Holovka v Victorian WorkCover Authority
[2013] VCC 1918
•13 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01096
| JACK HOLOVKA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2013 | |
DATE OF JUDGMENT: | 13 December 2013 | |
CASE MAY BE CITED AS: | Holovka v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1918 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – aggravation of lumbar injury – disentanglement – loss of earning capacity – pain and suffering damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167; Petkovski v Galletti [1994] 1 VR 436; Ansett Australia Ltd v Taylor [2006] VSCA 171; Bates v Crosby Tiles Pty Ltd [2011] VCC 838; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Harris | Adviceline Injury Lawyers |
| For the Defendant | Ms A Sheehan | Hall & Wilcox |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered by the plaintiff in the course of his employment with his employer, Wingfoot Australia Partner Pty Ltd from October 1999 until December 2008. The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discreet heads of damage require the application of different statutory tests as mandated by s134AB(37)(38) of the Act.
2 The plaintiff brings this application first pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There “serious injury” is defined relevantly as meaning “(a) permanent serious impairment or loss of a body function”. The body function relied upon in this application is principally the lumbar spine.
3 The plaintiff also relies upon clause (c), claiming to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
4 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, Brooking JA said that “severe” was used in the definition as a stronger word than “serious”.[3]
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
[3]Mobilio v Balliotis [1998] 3 VR 833 at 846
5 Winneke P, in Mobilio,[4] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act was a word of stronger force than the word “serious” where used in the Act.
[4]Mobilio v Balliotis (supra)
6 The plaintiff relied upon two affidavits sworn 19 October 2011 and 18 January 2013[5] and gave viva voce evidence. In addition, he relied upon the affidavit of Michael Bukovac sworn 31 January 2013. Further, both parties relied on medical reports and other material which was tendered in evidence. In particular, the defendant relied upon the affidavit of Andrew McIntosh sworn 15 October 2012. I have read all the tendered material.
[5]Exhibit A
Outline of Section 134AB
7 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 (38)(e) of the Act imposes 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 fairly described at the date of the hearing as being more than significant or marked and as being at least very considerable.
8 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, mental or behavioural disturbances or disorders. 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. Subsections 38(e) and (f) recite the formula by which loss of earning capacity is to be measured. Subsection 38(g) requires questions of rehabilitation or retraining to be considered in determining whether the 40 per cent loss has been established.
9 Subsection 38(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[6] and Jayatilake v Toyota Motor Corp Australia Limited[7] in reaching my conclusions.
[6](2005) 14 VR 622
[7][2008] VSCA 167
10 The defendant concedes that the plaintiff is a witness of truth and accepts that in the course of his employment during the relevant period he was involved in bending and lifting heavy weights as alleged in his affidavit, but submits:
(a)the plaintiff was already suffering degenerative change in the lumbar spine well before October 2009 due to a number of injuries, including motorcar accidents;
(b)as at October 2009, the plaintiff was suffering pain in the lumbar spine, such that he was treating himself with swimming and sauna and taking painkillers, although remaining at work;
(c)insofar as the work described aggravated the underlying lumbar injury, that aggravation injury must amount to a “serious injury” in its own right pursuant to the principles laid down in Petkovski v Galletti;[8]
(d)insofar as the physical injury was causative of a psychiatric condition pursuant to paragraph (c) of the relevant definition, the psychiatric injury does not meet the test of “severe” and, in any event, does not result in any loss of earning capacity per se;[9]
(e)in any event, the plaintiff ceased in employment December 2008 due to retrenchment and he would still be able to earn income at the rate he was earning at that time ($63,567).
[8][1994] 1 VR 436
[9]See Dr Mendelson’s report, Exhibit 10
Pre-existing physical injury
11 The plaintiff was born in November 1956 in Croatia and is aged fifty-seven years. He commenced employment with a predecessor of the employer in 1973 as a fitter and turner. He remained in that employment for approximately thirty-five years until December 2008, when he was retrenched due to the closure of the factory.
12 It was not in dispute that he originally injured his back in 1973, resulting in about one week off work. In about December 1980, he was involved in a motorcar accident where he received neck and lower back injuries. In approximately March 1989, he suffered neck, back and knee injuries as a result of another motorcar accident. In addition, he had a number of left knee arthroscopies involving a left knee reconstruction, and also an operation for a right tendon Achilles’ injury. He suffered further back and neck injuries in the course of his employment in or about February 1992 and May 1994. He received approximately $17,000 as lump sum compensation for these injuries to his back and left and right knees.
13 From about the 1980s onwards, he treated his ongoing spinal pain with swimming, sauna and painkillers.[10]
[10]Transcript (“T”) 16, L21 – T17, L6
14 As a result of these injuries, CT scans were conducted on his lumbosacral spine on 30 August 1990 and 25 May 1994. The first investigation revealed:
“… a slight posterior bulging of the L5-S1 disc, with a small focal central herniation which abuts the interior aspect of the thecal sac. However, no definite thecal compression or nerve root displacement is noted.”[11]
[11]Exhibit K
15 The latter investigation revealed:
“Mild central protrusion at L5-S1. Comparison with a previous examination of 30/8/90 does not demonstrate any significant change at L5-S1.”[12]
[12]Exhibit K
16 It is common ground that as at October 1999, the plaintiff was performing full duties, interchanging with periods of light duties.
The Plaintiff’s employment from October 1999 until 2003
17 The plaintiff was referred by his general practitioner to orthopaedic surgeon, Mr Peter L Turner, on or about 20 December 2002. He took a history that the plaintiff had been having some trouble with his lower back since a motorcar accident in 1989 –
“The symptoms, however, have been more persistent over the past three months and have not been responding to his normal physio and swimming activities.”[13]
[13]Exhibit 9, Defendant’s Court Book (“DCB”) 57A
18 Further, he reported on a recent CT scan which was said to –
“… show degenerative narrowing of the L5-S1 disc space. On the scan itself there is evidence of intra-discal gas, consistent with a degenerative process. There is a small calcified disc prolapse on the left side at this level. A scan taken back in September 1998 shows a similar disc prolapse at the L5-S1 level on the left side but not as yet calcified.”[14]
[14]Exhibit 9, DCB 57A
19 On or about 18 March 2003, the plaintiff suffered an increase in his lower back pain whilst doing heavy work. There was no particular precipitating incident. He saw his general practitioner, Dr Srinivasan, and he was referred for some scans and physiotherapy. Also at this time he was suffering referred pain into his left leg.[15]
[15]Exhibit A, Plaintiff’s Court Book (“PCB”) 24
20 The plaintiff was then referred to orthopaedic surgeon, Mr Peter Wilde, who saw him on 4 September 2003. Relevantly, he took a history that over the previous eighteen months, the symptoms in the lumbar spine had gradually worsened, especially over the last few months when the deterioration had been quite dramatic. The plaintiff had noticed increasing pain into his left leg with numbness in the sole of his left foot which caused him to limp when he walked.[16] Prior to that time, he was taking the occasional DiGesic and he was undergoing physiotherapy once or twice per month, as well as attending a leisure centre for spa and swimming.
[16]Exhibit E, PCB 51
21 The plaintiff stated that the pain intensity was bad but he could manage without painkillers. Even with tablets, he could only sleep for six hours and his sex life was nearly absent because of pain.[17] Physical examination revealed restrictions in all movements and neurological examination revealed numbness over the dorsum and medial aspect of the left foot and a straight leg raising test was positive at 30 degrees.
[17]Exhibit E, PCB 52
22 Thereafter, Mr Wilde considered that an MRI scan of the lumbar spine taken on 9 October 2003 demonstrated at L5-S1 asymmetric broad-based disc bulge contacting the traversing left S1 nerve and superiorly displacing the exiting left L5 nerve without compression. At L4-5, an asymmetric broad-based disc bulge extended into the left foramina but not displacing the existing left L4 nerve. Mr Wilde considered that a CT scan (undated) showed a prolapsed lumbosacral disc with extension into the exist foramina causing moderate to high grade compromise of the emerging L5 nerve root.[18] He considered the radiological findings to be entirely consistent with the plaintiff’s pain and symptoms.[19]
[18]Exhibit E, PCB 52
[19]Exhibit E, PCB 53
23 At that stage, Mr Wilde recommended a nerve root block using local anaesthetic and steroid under CT guidance to be performed at the Epworth Hospital. His diagnosis as at October 2003 was:
“Left lumbosacral posterolateral and foraminal disc protrusion producing back pain and left L5 and S1 radiculopathy.”[20]
[20]Exhibit E, PCB 53
24 At that stage, Mr Wilde thought the plaintiff was not fit to work as a fitter and turner in heavy machine maintenance. He also considered that the prolapse demonstrated was likely to be as a result of age-related degeneration, although the injury in March 1989 may have actually produced a prolapse which had remained dormant and chronic for almost two decades. When asked whether his work duties were contributing to or aggravating his injury or condition, he replied:
“Mr Holovka’s work as a fitter and turner may probably have aggravated lumbar spondylosis. However I am not aware of any injuries that this man sustained at work other than the injury that he described to me in a motor car accident on 1/3/89.”[21]
[21]Exhibit E, PCB 54
The Plaintiff’s employment: 2003 to 2006
25 In this period, the plaintiff continued at work despite deteriorating lumbar back pain. As at 2006, he was still working on a full-time basis but his treating general practitioner now certified him fit for “modified” duties and he was advised not to do activities that involved repetitive bending and pushing.[22] Up until this time, one job he undertook was the lifting of an MHA bladder machine which was about 120 to 180 kilograms. It had to be lifted about half a metre onto a platform. The plaintiff usually used a piece of timber that he would put through the bladder to use as a lever to assist with the lifting; however, the bladder had to be physically lifted. He did this job about eight to ten times a day up to the year of 2006. Thereafter, a mechanical device was brought into the factory to make the job easier. Prior to this time, he had complained to his superiors at work about the aggravations of his back condition. Specifically, he asked for a bladder stand to be brought into the workshop many times.[23]
[22]Exhibit 4, DCB 26
[23]Exhibit A, PCB 25
26 Another job involved him removing drums weighing about 300 kilograms from the machines. Normally two people did the job together. The plaintiff had to pull and push the drums and this was done almost daily even when he was on light duties. After 2006, he would do this job occasionally, maybe once a week or fortnight. He attests that he kept “pushing myself”.[24]
[24]Exhibit A, PCB 25 and 26
27 Further, he swears:
“Over the years from 2003 to 2008 I suffered on many occasions injuries and aggravations to my lower back and neck. I reported my injuries to my superiors and the medical staff at the defendant’s premises.”
28 At times he would be cleared to do normal duties but he never lasted on those for very long. He swore further:
“Even when I was on light duties, the duties I performed were still quite heavy, including the jobs stated above.”[25]
[25]Exhibit A, PCB 26
29 On 28 August 2006, the plaintiff made a worker’s compensation claim for a low back injury. This claim was subsequently accepted by the defendant based on the report of surgeon, Mr Conroy.[26] The plaintiff relies upon the decision of Ansett Australia Ltd v Taylor[27] to the effect that the acceptance of such a WorkCover claim is an admission that a compensable work injury, of the nature of that set out in the claim, was so sustained and such admission should ordinarily be regarded as “very significant” (see Ashley JA at paragraph 3); see also Bates v Crosby Tiles Pty Ltd.[28]
[26]Exhibit M, DCB 88
[27][2006] VSCA 171
[28][2011] VCC 838 per Judge Bowman (28 June 2011)
The Plaintiff’s employment: 2006 to 2008
30 As already stated, the plaintiff has sworn that although certified for light duties in this period, the duties he performed were still quite heavy including the jobs referred to above.
31 In this period, when the plaintiff had episodes with back pain, he would see his general practitioner, who would prescribe him anti-inflammatories and painkilling medications such as Panadeine Forte. From time to time he would require a few days off work up to a week or so.[29]
[29]Exhibit A, PCB 26
32 Dr Srinivasan certified the plaintiff fit for modified duties from April 2006 onwards. She referred the plaintiff to Mr Peter Wilde on a number of occasions, who suggested that he have an epidural as well as a CT guidance using a local anaesthetic in November 2007.[30]
[30]Exhibit C, PCB 42
33 Mr Wilde saw the plaintiff again in 2007. A CT scan of the lumbar spine was taken on 3 September 2007 and 14 August 2008. According to Mr Wilde, the report of the first scan showed, inter alia:
“At L5-S1 there was narrowing of the intervertebral disc space. Fragmentation of the posterior wall of the vertebral body was shown with slight impingement on the thecal sac but the annulus was not prolapsed. No impingement on the lateral recesses or on the emergent exit foramina and the emergent nerve roots were involved.”
34 The latter investigation stated:
“Demonstrated changes of spondylosis at the lumbosacral junction. At all levels the spinal canal and lateral recesses appeared adequate and there was no evidence of any disc prolapse or nerve impingement. There was no impingement of the lumbar theca or exit nerve roots and good preservation of perineural fat in the lateral recesses.”
35 Mr Wilde reported that the plaintiff referred himself on 2 November 2007 because he experienced an episode of acute back pain. He went off work for six weeks, rested and took analgesics and the pain improved by 20 per cent. He gave a history on that occasion that he had returned to work but was working with persistent pain and difficulty.[31] Mr Wilde suggested a repeat of the nerve root block therapy which had been successful some years earlier. He was hoping that this would act as a “circuit breaker” to further reduce the pain and allow him to return to normal duties in the medium to longer term.
[31]Exhibit E, PCB 58
36 The plaintiff returned for review on 16 December 2008 due to increasing pain in his back and down both legs, probably in the L5 or S1 nerve root distribution. A new CT scan apparently showed considerable sub-facetal and exit foraminal narrowing of the lumbosacral level where the disc was very narrowed and desiccated. This had resulted in marked foraminal stenosis and sub-facetal stenosis affecting both L5 and S1 nerve roots.[32]
[32]Exhibit E, PCB 59
37 In his report dated 4 August 2011, Mr Wilde was apparently not asked again for his opinion about the work relationship with the plaintiff’s condition. However, he did report as follows.
38 The plaintiff had a chronic lumbar spinal condition which consisted of an asymmetric broad-based disc bulge at L5-S1 on the left, producing compression of the L5 nerve root in the exit foramina and perhaps also S1 further immediately medially. As at April 2010, Mr Wilde thought the plaintiff was not fit to work as a fitter and turner in heavy machine maintenance. The prognosis at that stage was guarded and he expected he would always suffer with low-grade symptoms of chronic lumbar pain and stiffness. He would need to modify personal and work activities to accommodate his symptoms to avoid further deterioration. Although apparently not specifically asked, he thought the prolapse was likely to be the result of aged-related degeneration, although it was difficult to rule out the possibility that the injury in March 1989 actually produced an L5-S1 disc prolapse which had remained dormant and chronic for almost two decades.[33]
[33]Exhibit E, PCB 60
39 The plaintiff was retrenched in approximately December 2008 and accepted a redundancy package of about $240,000. Up until that time, he had been receiving certificates of incapacity from his general practitioner for his low back and neck injuries that prevented him from doing any squatting, heavy bending or lifting and lifting being limited to 10 kilograms.[34]
[34]Exhibit A, PCB 28
Causation as at December 2008
40 The treating general practitioner considered that the work performed had aggravated the plaintiff’s lumbar back condition.[35]
[35]Exhibit C, PCB 43
41 Apart from the treating general practitioner and orthopaedic surgeon whose opinions were referred to above, the plaintiff has been seen for medico-legal purposes by Mr Thomas Kossmann on 7 February 2013; and on behalf of the defendant by Mr Keith Hayes on 13 December 2001; Dr David Barton, reports dated 1 November 2006, 17 November 2006 and 3 November 2006; Mr David Conroy, report dated 3 April 2007; and Mr Michael Dooley, report dated 8 January 2013 and 18 October 2013.
42 Mr Kossmann, after taking a relevant history, opined in his report dated 2 September 2012 as follows. The diagnosis was one of –
“… discogenic and mechanical back pain on the basis of disc protrusion and annular disruption at the L4-5 level and disc bulge at the L5-S1 level contacting the transversing left S1 nerve and superiorly displacing the exiting left L5 nerve root.”
43 Further, in his opinion, the spinal condition was “a result of his employment after October 1999”.[36]
[36]Exhibit J, PCB 100
44 Mr Hayes saw the plaintiff for the employer on 13 December 2001 but with respect to a knee injury. He had taken a history, however, that the plaintiff had hurt his lower back in a road traffic accident in 1989 and again in another accident in 1990 but was only off work for about a week following each and he “is not bad now” although he still has physical therapy to his neck and lower back about once or twice a month.[37]
[37]Exhibit 13, DCB 104
45 Dr David Barton, a consultant occupational physician, saw the plaintiff on behalf of the defendant on 31 October 2006. He took a history of problems with his back going back to 1979 due to three motorcar accidents and he also recorded a history of fifteen to twenty years of physiotherapy treatment for the back. At present he was working his normal hours, although undertaking lighter duties with a requirement not to lift more than 10 kilograms. He stated at the time he “was suffering at the moment because of a lack of sleep and is pushing himself to avoid losing any time from work.”[38] Further, he stated his back problems continued to get worse and he had pain all the time which extended towards both sides of the hips.
[38]Exhibit 12, DCB 97
46 It was Dr Barton’s opinion that:
“… having undertaken 33 years of work as a maintenance fitter, it is going to be difficult to argue that his work would not have in some way been a contributing factor to his various musculoskeletal problems.”[39]
[39]Exhibit 12, DCB 98
47 He considered that his back was also an aggravation of pre-existing lumbar spondylosis and that his condition had not resolved. He thought he should be able to continue working his current duties.[40]
[40]Exhibit 12, DCB 99
48 In a further report dated 17 November 2006, he was apparently asked to expand on his opinions. He stated:
“I believe work would be seen as a significant contributing factor to an aggravation of the pre-existing problem based on the type of work he performed over many years.”
49 He also considered that “the back condition would be seen as a continuation of the pre-existing problem.[41]
[41]Exhibit 12, DCB 100
50 In the face of these opinions, Dr Barton was asked again to review his clinical notes and in a report dated 3 November 2006 he stated:
“Having had the opportunity to review this additional information, I still hold to the opinions expressed in my previous report.”[42]
[42](ibid) DCB 102
51 The further information had consisted of his own clinical notes and report, along with about 80 pages of clinical notes from the employer from 1978 to April 2005.
52 Mr David Conroy saw the plaintiff on 3 April 2007 for the purposes of an assessment of “accepted injuries to the lower back and both knees” with respect to an injury as at 13 September 2006. Mr Conroy took a history of the gradual onset over the years of pain in the back going into both legs, but particularly the left, with increasing difficulty bending, lifting or doing any strenuous physical activity. He denied any particular event, claiming that it was the nature of his work changing large “bladders” on presses that made tyres.
53 Mr Conroy recorded that there was half the range of flexion in the lumbar spine and a third of the range of extension. Further, a CT scan dated 9 November 2006 –
“… shows intervertebral disc degenerative changes and facet joint deterioration in the lower lumbar spine.”
54 Mr Conroy considered that the history and examination was –
“… consistent with aggravated lumbar spondylosis with referred pain to the legs … .”
55 He further considered there was a –
“… clinical history and examination findings compatible with a specific injury, that is aggravated intervertebral disc deterioration.”[43]
[43]Exhibit M, DCB 88, 89 and 90
56 Finally, Mr Michael Dooley examined the plaintiff on behalf of the defendant on 11 October 2012 and 24 July 2013.[44] On the first occasion he took a history that the plaintiff noted increased lower back pain in the course of his work in March of 2003 after carrying out what he termed “heavy physical work”. Thereafter, he noted ongoing intermittent neck and low back pain but he continued in his work. He did require some short periods off work because of the pain and had some physiotherapy treatment. He ceased working towards the end of 2008 when the factory closed down. At that time he was working mainly in a light duties capacity.
[44]Exhibit L
57 At that stage, the low back pain was described as constant and he was taking Panadol Osteo and Panadeine Forte, together with Norspan patches. On reviewing the radiology, he recorded that:
“CT scanning of the lumbar spine in 2003 showed evidence of degeneration and an associated left sided lumbosacral disc prolapse extending into the exit foramen and compressing the left L5 nerve root. MRI scanning in October of 2003 reports an asymmetric broad based disc bulge mainly on the left side of the lumbosacral level.”[45]
[45]Exhibit L, DCB 61
58 Mr Dooley thought the plaintiff had –
“… age related and naturally occurring degenerative disc disease of the cervical and lumbar spine regions.”
59 He further stated:
“Given the type of work he was carrying out certainly Mr Holovka could have aggravated degenerative disc disease of the cervical and lumbar spine regions during the course of his work. He describes aggravation in March of 2003 with ongoing pain. He was however able to continue to work mainly in a light duties capacity until the factory closed in 2008.”[46]
[46]Exhibit L, DCB 61
60 Further, he considered:
“In 2003 he was reporting left lower limb pain most likely sciatica in nature. Radiological investigation and clinical examination at the time did suggest irritation of the left L5 nerve root.”[47]
[47]Exhibit L, DCB 61
61 Although recording the prior motorcar accidents in 1980 and 1989, Mr Dooley stated:
“Given the nature of his work, it is likely that he sustained aggravations of underlying degenerative disc disease at times prior to October 20, 1999 and prior to 2003. He described specifically injuring his back at work in 1973 or 1974. As outlined above, he described his back and neck pain increasing in 2003 and I believe that this related to aggravations sustained during the course of his work.”[48]
[48]Exhibit L, DCB 62
62 After the second examination, he stated:
“As previously noted I believe that during the course of his work Mr Holovka has aggravated underlying degenerative disc disease of the cervical and lumbar spine regions at various times.”[49]
[49]Exhibit L, DCB 64C
63 It is to be noted in the affidavit of Andrew McIntosh sworn 15 October 2012 on behalf of the defendant, that there was no attempt to deny the heavy nature of the plaintiff’s employment or complaints in respect thereto as attested to by the plaintiff.
64 Given the consistency of history, the lack of attack on his credit and the concession that he is a stoical individual, I consider that the plaintiff has discharged the onus of proof that the work between October 1999 and December 2008 was a significant contributing factor to the aggravation of his degenerative disc disease, particularly at L5-S1, such that the condition of his lumbar spine at that time and beyond has left him in a situation where he is not fit for heavy work, and is only fit for the intermittent light work he has performed since that time.
65 Accordingly, on a Petkovski v Galletti[50] basis, the difference in his impairments before and after October 1999 is really significantly measured by the fact that prior to that date, he was able to work in full-time duties and after December 2008, his employment capacities were severely restricted on account of his back condition.
[50]Supra
Pain and suffering consequences of aggravation injury – principles
66 As has been set out on a number of occasions, but in particular in the Court of Appeal decision of Sutton v Laminex Group Pty Ltd:[51]
“The pain and suffering consequences of a compensable injury extend beyond the physical experience of pain to include the debilitating effect on a person’s life.”
[51][2011] VSCA 52 at paragraph [46]
67 The Court of Appeal recited with approval the dicta of President Maxwell in Haden Engineering Pty Ltd v McKinnon,[52] where his Honour recorded:
[52](2010) 31 VR 1 at paragraphs [9] to [11]
68 The Court of Appeal recited with approval the dicta of President Maxwell in Haden Engineering Pty Ltd v McKinnon,[53] where his Honour recorded:
[53](supra) at paragraphs [9] to [11]
“[T]he ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life …
The experience of pain
As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale “mild/moderate/severe”. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
[47] Relevantly to the issues on this appeal, Maxwell P pointed out that the first evidentiary basis will turn on an assessment of a plaintiff’s credit. He said:
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
[48] An assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism. Approving what was said in Dwyer v Calco Timbers Pty Ltd (No 2) by Nettle JA, Maxwell P observed:
As to (d), the cases recognise that some plaintiffs may be more “stoical” than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the “stoical” plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the “objective” evidence of the disabling effect may be of less significance than usual.
[49] To identify the disabling effect of pain requires an understanding both of a plaintiff’s pre-injury and post-injury employment and activities, although this does not amount to a simple comparison. As Maxwell P explained:
The disabling effect of pain
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘ … [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is to the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’
[50] Assessing loss of enjoyment of life, in a broad sense, requires an understanding of the effect of the impairment upon numerous aspects of a plaintiff’s daily life and activities. In this respect, Maxwell P said:
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”
Pain and suffering consequences of compensable physical injury
69 It is clear that the plaintiff is suffering ongoing pain with respect to his lumbar spine since 2008. His general practitioner has prescribed a variety of treatments with respect to same, including Norspan patches, Panadeine Forte, Tramal and other analgesia with respect to “chronic work-related back pain”.[54]
[54]Exhibit N, Consultation on 30 March 2012
70 In particular, the general practitioner has recorded, on 15 April 2010:
“Discuss re family issues – in pain constantly and trying to find casual job.”[55]
[55]Exhibit N
71 Further, on 23 June 2011, the general practitioner has recorded:
“Able to work – casual work but had severe low back pain. Requires prescription Panadeine Forte tablets.”[56]
[56]Exhibit N
72 Thereafter, on 8 September 2011, the general practitioner has recorded:
“Has not been working. Given up the casual job. Has not worked for last six weeks at Alley SAT. Could not cope. Prescribed Lexapro tablets.”[57]
[57]Exhibit N
73 The plaintiff, himself, in his affidavit sworn 19 October 2011, swore that in about 2009, he did some casual work for about one month selling chocolates and rubbish bags door to door for a disability organisation at homes between 4.00pm and 7.00pm for three hours per day, five days a week. He said he had to stop this job because of his continuing back and neck pain.[58]
[58]Exhibit A, PCB 29
74 Thereafter, in about May 2009, August 2010 and July 2011, he made attempts at trying to do casual work for a good friend who works with tiles. At these times he worked for about two weeks at a time, working about three to four hours per day. This work involved doing some basic cleaning and tidying up and he stated his friend –
“… took it easy on me and he allowed me to work when I was able to and to rest when I needed to. I was experiencing a lot of back pain. Now, I know that I cannot even cope with this basic type of work.”[59]
[59]Exhibit A, PCB 29
75 Dr Srinivasan, the treating general practitioner, has recorded that since December 2008, the plaintiff –
“… continues to have severe low back pain but completes odd jobs from time to time. His low back pain continues to worsen.”[60]
[60]Exhibit C, PCB 42
76 The general practitioner also recites that since December 2008, the plaintiff –
“… has also started to suffer from depression, which is in part due to his back pain. At this stage, he is not keen to attend counselling or take antidepressants.”[61]
[61]Exhibit C, PCB 42
77 It is common ground that since his retrenchment in December 2008, the plaintiff has spiralled downwards with respect to drinking and gambling problems. He has gambled away his retrenchment package and his wife has left him. He, himself, states that he pursued the work with his friend because he was “desperate for money”.[62]
[62]Exhibit A, PCB 29
78 The defendant relies upon an admission by the plaintiff that it was the fact of retrenchment and loss of his job and the companionship of his workmates that led to his depression. No doubt it did. But it is clear to me that in the context of gambling away his retrenchment package and thus struggling financially, that his back condition was the major impediment for him to obtain a job because he “needed to pay a few bills”.[63]
[63]Exhibit A, PCB 29
79 In my view, the plaintiff has discharged the onus of proof that the limit of his capacity for employment is that expressed in paragraph 24 of his affidavit sworn 19 October 2011.[64] It is clear that, even allowing for a permanent position of three to four hours a day doing light work in a virtual protected work environment supplied by a friend, that this discharges the plaintiff’s onus with respect to the 40 per cent permanent loss of earning capacity.
[64]Exhibit A, PCB 29
80 Further, taking into account the plaintiff’s experience of pain and disabilities and his honest presentation, it is my opinion that the pain and suffering consequences to which the physical compensable injury materially contributes are “very considerable” and more than “significant or marked”. I consider that his aggravation injury to the lumbar spine has met the threshold test for leave to bring proceedings for damages under s134AB(16)(b) of the Act both with respect to pain and suffering and pecuniary loss damages.[65]
[65]See also Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
81 In view of these findings, I do not find it necessary to decide the plaintiff’s claim under paragraph (c) of the definition of serious injury.
82 I will hear the parties as to consequential orders.
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