pain and restrictions in my spine prevent me from performing the twisting motion required when getting onto a motorbike. The vibrations cause me to experience an increase of pain. I have now sold my motorbike. This is a significant loss as I have ridden a motorbike for most of my life and I miss riding.”[22]
[22] Exhibit “A” at paragraphs 4-27, PCB 107-111
The medical evidence
37 The employer’s general practitioner, Dr Lee, reported on 7 May 2014 that the last time he saw the plaintiff was on 5 February 2013. At that time, he certified him fit for modified duties with the following restrictions:
“7.6 hours of work per day
No bending or twisting of back
No lifting more than 1 0 kg
Should be allowed to lie down and rest once an hour
… . ”[23]
[23]Exhibit “B”, PCB 19
38 Dr Lee also reported:
“The likelihood of further deterioration
At the time of his last review, Mr. Harrison was being managed conservatively in the hopes that his condition would gradually improve over 1 or 2 years. However, it is also possible that his condition could have deteriorated instead if the disc rupture and prolapse worsened, or with loss of muscle conditioning secondary to decreased mobility from the back pain.”[24]
[24]Exhibit “B”, PCB 19
39 Neurosurgeon, Mr Paul Smith, reported on Wednesday, 20 August 2014.[25] Included in his history was the statement:
“He reported to me that he ran a factory within the prison and had put a great deal of work into the construction of a powder coating machine which he was very proud of, but unfortunately because of his work injury he had been unable to see this through to function.”[26]
[25]Exhibit “C”
[26]Exhibit “C”, PCB 21
40 With respect to the incident of 27 April 2012, the history taken was that the plaintiff was leaning across the desk to pick up a phone when he felt a click in his back at the time:
“… He thought not much more of this but towards the end of that day he developed significant lumbar back ache and the next morning awoke unable to move due to significant lumbar muscular spasm and he had on going (sic) lumbar back pain subsequent to the injury without relief.”[27]
[27]Exhibit “C”, PCB 21
41 Further, on examination at the first visit, Mr Smith opined:
“… he had obvious lumbar paravertebral muscular spasm on the left side on examination and was somewhat limited in his movement with regards to the lumbar spine due to this spasm. Straight leg raise on the left did trigger worsening of his lumbar back pain but did not give more distal disturbance. His CT Lumbar Spine demonstrated evidence of disc disruption at the L4/ 5 level with some calcification in the annulus as well as a broad based disc bulge but it was hard to see evidence of clear cut nerve impingement on this CT and his clinical features to my mind at this first visit did not tend to suggest neural impingement.”[28]
[28]Exhibit “C”, PCB 22
42 Further, Mr Smith stated:
“It was my impression that he was a man troubled mainly by discogenic patter low back pain fluctuating in intensity but overall quite troublesome and restricting him to light duties in his work place … .
It was my impression that he had overall ongoing discogenic lumbar back pain without significant leg pain, but upon further questioning at this second visit he did report some right buttock discomfort. His MRI demonstrated an L4/5 annular tear and very slight disc bulge and perhaps displacement of the right 15 nerve root but not overt nerve root compression. It was my impression when assessing Philip having the results of imaging available and the knowledge of his response to the epidural that surgery would probably be best avoided in his situation, it was my suggestion that he continue with ongoing physiotherapy at least for a period of time in addition to walking as much as possible and avoidance of lifting from the ground and lifting of anything from waist height. These were measures he was already undertaking when I saw him last.”[29]
(sic)
[29]Exhibit “C”, PCB 22
43 As to the mechanism of injury with respect to the acute event reported to him, Mr Smith stated:
“… Overall this story is quite plausible and it is not uncommon for minor events like this to [be] associated with a peculiar sensation in the back which is presumably the initiating event and for the patient to then develop lumbar spasm over the next 24 hours or so. His history overall is really quite consistent with the event at his work on the 22nd April 2012 being the cause of his ongoing lumbar back pain and presumably the 14/ 5 disc injury.”[30]
[30]Exhibit “C”, PCB 23
44 It does not appear that Mr Smith, at this time, was asked about the underlying degenerative change and its relationship to the work in general, as described to him and in the affidavits.
45 As to capacity for employment, Mr Smith thought that the plaintiff would be unable to participate in any heavy lifting and, in particular, any lifting from the ground, or prolonged sitting greater than an hour at a time, work without a break, or lifting greater than 5 to 10 kilograms from waist height.[31]
[31]Exhibit “C”, PCB 23
46 Upon seeing his own general practitioner, Dr Miles Sutton, commencing February 2013, Dr Sutton reported as at 2 May 2014:
“… He continues to work full-time as a Correctional Officer at Port Phillip Prison with restricted duties to prevent aggravation of the injury; avoiding lifting/pushing/sliding of objects greater then 10kg, avoiding regular bending and prolonged sitting or standing greater than 1 hour, avoiding prisoner contact.”[32]
[32]Exhibit “D”, PCB 26
47 Dr Sutton referred the plaintiff to physiotherapist, Mr Elton Yeung, who first reported on 17 June 2014.[33] Mr Yeung noted, on examination, general restrictions of movement and stiffness in the lower thoracic and lumbar spine:
“There was also muscle spasm at both lumbar para-vertebral regions and left gluteal region.”[34]
[33]Exhibit “E”
[34]Exhibit “E”, PCB 33
48 The treatment ceased on 11 June 2014, when the plaintiff was due to start a pain management program on 17 June 2014. At that stage, he considered the plaintiff was unfit for pre-injury duties which required direct prisoner contact and/or prolonged sitting.[35] The condition had not stabilised, and there was a likelihood of further deterioration.[36]
[35]Exhibit “E”, PCB 33
[36]Exhibit “E”, PCB 34
49 Dr Sutton referred the plaintiff to neurosurgeon, Dr Aliashkevich, who reported on 27 August 2013.[37] He took a similar history about the acute incident. He noted the plaintiff had been on regular painkillers and required intake of Oxycodone, OxyContin and Targin. He was also on regular physiotherapy, including exercising, electro-pulse therapy and massage. He had undergone an epidural injection on 28 November 2012, which failed to provide him with symptomatic relief.[38] On examination, he noted:
“He had significant paravertebral tenderness In the lumbosacral region on palpation. The range of movements of the lumbar spine was restricted with flexion possible to only 30o.”[39]
[37]Exhibit “F”
[38]Exhibit “F”, PCB 39
[39]Exhibit “F”, PCB 39
50 Pain specialist, Dr Richard Sullivan, reported back to Dr Aliashkevich on 27 March 2014.[40] He took a history as follows:
“… He has had intermittent low back pain over a prolonged period of time but had a significant aggravation of his pain after reaching across a desk In May 2012. Pain was persistent, unremitting and refractory and he ended up having some Investigations that showed a displaced disc at LS and L6, he has six lumbar vertebrae. He reports both persistent low back pain and principally left buttock pain with intermittent severe flares. He has good days and bad days with good days averaging visual analogue scale scores of 4/10 and bad days rating 10/10. Bad days account for 20·40%of his time.”[41]
[40]Exhibit “H”
[41]Exhibit “H”, PCB 48
51 On examination, Dr Sullivan noted:
“He is extremely allodynlc around the lumbar spine and has a lot of pressure hyperalgesia around the paravertebral musculature, He has extremely limited forward flexlon, extension and lateral flexlon and he finds a degree of rnstability on single leg stance, Neurological examfnation of the lower limbs is otherwise normal and his gait Is antalgic but does not demonstrate s[i]fgnificant weakness.”[42] (sic)
[42]Exhibit “H”, PCB 49
52 Neurosurgeon, Dr Michael Wong, reported back to the referring doctor, Dr Sutton, on 5 August 2015. He reported:
“His lower back pain has since become chronic and intermittent. His lower back pain has intermittent radiation to his bilateral posterior thighs, being slightly worse on the left side. He does not complain of any pain radiating below his knees. This patient does not complain of any sphincter disturbance. This patient is currently on intermittent OxyContin for his pain.”[43]
[43]Exhibit “L”, PCB 54
53 Dr Wong reported again on 20 August 2015, following the MRI scan of the lumbar spine.[44] Subsequently, he organised for a bilateral L4-5 facet joint injection in order to improve the plaintiff’s lower back pain. He was also encouraged to continue with physiotherapy, hydrotherapy and Pilates to further improve his pain.[45]
[44]Exhibit “Q”
[45]Exhibit “Q”, PCB 56
54 On moving to Queensland, Dr David Pratt became the plaintiff’s general practitioner. He reported on 8 September 2017 that the plaintiff was suffering from a long-term back injury which was stable, but where there was no improvement. He was being prescribed opiate analgesia on a PRN basis.[46] He considered that his prognosis for recovery was limited so was therefore poor.[47] Any bending, kneeling or squatting to pick something from the floor “would severely exacerbate pain”.[48]
[46]Exhibit “M”, PCB 58
[47]Exhibit “M”, PCB 60
[48]Exhibit “M”, PCB 61
55 With respect to employment, Dr Pratt stated:
“He had return to work plans in the past. However his symptoms remain severe and there are few employers in this location.”[49] [CHECK]
[49]Exhibit “M”, PCB 61
56 Consultant neurosurgeon, Professor Richard Bittar, examined the plaintiff on a medico-legal basis on 1 March 2017, and reported the same day.[50] Professor Bittar took a consistent history with respect to the treatment referred to above. He commented he has been unable to access any significant physiotherapy, Pilates or hydrotherapy due to lack of funding from his insurer. He remained at work until mid-2016, when his position was terminated. Since his termination, he noted the condition had fluctuated in severity and had deteriorated slightly since ceasing work. The plaintiff attributed disc deterioration to “increased inactivity”.[51]
[50]Exhibit “N”, PCB 64
[51]Exhibit “N”, PCB 65
57 As to current symptoms, Professor Bittar opined:
“He complains of constant lower back pain which is located bilaterally across the lumbosacral junction. This pain varies in character between sharp and dull depending upon his posture and activity. It has an average severity of 7 /10 with a maximum severity of 10/10.
His back pain radiates into his buttocks and hamstrings and is currently worse on the right hand side. His leg pain severity does fluctuate, and his left leg is often worse than his right.
His back pain and leg pain are exacerbated by sitting for more than one hour, standing for more than one hour, walking on flat ground for more than one hour, bending, twisting and lifting more than approximately seven kilograms.
His symptoms improve with recumbency.”[52]
[52]Exhibit “N”, PCB 65
58 Under the heading “Past Medical History”, Professor Bittar noted:
“His past medical history is noncontributory for previous lower back injuries, or symptoms suggestive of a pre-existing lumbar spine condition.”[53]
[53]Exhibit “N”, PCB 66
59 Further, Professor Bittar stated:
“In my opinion, the incident which occurred at work in May 2012 has been the significant contributing factor and remains a significant contributing factor to his ongoing pain, disability and requirement for treatment.”[54]
[54]Exhibit “N”, PCB 66
60 It does not appear, however, that Professor Bittar took a history with respect to the work prior to May 2012 and/or the existence of underlying degenerative change. In any event, Professor Bittar stated:
“In my opinion, he is likely to continue to suffer from significant pain and disability into the foreseeable future.
…
In my opinion, he is permanently incapacitated for his pre-injury duties as a prison officer as a result of the physical injury to his lower back.
In theory he does have the physical capacity to undertake very sedentary work and probably work in such a role four to six hours per day, five days per week if frequent postural changes were available. It is beyond my area of expertise to comment on whether he is likely to be able to find such a position in the open labour market, and I would recommend an opinion be obtained from an occupational physician.
…
… In my opinion, he is permanently incapacitated for his pre-injury employment.”[55]
[55]Exhibit “N”, PCB 67
61 Specialist occupational physician, Dr Joseph Slesenger, reported to the plaintiff’s solicitors on 15 March 2017.[56] Dr Slesenger took the following history with respect to employment and injury:
[56]Exhibit “P”, PCB 68
“Mr Harrison advised that he was injured during the course of employment whilst working as a prison officer at Port Phillip where he had been working since 2009, working 76 hours per fortnight on a rotating shift pattern, including night shift. He had originally been employed to perform normal prison office duties (patrolling, restraining prisoners and searches). However, just prior to the injury under consideration, he had been involved in installing powder coating equipment within the prison workshop. He advised that this project had been ongoing for about 6 months at the time of the injury. He advised that the machinery was composed of parts weighing up to 55 Kg. The machinery was being assembled by prisoners and he advised that the job tasks required:
• Constant standing.
• Forward reaching.
• Over shoulder reaching.
• Lifting and transferring heavy weights
Mr Harrison advised that the prison was not equipped with appropriate lifting aids for use within an indoor environment. As a result, the manual handling tasks were more onerous.”[57]
[57]Exhibit “P”, PCB 70
62 Thereafter, Dr Slesenger recorded the consistent history of the acute event in May 2012.
63 As to his level of symptoms, Dr Slesenger took a history of:
“… ongoing pain in the lower back that has been severe and radiates to both legs. He advised that the pain is both dull and sharp in character in both his low back and legs. The pain is aggravated by activity, particularly bending or sitting for prolong periods. He advised that standing also aggravates his symptoms.”[58]
[58]Exhibit “P”, PCB 70
64 In terms of the relationship of injury to employment, Dr Slesenger stated:
“I am satisfied that the occupation exposures are a plausible cause of impairment. In support of this, I note the:
• The workplace activities leading up to the injury under consideration, and in particular, the heavy manual handling and postural requirements associated with this role. I note the absence of lifting aids and the limited staff/prisoners performing these tasks.
• In addition, I also note the temporal association with the precipitating action that caused the onset of Mr Harrison's low back and radicular symptoms.
I am satisfied that taking all the above factors into consideration, his employment is a plausible cause of his impairment.”[59]
[59]Exhibit “P”, PCB 76
65 Dr Slesenger reported again on 29 January 2019.[60] On this occasion, Dr Slesenger took an expanded history about the stresses and strains of his employment prior to the acute event in May 2012. Since moving to Queensland, he noted:
“He has trialled returning to work at Bundaberg Motor Group as a parts advisor. He advised that the role included a pick packing, and accordingly, he was not able to remain in work in this role.
He advised that he also attended a Centrelink-supported employment program as an observer/supervisor in a local hotel. He advised that he was not required to perform any customer service, nor was he required to perform any restocking or cleaning. He advised that he sat and stood in the bar area, 4 hours a day, 5 days a week, up to November 2018. In the interim, he remains under the Centre link return to work coordinator and is required to apply for up to 12 jobs per month.”[61]
(sic)
[60]Exhibit “P”, PCB 78
[61]Exhibit “P”, PCB 83
66 In summary, Dr Slesenger noted the plaintiff continued to present with ongoing lumbar spinal pain, with radiating symptoms that had persisted since his last evaluation. Importantly, he noted:
“I am of the opinion that there is at least in part a psychogenic elenet (sic) to his presentation, however this is a limited feature, and there remains an organic element to his presentation.”[62]
[62]Exhibit “P”, PCB 90
67 In terms of the physical condition, Dr Slesenger noted:
“… I am satisfied that the initial lumbar spinal impairment was causally linked with the workplace exposures and I am satisfied that the ongoing impairment is at least in part related to the workplace exposures. Nevertheless, I note some evidence of non-organic features and I am of the opinion that there is at least in part a psychogenic element to his presentation.”[63]
[63]Exhibit “P”, PCB 90
68 In terms of the physical consequences of any incapacity, Dr Slesenger noted:
“Taking into consideration [the plaintiff’s] current symptoms, functional limitations, his age, his past occupational experience and his qualifications, I am of the opinion that he retains capacity for work with restrictions, namely:
• Avoid prolonged standing (no greater than 30 minutes).
• Avoid squatting.
• Avoid walking on uneven ground.
o (sic) Avoid push, pull, carry or lift over 10 kg on an occasional basis and 5 kg on a repetitive basis.
• Avoid exposure to whole body vibration.
I recommend that he returns to work working 4 hours a day, 4 days per week.”[64]
[64]Exhibit “P”, PCB 91
69 Further, Dr Slesenger stated:
“… I am of the opinion that the restrictions outlined above should be regarded as continuing into the foreseeable future. Whilst … [the plaintiff] has not reached a position of maximum medical improvement, he is approaching this position.”[65]
[65]Exhibit “P”, PCB 91
70 With respect to a CoWork Assessment Report noting recommendations for the plaintiff to return to work, Dr Slesenger considered that a service station attendant, hotel receptionist concierge and a vocational education teacher were contraindicated. He thought he could work as a telemarketer, working from home, with the restrictions outlined above, or perhaps as an automotive service adviser, as long as he was not required to assist with automotive servicing.[66]
[66]Exhibit “P”, PCB 92
71 Finally, the plaintiff was examined by neurosurgeon, Mr Paul D’Urso, who reported on 1 February 2019.[67] He took a history of current chronic back pain, being at 7 out of 10. Also, he was suffering bilateral sciatic symptoms and described shooting pain down his posterior thighs. He struggled to sit for more than a few minutes, but could walk for thirty minutes. He also woke at night with pain. On examination, Mr D’Urso noted, inter alia:
“… His knee reflexes were symmetrical, the right ankle reflex was absent. Plantar responses were downgoing. Sensation was altered in the right lateral thigh. [The plaintiff’s] left straight leg raise was positive at less than 15 degrees and on the right less than 30 degrees for back pain … He could flex his spine but only poorly … .”[68]
[67]Exhibit “P”
[68]Exhibit “P”, PCB 96
72 In response to a question as to how his current physical condition could be materially contributed to by employment, Mr D’Urso stated:
“It would appear that [the plaintiff] has developed chronic pain syndrome secondary to an injury which occurred to the L4-5 intervertebral disc level.
…
… [He] would not have capacity to perform unrestricted physical or manual employment activity. He should not be required to lift weight in excess of 15kgs. He should not be required to lift from below the knee or above the shoulder. He would require the ability to ambulate freely in the workplace and avoid prolonged sitting and standing postures. Such restrictions would be of a permanent nature into the foreseeable future.”[69]
[69]Exhibit “P”, PCB 97
73 Mr D’Urso considered the plaintiff would be able to perform appropriate duties within those restrictions on at least a part-time basis.[70]
[70]Exhibit “P”, PCB 97
74 As to the future, Mr D’Urso stated:
“The condition would appear to have a mild to moderate effect on social, domestic and recreational activity. Phillip does not have capacity to perform more vigorous recreational activities as he once did. He does not have capacity to perform unrestricted physical or manual cleaning or gardening activity. Phillip will have a permanent incapacity of a partial nature as a result of his condition of a mild nature.”[71]
[71]Exhibit “P”, PCB 97
75 In summary, Mr D’Urso considered the plaintiff presented:
“…with a history of chronic back pain and shooting sciatic symptoms. It would appear that workplace activity performed in his duties as a correctional officer precipitated the onset of symptoms and has contributed to the development of an L4-5 intervertebral disc prolapse.”[72]
[72]Exhibit “P”, PCB 98
Analysis
76 The acute incident which occurred in May 2012 would appear to be an ongoing contributing factor to the plaintiff’s present condition. I would also accept that the underlying degenerative change was also a contributing factor which had been contributed to by the work performed in the prison as per the opinion of Dr Slesenger referred to above. I prefer Dr Slesenger’s opinion, because he has taken a more fulsome and complete history of the work performed.
77 In any event, there is no convincing evidence that the acute event is not also playing a part.
78 Insofar as Mr D’Urso considers that the plaintiff suffers from a chronic pain syndrome, the tenure of his report does not suggest to me that that his injury is not significantly physically based. Further, he does not suggest in the report that the Chronic Pain Syndrome is psychologically based or is of one containing a psychogenic component. In any event, the physical deficits as set out in the two CT scans of 2012 and the MRI scan of August 2015, would tend to the conclusion that the plaintiff’s disability is significantly physically based and I do not consider Dr Slesenger’s opinion that there is a psychogenic component to offset the overall thrust of his opinion that the lumbar condition is physically based. Further, Dr Slesenger, on examination, noted:
“… Mr Harrison attended on time. He interacted well. He gave a clear and consistent account of his injuries. His affect was normal. His eye contact was good. He appeared neat and kempt.”[73]
[73]Exhibit “O”, PCB 73
79 Further, there was no hint contained on the extensive examination findings that the plaintiff was exaggerating his disability. Further, his examination findings on the second occasion were almost identical with respect to the plaintiff’s presentation. There was an added comment to the following effect:
“… There was verbalisation and grimacing during the course of the narrative and the examination.”[74]
[74]Exhibit “O”, PCB 84
80 However, the other dot points before and after this comment would suggest, to the lay person at least, that the plaintiff was not attempting to exaggerate his position. Further, the rather extensive examination revealed no other suggestion of any exaggeration. Accordingly, this would explain, in my view, that the psychogenic element mentioned by Dr Slesenger was “a limited feature” as previously observed.[75]
[75]Exhibit “O”, PCB 90
81 Accordingly, I do not believe that any further disentanglement is required, as the physical condition by itself would explain the plaintiff’s restrictions alluded to above.[76]
[76]See Meadows v Lichmore Pty Ltd (supra)
82 Further, I am less than satisfied that the plaintiff’s restrictions would render him capable of suitable work in employment in Queensland as per the principles laid down in Richter v Driscoll.[77] At best, I would consider that the plaintiff may be able to return to work four hours a day, four days a week, as suggested by Dr Slesenger in his report dated 1 February 2019.[78] That being the case, I consider the plaintiff has demonstrated that he has a loss of earning capacity in excess of 40 per cent, and leave will be granted accordingly.
[77][2016] VSCA 142
[78]Exhibit “P”, PCB 91
83 Further, consistent with the principles laid down in Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[79] leave will also be granted to the plaintiff to issue proceedings with respect to pain and suffering damages.
[79][2009] VSCA 170
84 I will hear the parties with respect to any consequential orders.
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