Hooper v Vegco Pty Ltd
[2013] VCC 455
•1 May 2013 (Revised)
| 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-11-05226
| ROBERT JAMES ALEXANDER HOOPER | Plaintiff |
| v | |
| VEGCO PTY LTD (ACN 058 693 413) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2013 | |
DATE OF JUDGMENT: | 1 May 2013 (Revised) | |
CASE MAY BE CITED AS: | Hooper v Vegco Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 455 | |
REASONS FOR JUDGMENT
---
SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Prior injury to the lower back – analysis of the extent of the impairment of function of the lower back before and after the occurrence of the relevant injury – Petkovski v Galletti [1994] 1 VR 436
LEGISLATION CITED: Accident Compensation Act 1985, s134AB
CASES CITED: Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz [2012] VSCA 60
JUDGMENT: The plaintiff have leave to bring a proceeding to recover damages at common law for pain and suffering.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan | Robinson Gill |
| For the Defendant | Ms M Tsikaris | Wisewould Mahoney |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 3 November 2011 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Ms F Ryan of Counsel appeared for the plaintiff and Ms M Tsikaris of Counsel appeared for the defendant.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 6-54: Exhibit A;
· The defendant tendered a disclosure of pre-existing injuries or diseases form signed by the plaintiff on 28 September 2008: Exhibit 1;
· The defendant tendered a Transport Accident Commission physiotherapy management review form dated 16 August 2005: Exhibit 2;
· The defendant tendered a pre-employment medical performed by Dr Chuo, general practitioner, dated 7 June 2011: Exhibit 3;
· The defendant tendered a report of Dr R Ziffer, physician, dated 4 November 2010: Exhibit 4;
· The defendant tendered its Court Book (“DCB”), pages 4-16, and from the plaintiff's Court Book, pages 57-58 and 88-90: Exhibit 5;
· The defendant tendered an extract of the clinical notes of Dr Wysocka-Grobinska: Exhibit 6.
6 The application is brought under the definition of “serious injury” contained ss(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has a suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622
Background
8 The plaintiff was born in 1951. He is now sixty-two years of age. He is a married man. He grew up in country Victoria. He was born in Yarck, where he attended school until he was fifteen years of age. He later lived in Morwell.
9 After leaving school, the plaintiff worked as a labourer on farms, as a petrol station attendant, as part of a work gang, in factory work and for the railways, and in June 2004, he commenced work with the defendant as a cleaner.
The Issues
10 The plaintiff suffered injury to his lower back on two occasions prior to commencing employment with the defendant. Subsequently, and in the course of his employment with the defendant, he suffered further injury to his lower back on three occasions.
11 The first issue is whether the plaintiff can aggregate the injuries he suffered to his lower back in the course of his employment with the defendant and claim that it is the consequences of the impairment of function of the aggregation that I should consider when determining whether he has suffered a serious injury.
12 The second issue is, if I consider that I cannot approach the matter in that manner, whether the aggravation of the underlying degenerative changes which the plaintiff suffered in an incident at work on 24 September 2008 of itself produced consequences of an impairment of the function of the plaintiff's lower back which are “serious”.
The Prior Injuries
13 The plaintiff first suffered injury to his lower back in the late eighties or in the early nineties. He was working for the railways at that time. He suffered an injury to his lower back when raking crushed rock. He sought and obtained medical treatment. On the recommendation of the medical practitioner who was treating him, he was advised to go off work. He was off work for the following twelve months.[2]
[2]PCB 7-8, and Transcript (“T”) 9 -10 and 49-50
14 The plaintiff had some difficulty remembering exactly when it was that he suffered that injury to his lower back. The best he could do was to say that he was about thirty years of age, or was in his thirties. The plaintiff is now sixty-two years of age. If he was about thirty or so when he suffered that injury to his lower back, then it occurred in about 1982, or in the following few years.[3]
[3]T56-57
15 The plaintiff made a reasonable recovery from the injury to the extent that he was able to return to work. He was left with niggling pain in his lower back insufficient to prevent him from working.
16 On 26 February 2003, the plaintiff was involved in a major transport accident. The car in which he was travelling was struck by another car. His car rolled three times. The roof of the car was crushed. Its roof hit the plaintiff on the head and pushed down on his neck. He was treated for an injury to his neck, a laceration to his head, and he also experienced some slight pain in his lower back. He saw Dr Wysocka-Grobinska (referred to by the plaintiff as “Dr Wanda”), general practitioner, for treatment. He also had chiropractic and physiotherapy treatment. He experienced lower back pain thereafter, but insufficient to prevent him from working.[4]
[4]PCB 8
17 The plaintiff commenced working for the defendant in June 2004 as a cleaner. He worked night shift. His usual shift hours were from 8.00pm to 3.00am; however, he mostly worked 10-hour shifts, working up to 42 hours per week. His cleaning work exposed him to chemicals, which resulted in him suffering chest pain. He was subsequently moved into the packing area which required him to work on a production line. He alternated between packing bags of salad into boxes which were placed on pallets and constructing cardboard boxes and undertaking some administration referable to the production line. He was later moved to an area known as the “wash”, where salad vegetables were washed prior to packing, and then to the “trim” where vegetables, such as lettuce, were trimmed.
18 On 27 May 2005, the plaintiff was working in the “trim” area, which required him to work at a raised platform. Access to the raised platform was obtained by six steps. The plaintiff was ascending the steps when he slipped. He grabbed the handrail on his right side, but jarred his lower back. He felt pain in the left side of his lower back. He completed the shift, but the next day he woke with strong backache over the left side of his lower back.[5]
[5]PCB 10
19 The plaintiff saw Dr Wanda on 30 May 2005. By the time he saw her he was experiencing pain in his lower back, with pain radiating into his right leg and with a tingling sensation in his right foot. He was prescribed Panadeine Forte for pain relief. He returned to work after a three week absence on light duties, sorting bags of carrots. He was rotated onto other work, and on 12 July 2005, he was cleared to return to unrestricted duties by Dr Wanda.
20 On 2 November 2005, the plaintiff was working in the “wet pack” area. He lifted a tub containing salad dressing condiments which weighed about 20 kilograms. He lifted the tub, and as he twisted he felt pain in the left side of his lower back. Overnight he experienced severe pain. His wife took him to the Bairnsdale Hospital where, presumably, he received some treatment.[6]
[6]PCB 10
21 The plaintiff saw Dr Wanda on 2 November 2005. She recorded that the plaintiff was lifting heavy crates and as a result developed acute left-sided lower back pain, pain radiating into his left leg and muscle spasm in the left side of his lower back. She was of the opinion that the incident had “… aggravated a previous injury, and left-sided sciatica”.[7]
[7]PCB 24
22 The first report of Dr Wanda is dated 20 January 2006. It commences with a description of the incident which occurred on 2 November 2005. It is in that report that she refers to the aggravation of a previous injury and left-sided sciatica. It is unclear what Dr Wanda was referring to when she referred to an aggravation of a previous injury. I assume she was referring to the injury suffered by the plaintiff to his lower back on 30 May 2005.
23 In any event, Dr Wanda was of the opinion that the incident which occurred on 2 November 2005 resulted in the plaintiff suffering acute muscle spasm to the left side of his lower back and left-sided sciatica. She considered that his work was a significant contributing factor to the occurrence of the injury. She referred to aspects of the plaintiff's capacity to work, return to work plans, and ultimately the plaintiff's return to work on the “scrubbed fruit” line which was successful, and which saw the plaintiff return to work eight hours per day. Dr Wanda expected that the plaintiff would be able to return to that work 10 hours per day.[8]
[8]PCB 24-25
24 The plaintiff said that he returned to work on 20 November 2005 on reduced hours and light duties. He did not say whether he returned to work on the “scrubbed fruit” line. However, on what Dr Wanda has referred to in her first report, it would appear that the plaintiff at least returned to work 8 hours per day on the “scrubbed fruit” line.
25 By 2008, the plaintiff was working in an area called the “potted and layered” section. The work involved taking a pot from his left side, loading it into a machine, spinning the pot manually so that a plastic cling film lid would be placed over the pot, and then taking the pot and placing it to his right side. Those tasks required continual twisting. On 24 September 2008, whilst working on those tasks, he experienced pain in his lower back and pins and needles down his left leg.[9]
[9]PCB 10-11
26 Before turning to any of the medical evidence relevant to the injury suffered by the plaintiff on 24 September 2008, I propose to deal with the issue of law raised by Mr Ryan.
Aggregation
27 I think it is open to a worker who is involved in a transaction of work which exposes the worker to multiple injuries to one body part to make a claim that it was the course of that work which produced the injury. For example, where a worker is involved in packing over some years, which involves bending and lifting in carrying, with resultant strains of the lower back leading to a back injury, they can claim the whole period of that work as responsible for the production of the injury.
28 Compare that to a worker who is employed as a labourer in a factory who ends up with an injury to a body part which has been contributed to by separate incidents which are not part of the same transaction of work as in the example I have given in the preceding paragraph. Can the worker aggregate the injuries resulting from each of the episodes?
29 It seems to me that the answer is straightforward. Petkovski v Galletti[10] stands for the proposition that in an application for serious injury, where there has been an aggravation of a pre-existing condition, it is for the worker to establish what injury was caused by the relevant incident. This must involve an analysis of the extent of the impairment of a body function before and after the occurrence of the relevant injury, and the additional impairment resulting from the aggravation must satisfy the statutory test. This principle has been cited with approval by the Court of Appeal repeatedly.[11]
[10][1994] 1 VR 436
[11]See for example, AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz [2012] VSCA 60
30 I am not persuaded that the facts on which this proceeding is based comes within the range of the first example I gave of the worker who suffers multiple injuries to the same body part resulting from the same transaction of work. By the time the plaintiff engaged upon the work in the “potted and layered” area, he had suffered multiple insults to his lower back over the years which, on the medical evidence I will review shortly, appear to have contributed to the injury and the impairment of function on which this application is based.
31 Ms Ryan submitted that if I ruled in that way, that the alternative position of the plaintiff is that he suffered a further injury as a result of the incident which occurred on 24 September 2008 which resulted in impairment with consequences which are serious.
32 In the end, I am not satisfied that the plaintiff can aggregate the injuries suffered in the course of his employment with the defendant because they occurred in different circumstances and are not consistent with the example I gave of the worker who suffers an injury in the course of doing the same transaction of work. Therefore, I must follow the method of assessment of the injury and the impairment which occurred on 24 September 2008 in the manner enunciated in Petkovski.
The Pre-existing Injury and Impairment
33 I should firstly deal with the plaintiff's creditworthiness and reliability. Ms Tsikaris made a general attack on the plaintiff’s creditworthiness. I have considered that attack in the context of the evidence which I accept, and in the end, I am not satisfied that the attack on the plaintiff’s creditworthiness has so infected my view of the plaintiff's evidence overall that I should not accept his evidence.
34 Before the incident which occurred on 24 September 2008, the plaintiff was working full time in the “potted and layered” area. In his affidavit sworn on 2 June 2011, he said that prior to what occurred on 24 September 2008, he experienced pins and needles in his left leg which mostly stopped around his buttocks and rarely went down any further. After that incident, he not only experienced pain in his lower back, but pins and needles going down his left leg, and I infer that the left leg pain extended down below his left knee. When cross-examined, the plaintiff denied that he suffered any pain in his left leg prior to this incident at work.[12]
[12]Transcript 21
35 The plaintiff also worked a second job. He commenced work at a transfer station in 1999. It was a full-time job. Initially, he worked seven hours per day. His hours were cut back to four hours per day, which prompted him to look for alternative employment. It was then that he applied for the job with the defendant. He retained his employment at the transfer station, working four hours on a Saturday and four hours on a Sunday. He now works those hours, but each alternate weekend.[13]
[13]Transcript 11
36 The plaintiff was treated by Dr Wanda. Unfortunately, Dr Wanda’s report dated 20 January 2006 is not very edifying. It does not refer to any treatment provided to the plaintiff. In his affidavit sworn 2 June 2011, the plaintiff said that after seeing Dr Wanda on 4 November 2005, he was prescribed Panadeine Forte for pain relief. He returned to see her on 14 November 2005, and then was cleared by her on 20 November 2005 to return to work. He was referred to have an x-ray in December 2005, but there is no evidence to demonstrate what the x-ray showed.
37 The incident which occurred on 27 May 2005 resulted in the plaintiff suffering pain in his lower back and pain in his right leg, with a tingling sensation going down into his right foot. I referred earlier to the conflict in what the plaintiff said about that in his affidavit sworn 2 June 2011 and what is contained in Dr Wanda’s report dated 20 January 2006. When cross-examined, the plaintiff denied that he suffered any pain in his left leg as a result of this incident at work.[14]
[14]Transcript 21
38 The plaintiff was referred to have physiotherapy. He was referred to Ms McNeill, physiotherapist, who wrote to Dr Wanda on 8 March 2006 and 18 July 2006. In the first letter, she referred to the plaintiff having an occasional grabbing sensation in his lower lumbar spine, and in the second letter, she referred to the plaintiff having pain in his lower lumbar spine on the left side, with occasional referred pain into the left posterior thigh.[15]
[15]PCB 36-37
39 Before turning to the medical evidence which condescends to the injury and the impairment to the plaintiff's lower back which was evident prior to the incident which occurred on 24 September 2008, I propose to make some preliminary findings.
40 Firstly, I find that the plaintiff was capable of undertaking full-time work in the “potted and layered” area, and was working without any interference from his pre-existing lower back injury and the impairment resulting from it, and had done so since he returned to work on 20 November 2005. He then worked for just short of three years, doing that work without apparent incident, and was also able to maintain his work at the transfer station.
41 Secondly, after the initial treatment provided by Dr Wanda following the incidents which occurred on 27 May 2005 and 2 November 2005, the plaintiff does not appear to have had any treatment of any significance, and indeed, there is no evidence to suggest he had any treatment after having the x-ray in December 2005, except for some physiotherapy.
42 Thirdly, I find that it is likely that the plaintiff had some level of pain in his lower back and some radiation of pain from his lower back into his left leg down to the knee, but no further. It is likely that the pain was easily tolerated by the plaintiff, because he was able to work two jobs and had no medical treatment of any significance, as I have observed above. I prefer the plaintiff’s evidence contained in his affidavit sworn 2 June 2011 relevant to the residual consequences of the injuries he suffered to his lower back as a result of the incidents at work on 27 May 2005 and 2 November 2005.
The Medical Evidence
43 The course of events for the plaintiff following the injury he suffered on 24 September 2008 is in stark contrast to the injuries he suffered on 27 May 2005 and 2 November 2005.
44 The plaintiff saw Dr Grabinski, general practitioner, on 24 September 2008. He worked at the same clinic as Dr Wanda. His clinical note for 24 September 2008 is as follows:
“Backache, lower back pain. Has bee[n] there from long-time on and off.
Works for VEGCO lifts thing[s] and repetitive turning movement standing by the machine.
Pain back radiating along left leg.
SLT slight pain and 80 degrees elevation … .”[16]
[16]Exhibit 6
45 On that occasion, Dr Grabinski prescribed the plaintiff Tramal for pain relief. The plaintiff subsequently saw Dr Wanda for treatment for his lower back on 6, 14 and 23 October 2008; 7 and 14 November 2008; 8 December 2008; 8 January 2009; 10 March 2009; 9 April 2009; 7 and 28 May 2009; 10 July 2009; 9 September 2009; 9 October 2009; 9 November 2009; 10 December 2009; 7 April 2010; 15 September 2010 and 2 December 2010.[17]
[17]Exhibit 6
46 The entries in the clinical notes between 26 September 2008 and 10 December 2009 disclose that the plaintiff was having significant problems with his lower back. Early on he had pain in his left leg with pins and needles. By 7 May 2009, the pins and needles had disappeared, but the plaintiff still had pain in his lower back. By 10 July 2009, after the plaintiff had returned to work on restricted duties, he was having pain in his lower back on and off. By 9 September 2009, he was walking a bit better, and on some days had pain on the left side of his back, no left leg pain and was coping well with his work restrictions. By 10 December 2009, he was still having pain in his lower back which seemed to be aggravated by twisting and picking up heavy objects, such as when cutting and loading wood. By 15 September 2010, he was working full duties and at times had pain in his lower back. He used Panadol for pain relief. By 2 December 2010, he was assessed as fit to undertake suitable employment.
47 Between 24 September 2008 and 15 September 2010, Dr Wanda prescribed the plaintiff with a variety of medication, namely, Endep, Panamax, Tramal, Mobic, Panadol Osteo and Panadeine Forte. On 15 September 2010, his prescriptions for Panadeine Forte were ceased. On that occasion, he was given a prescription for Panadol Osteo.[18] The plaintiff now uses medication he described as “Panadeine Arthritic” which he is able to buy over the counter. His average dosage is to take two per day, but he may take up to four per day.[19]
[18]Exhibit 6. The last entry in the notes relevant to a visit to the clinic is 1 April 2011.
[19]Transcript 38-39
48 The clinical notes also reveal that the plaintiff was referred to have physiotherapy. He was referred to Mr Delaney, physiotherapist, who commenced treating the plaintiff on 7 May 2009.[20] Mr Delaney provided two reports, but in neither does he refer to the period over which he provided the plaintiff with physiotherapy treatment. However, the plaintiff referred to seeing Dr Wanda in October 2008 with pain in his lower back, which was not improving, and having difficulty sitting and standing for long periods of time, which was around the time that he was referred to physiotherapy. The first entry in the clinical notes referring to physiotherapy was on 6 October 2008, by which time the plaintiff was attending physiotherapy.[21]
[20]PCB 33-35
[21]Exhibit 6
49 Dr Wanda referred the plaintiff to have a CT scan, which was taken on 1 October 2008. It did not demonstrate any particular abnormality. The plaintiff was subsequently referred to have an MRI scan, which was taken on 24 June 2009, which demonstrated L4-5 facetal osteoarthritis, more severe on the left than the right.[22]
[22]PCB 22 and 22a
50 Dr Wanda referred the plaintiff to Dr Mitchell, physician, who saw the plaintiff on one occasion on 25 November 2008. The plaintiff told him that he was experiencing significant pain. He also told him that he was taking Endep, Mobic, Pariet and Tramadol for pain relief. Dr Mitchell requested permission from CGU to have the plaintiff undergo an injection for pain relief. There was a delay in the permission being given, but it was eventually given on 1 October 2009. The plaintiff underwent a left sacroiliac joint and deep interosseous ligament injection on 22 October 2009. Dr Mitchell expected the plaintiff to return for review, but he did not do so.[23]
[23]PCB 30-32
51 The plaintiff said that he obtained some relief after having the injection, but it was short lived. The clinical notes of 9 November 2009 refer to the plaintiff feeling eighty per cent better, but on the next occasion he saw Dr Wanda on 10 December 2009, he complained of pain in his lower back on twisting and picking up heavy objects.[24]
[24]Exhibit 6
52 Dr Wanda provided a report dated 31 August 2009 in which she offered the following opinion relevant to the injury suffered by the plaintiff on 24 September 2008:
“a)Mr Hooper reported for consultation on the 26/8/2008 with pain in the lower back radiating to left leg with pins and needles in the back of legs. He states that he was performing repetitive turning in twisting loading the conveyor at work on the 23/9/08. The repetitive movement has exacerbated his previous injury sustained on 2/11/2005.”[25]
[25]PCB 27. For some reason Dr Wanda included incorrect dates. 26/8/2008 should be 24 September 2008, and 23/9/08 should be 24 September 2008.
53 Dr Wanda was of the opinion that the plaintiff had suffered a lower back strain with left sacral joint dysfunction, although she later said that she did not have a formal diagnosis. She considered that he was partially incapacitated for his previous employment.
54 On examination, Dr Mitchell considered that the plaintiff had major left sacroiliac joint signs and that his buttock pain is coming from either his lower lumbar facets or his sacroiliac joint.[26] However, Dr Mitchell said that he did not have a diagnosis, and was unable to provide a prognosis.
[26]PCB 31
The Medico-Legal Opinions
55 The plaintiff was examined by Mr Simm, orthopaedic surgeon, on 28 March 2012 and 23 January 2012. In his first report dated 28 March 2012, he obtained a history of the incidents which occurred on 27 May 2005, 2 November 2005 and 24 September 2008, although he was given the wrong dates for the occurrence of the first two incidents. He attempted to correct the dates in his second report dated 23 January 2013.
56 Mr Simm obtained a history of the plaintiff's symptoms, and he conducted an examination of the plaintiff, finding, among other things, that the plaintiff had a left-sided limp which he thought was due to left sacroiliac pain, and mild to moderate restriction of the thoracolumbar spine associated with pain in the lumbar spine.
57 Mr Simm said that he was unable to establish a definite diagnosis, but then said:
“He presented with features of chronic, relapsing, non-specific mechanical low back pain with referred pain into the left sacro-iliac joint. The most likely cause for the pain as early underlying degenerative changes as reported on the MRI scan.”[27]
[27]PCB 52
58 In relation to contribution by the incidents to the ultimate injury to the plaintiff’s lower back, Mr Simm said:
“Each of the claimed injuries probably represents an aggravation of pre-existing degenerative lumbar pathology. Each of the three injuries has probably contributed to his current clinical condition. I noted in your letter of instructions that you have requested my opinion as to which injury/aggravation materially contributed to his current presentation. I do not think it is possible to scientifically respond to this question, and that all three work related injuries with Vegco have influenced the clinical course of his lower back condition. It is a matter of record that after each of the injuries in 2005 he was able to go back to unrestricted duties, which included repeated and moderately heavy lifting. He was not able to go back to this type of work after the third injury on 23 September 2008. These observations suggest that the most severe injury occurred on 23 September 2008, which permanently modified his capacity for physical work.”[28]
[28]PCB 52
59 Dr Wanda provided a number of medical reports but did not undertake the exercise which Mr Simm undertook to try to distinguish which injury resulted in the more serious injury. In her last report dated 18 May 2012, she was of the opinion that the plaintiff’s lower back injury was stable and that he was able to perform restricted duties.
60 Dr Lewis, rheumatologist, examined the plaintiff on 2 May 2012. He was given a similar history to Mr Simm regarding what injuries the plaintiff sustained on 27 May 2005, 2 November 2005 and 24 September 2008; however, he was given the wrong dates, which I do not think matters much. He did not distinguish which injury resulted in the more serious injury. He simply referred to the injury as a work induced injury which was stable, unlikely to deteriorate in the short or long term, but which partially incapacitated the plaintiff for lifting heavy weights, bending or twisting repetitively.[29]
[29]PCB 44-47
61 Mr Jones, orthopaedic surgeon examined the plaintiff for the defendant on 2 May 2012 and 27 March 2013. He was provided with the reports of Mr Simm. Mr Jones was of the opinion that, in relation to the injuries suffered by the plaintiff on 27 May 2005, 2 November 2005 and 24 September 2008, the plaintiff’s complaints were consistent with degenerative disc disease at the L4‑5 level of his lumbar spine with some associated facet joint arthritis affecting the plaintiff’s lower back. He was of the opinion that the plaintiff's lower back condition would preclude him from undertaking work which required repeated bending or lifting of weights over 10 kilograms.[30]
[30]DCB 12-16
62 The latter opinion was expressed by Mr Jones after examining the plaintiff on 27 March 2013. Following his examination of the plaintiff on the earlier occasion, he said the following:
“It does not appear that the injury described on 27.05.2005, 02.11.2005 or 24.09.2008 made a significant contributing factor to his previously injured lower back based on this man is history, x-rays and examination findings.”[31]
[31]DCB 10
63 I assume that the reference to the plaintiff’s previously injured lower back is a reference to the history taken by Mr Jones of the plaintiff’s injury suffered when he worked with the railways. However, the history given to Mr Jones gives the impression that the plaintiff’s capacity to work was adversely affected after suffering that lower back injury. A comparison with the true picture of the plaintiff’s work following his absence from work for twelve months, and then his return to work, paints a very different picture. It was my strong impression that the plaintiff returned to work following his twelve-month absence from the railways work, and that he followed full-time work, insofar as it was available to him, until he obtained full-time work with the defendant in June 2004.
64 Dr Wanda, Mr Simm nor Dr Lewis were given the history of the injury suffered by the plaintiff when he worked with the railways. I am not satisfied that the injury he suffered with the railways is of much importance, because it was an injury he suffered in about 1982, or not long thereafter. The plaintiff suffered that injury some twenty-three or so years before 2005, when he first suffered injury in his employment with the defendant. In the meantime, he worked to the extent I have described in the preceding paragraph.
65 At present, the plaintiff is working 20 hours per week over a four-day week and additionally works on the transfer station each alternate weekend. He described the work he now does, and the problems he has as follows:
Q: “And what did that new position entail?---
A:Cleaning toilets and putting hairnets and beard masks around at the doors, and different light duties that I could handle.
Q:And is that the sort of work that you continue to do today?---
A:Yes I do.
Q:Since 2010, or since taking up those new duties in 2010, what has the condition of your back been like?---
A:Still painful and I’ve just got to be very careful what I do, because if I bend, or twist the wrong way it - it just goes straightaway, and I am still in pain each day I work with it.”[32]
[32]Transcript 53
Cross-Examination
66 M Tsikaris cross-examined the plaintiff by reference to a number of documents which were taken from the files which were subpoenaed. I expressed my dissatisfaction that the documents were not placed in the Defendant’s Court Book as I think they should have been. It was clear to me that the solicitors for the defendant had an opportunity prior to the trial to peruse the files, and to copy what documents they wanted from the files.
67 The first of those documents was a disclosure of pre-existing injuries or diseases signed by the plaintiff on 28 September 2008. That date is four days after 24 September 2008, when the plaintiff claims that he suffered an injury which has impaired the function of his back with consequences which meet the test in Petkovski, and with consequences which are “serious”.
68 Ms Tsikaris put to the plaintiff that it was a document which he prepared. The plaintiff said that he did not recollect completing the document, but acknowledged that the signature on the first page is his. He was taken to questions set out on the second page, and in particular, to Question 6, which asked whether he had back pain lasting more than two weeks and sciatica, to which he said “Yes”, for one-and-a-half to two years, for which he took Panadol, and Question 12, whether he had difficulty lifting heavy objects to which he said “Yes, up to 10 kilograms”.[33]
[33]Exhibit 1
69 The next document which was put to the plaintiff was a Transport Accident Commission Physiotherapy Management Review form signed by him on 16 August 2008. The form discloses that the plaintiff was receiving physiotherapy for injuries he suffered to his neck and lower back in the transport accident which occurred on 26 February 2003. The physiotherapist diagnosed a lumbar disc injury and cervical joint facet strains. The physiotherapist recorded a history that the plaintiff was experiencing lower back pain every day in his work as a line feeder. The physiotherapist recommended treatment for a further four to five weeks.
70 The plaintiff said he did not remember completing the form, but he acknowledged that the signature on the second page is his. He said that he thought he was having treatment for his neck, head and collarbone, but he acknowledged that the document disclosed that he was also having treatment for his lower back which was rendered painful by his work as a line feeder.[34]
[34]Exhibit 2, and transcript 24-25
71 The next document put to the plaintiff was a pre-employment medical obtained by the East Gippsland Shire Council. The plaintiff signed it on 7 June 2011. The third page contains a medical examination conducted by Dr Chuo, general practitioner. The plaintiff referred to having made a WorkCover claim relevant to suffering lower back pain/sciatica. When he was examined by Dr Chuo, she found no abnormality in his lumbar sacral spine.[35] The pre-employment medical examination was conducted by the Shire Council relevant to the plaintiff's work at the transfer station.
[35]Exhibit 3, 28-29
72 The last document put to the plaintiff was a report of Dr Ziffer dated 4 November 2010. His report directed to Dr Wanda discloses that he took a history from the plaintiff that he was suffering from left-sided chest discomfort which had occurred after a period of heavy arm exercise, a lot of lifting at work and using a chainsaw. The plaintiff denied that he had used a chainsaw in any significant way at the time when he was examined by Dr Ziffer. He said that the reference to heavy arm exercise might be related to tipping bins and hosing them down, although he was guessing at what was referring to.[36]
[36]Exhibit 4, and Transcript 33-35
73 Additionally, Ms Tsikaris cross-examined the plaintiff that it was the aggregate of all of the incidents which contributed to the problems he presently has with his lower back, and not the injury he suffered on 24 September 2008, and that if there was a significant injury suffered by the plaintiff on that occasion, that the consequences of the impairment of function of his lower back are not “serious”.
Findings
74 In relation to the injuries which the plaintiff suffered to his lower back prior to 24 September 2008, the summary of my findings is as follows:
· The plaintiff suffered an injury to his lower back when working with the railways in around 1982, or in the few years thereafter. He was off work for twelve months on medical advice. He then returned to work, and my strong impression is that he returned to full-time work and reached a point where he worked in a relatively unrestricted fashion.
· On 26 February 2003, the plaintiff was involved in a major transport accident. I accept the plaintiff's evidence that the major injuries from which he suffered were to his neck, head and collarbone. I do not accept that the opinion of the physiotherapist that he had suffered a lumbar disc injury has any foundation. There is no radiological or medical evidence to support that finding. Indeed, the radiological and the medical evidence points to the plaintiff suffering an injury consistent with the opinion of Mr Simm, that the plaintiff has probably suffered an aggravation of pre-existing degenerative lumbar pathology. The plaintiff may well have suffered pain in his lower back while working as a line feeder, but the evidence discloses that the plaintiff was working full-time at that stage.
· I accept that the plaintiff suffered injury to his lower back on 27 May 2005, and then again on 2 November 2005. I have already said that it is probable that the plaintiff had some lower back pain following those incidents, and up to 24 November 2008, because he said as much in his first affidavit. However, by 2008, he was working in the “potted and layered” area. It seems to me to have been relatively demanding physical work.
· I am not persuaded that the disclosure of pre-existing injuries or diseases form, the Transport Accident Commission Physiotherapy Management Review, the pre-employment medical obtained by the East Gippsland Shire Council and the report of Dr Ziffer undermine the credit of the plaintiff. I have carefully examined the plaintiff’s evidence against the evidence of Dr Wanda, Dr Mitchell, Mr Delaney and Ms McNeill, which leads me to conclude that it is probable that the plaintiff, at least, had intermittent problems with his lower back which were worsened by the transport accident and the incidents on 27 May 2005 and 2 November 2005. However, I am most persuaded by the opinion of Mr Simm, who seems to me to have put into context how each of those incidents and the injuries which they produced should be dealt with.
75 In relation to the test postulated in Petkovski, I merely repeat the findings that I made above relevant to the plaintiff’s retained physical capacity for work. It strikes me as being a significant capacity to undertake relatively demanding physical work. Furthermore, I find the opinion of Mr Simm more compelling than the opinion of Mr Jones. Mr Jones did not make the effort to try to distinguish one incident from the other and the injury caused in the individual incidents, whereas Mr Simm did so in what appears to me to be a careful, well considered manner.
76 I now turn to the consequences which I find arise from the impairment of the function of the plaintiff’s lower back consequent on the injury he suffered on 24 September 2008. The plaintiff’s evidence is that he has suffered the following consequences:
· He experiences fluctuating lower back pain and pins and needles down his left leg.
· He has been unable to return to work in the “potted and layered” area. He is now limited to 28 hours worked per week over four days doing what appears to be light work. It would appear that he is struggling with his work from time to time, as he described in his evidence summarised in paragraph 64 above.
· He was using a variety of strong painkilling medication. He now uses what he described as Panadol Arthritic, usually taking two per day, but up to four per day.
· He had treatment from Dr Wanda and physiotherapy, together with an injection given to him by Dr Mitchell when the condition of his lower back was less tolerable than it later became.
· He suffers interference with his sleep by a jabbing pain. He sometimes wakes once or twice a night in pain.
· He is unable to ride a motorcycle; engage in social and recreational activities with his younger son, his older children and his granddaughter; gather firewood by using a chainsaw and engage in the physical work required; use a push mower – he now uses a ride-on mower; go surf fishing – he is now limited to duty fishing; working on his hobby farm with his wife, and servicing the family cars.[37]
[37]The foregoing are referred to in the plaintiff's affidavits sworn 26 June 2012 and 2 March 2012, and in particular that PCB 8-10 and 17-18
77 The plaintiff's complaints of pain and disablement are supported by Mr Keith Carter, who swore an affidavit on 2 March 2012. He commenced work with the defendant six months after the plaintiff commenced work with the defendant. He recalls hearing complaints from the plaintiff about his lower back. He said that the plaintiff now does odd jobs here and there, doing things such as re-stocking the canteen with coffee, tea, sugar and stirrers, and cleaning the toilets, bringing in fresh gloves and hairnets for people in different sections in the defendant’s operations and sharpening knives. He has not observed the plaintiff doing any heavy work. He also said that there is heavy work to be done with the defendant, such as, lifting containers of potatoes.[38]
[38]PCB 21a-21b
78 The plaintiff’s wife, Grace Marie Hooper, swore an affidavit on 26 June 2012. She said that she collects the firewood, and not the plaintiff. She used to go surf fishing with the plaintiff, but episodes of fishing are now limited. A decision has been made to sell the hobby farm because she cannot do the work required on it given that she is working full time. She has observed him to have difficulties with his lower back, for example, lifting his granddaughter and giving her piggyback rides.[39]
[39]PCB 19-20
79 I accept the evidence of Mr Simm that the incident which occurred on 24 September 2008 resulted in the plaintiff suffering the more severe injury to his lower back when a comparison is made with what he suffered following the other incidents. I accept the plaintiff's evidence that up to 24 September 2008, he was reasonably physically fit and active, but with a back which was painful from time to time, but it does not appear to me that it was as disabling as it has become.
80 The interference with the plaintiff's working, social and recreational life is very significant. Almost every aspect of his life has been impaired through pain, loss of sleep, resort to medication, impairment of the capacity to work freely and fully, and an impairment in the interaction with his wife, children and granddaughter, and his capacity to engage in pleasurable activities, such as fishing and working on his hobby farm.
81 It seems to me that these matters, which I have just mentioned, meet the test enunciated in Petkovski and that the consequences which I find the plaintiff has suffered meet the statutory test of seriousness.
Conclusion
82 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising out of his employment with the defendant.
83 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
---
0