Horan v Victorian WorkCover Authority
[2023] VCC 191
•21 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-02858
| MARK NORMAN HORAN |
| v |
| VICTORIAN WORKCOVER AUTHORITY |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 8 August 2023 | |
DATE OF JUDGMENT: | 21 February 2023 | |
CASE MAY BE CITED AS: | Horan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 191 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the back – paragraph (a) of the definition of “serious injury” – pain and suffering consequences to plaintiff of impairment or loss – application of principle in Petkovski v Galletti – aggravation of pre-existing injury.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Sabo v George Weston Foods [2009] VSCA 242; Kelso v Tatiana Meat Co Pty Ltd (2007) 17 VR 592; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Paric v John Holland Constructions Pty Ltd (1984) 1 NSWLR 505
Judgment: Leave granted to the plaintiff to commence to recover damages for pain and suffering consequences.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Arnold Dallas McPherson |
| For the Defendant | Ms K M Manning | Wisewould Mahony |
HIS HONOUR:
Introduction
1Mark Horan seeks leave to commence a proceeding to recover damages for injuries he suffered arising out of or in the course of his employment with Elite Interior Solutions Pty Ltd (Elite). He does so under s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act). He relies upon paragraph (a) of the definition of “serious injury” in s325 of the Act, being a permanent serious impairment or loss of a body function. The body is function is that associated with the spine. Mr Horan seeks to establish his “serious injury” by relying on the pain and suffering consequences to him of his impairment or loss.
2Counsel for the parties agree the principle in Petkovski v Galletti[1] applies in a proceeding under the Act and to this application. It is well stated in the headnote:
“In an application for leave to bring proceedings under s 93 of the Transport Accident Act, where the case was one of aggravation of a pre-existing condition, the applicant must establish what the injury was caused by the accident. An analysis must be made of the extent of the impairment of a body function before and after the relevant injury, and the additional impairment must involve serious long term impairment of a body function.”
[1] [1994] 1 VR 436
3The principle in Petkovski’s case applies even though this is an application under a different piece of legislation. It also applies because Mr Horan’s troubles with his lower back predates his employment with Elite.
Circumstances
4Mr Horan is now 50. He is married to Michelle and they have two adult children.
5After finishing Year 10, he undertook and completed an apprenticeship in cabinetmaking. He then worked as a cabinet maker and shopfitter, first as an employee and then on his own behalf. He also worked as a production manager. In July 2014, Elite employed him.
6In the 1990s, Mr Horan experienced lower back pain, attributing it to his work as a cabinetmaker: “The work I did was arduous and awkward, and the low back pain came with the job”.[2]
[2] Affidavit of Mr Horan sworn on 9 March 2021 at paragraph [4]
7For years, Mr Horan has attended a medical clinic in South Morang, Lakes Boulevard Medical. His clinical records were admitted into evidence. It sets out entries starting on 11 July 2001 and ending on 21 July 2021. During cross-examination, Mr Horan was taken to his attendances before January 2015. They were:
(a) 4 November 2004 – this is the first attendance where his back is mentioned. In part, the entry reads: “sore back for 1 week. No history of trauma. O/E tender R lower back above iliac crest. No spinal tenderness. Lower limbs OK”. He was prescribed Nurofen and advised to undertake massage and to rest;
(b) 30 June 2007, there is a brief entry recording a request for CT scans of the lumbar spine. The results of these scans are unknown. It is interesting to note he was prescribed Panadeine Forte in June 2008 for apparently sinusitis;
(c) 8 February 2011, this is the next attendance where he complained about his lower back. He spoke of back pain for 20 years, becoming worse in the last 12 months. Specifically, it was bilateral lower back pain radiating into the buttocks, better since doing mainly office work and massage. There was a good range of back movements accompanied by pain. He was prescribed Panadeine Forte and Mobic and CT scans were requested. The radiologist’s conclusions were:
“Lower lumbar degenerative disc disease. Moderate left L5-S1 foraminal stenosis. No central canal stenosis.”
The body of report notes the left L5 exiting nerve root is mildly compressed.
(d) 8 March 2011: the entry records persistent back pain with no benefit from Mobic and the result of CT scans. Despite the scans revealing compression of the L5 nerve root, the practitioner notes there are no clinical signs. He is prescribed Panadeine Forte and the prescription of Mobic ceases;
(e) 9 August 2011: Mr Horan is seeking a medical clearance to join the fire brigade. He says he has had no back pain for six months. He has a full range of back movements and straight leg raising is unrestricted. The prescription of Panadeine Forte ends.
Pausing there. In about 2011, Mr Horan was treated for testicular cancer, which saw him unable to work for about a year.
(f) 14 February 2013: this is the next visit regarding his back. Earlier visits were concerned with his testicular cancer and the pressure from his employer about a return to work. He says he bent over to tie his shoes and felt immediate lower back pain. Although using Panadeine Forte in the past, he has not taken any. There is no referred pain. The practitioner found pain with forward flexion from 30 degrees, mobilising OK with some paraspinal tenderness and prescribed Panadeine Forte and Voltaren;
(g) 17 November 2013: pain reoccurs while attending a boot camp to gain fitness. The practitioner found tenderness at L5 level with paraspinal spasm and negative straight leg raising for both legs. He prescribed Panadeine Forte;
(h) 29 December 2013: he complained of severe back pain which was worsened by walking or resting. There was no numbness or tingling in the legs. An examination did not reveal paraspinal tenderness but flexion, extension and lateral flexion were restricted – 90, 10 and 30 degrees respectively. Straight leg raising was not. He was prescribed Panadeine Forte and requested lumbar x-rays. They revealed mild degenerative changes;
(i) 10 June 2014: the doctor records: “Having a lot of back pain issues, Panadeine Forte seems to help, taking it only three or four times a week, is a cabinet maker, wears a brace at work”. He is attending an osteopath and physiotherapist for treatment and was prescribed Panadeine Forte;
(j) 17 June 2014: there are two attendances that day. Both involved the development of a care plan with visits to an osteopath and physiotherapist. In one, the practitioner records – “Back fine bit better. Taking Panadeine Forte most nights. No numbness or tingling in legs … Pain continued to lower back”;
(k) 1 July 2014: his main complaint was sinusitis. However, his practitioner recorded: “Recurrent back pain. Has been having intermittent back pain for years. Seeing physio on Thursday but needing stronger analgesia until then. Pain typical of usual exacerbations.” He is again prescribed Panadeine Forte. This attendance was shortly before he started with Elite;
(l) 14 September 2014: Mr Horan sought advice about travel. The practitioner records – “Back is sore. Playing up. Going overseas. Would like to have medication before he departs.” He was prescribed Panadeine Forte.
8Although Mr Horan attended the clinic on four occasions between 14 September 2014 and 14 January 2015, none concerned his lower back.
9Between 4 November 2004 and 14 January 2015, Mr Horan attended the clinic on twelve occasions regarding his lower back. Two of those occasions were not for treatment: 9 August 2011 (clearance for fire brigade) and 14 September 2014 (prescription for overseas travel). Excluding those two attendances, there were two attendances in 2011, three in 2013 and three in 2014.
Incident
10Mr Horan described the circumstances of the incident:[3]
“On my return to work on approximately 13 January 2015 – I think my second day back after holidays – I was required to assist others to unload bifold doors from a truck and then carry the doors to pallets which were about 20 or 30 metres away. This was heavy work. After approximately one hour of unloading the doors, I felt pain in my back and like it had given way. I had to cease work as soon as this happened. I couldn’t walk very much at all. My back pain was severe. I hadn’t experienced anything like this pain before.”
[3] Affidavit sworn on 9 March 2021 at paragraph [7]
11The timing and circumstances of this incident were not explored in Mr Horan’s oral evidence. It appears this incident occurred on 14 January 2015.
12The next day, Mr Horan saw a general practitioner. More CT scans were conducted with the radiologist concluding:[4]
“Multilevel disc degenerative disease, worst at L5/S1 with extension of the osteophyte complex extending into the left exit foramen resulting in moderate/severe narrowing and impingement of the existing left L5 nerve root.”
[4] Report dated 15 January 2015
13After attending a chiropractor, physiotherapist and undertaking hydrotherapy, MRI scans were conducted with the radiologist concluding:[5]
“Mild disc and degenerative disease in the lumbar spine, most marked at L5/S1, where there is mild narrowing of the left exit foramen at this level.”
[5] Report dated 26 August 2015
14Continuing with the clinical records:
(m) 14 January 2015: there are two entries for that day, one by Dr Ganasan, the other by a Ms Arifin. The later appears administrative in nature. Dr Ganasan noted: “Was working today after a long break and had worsening left-sided back pain similar to his OA, pain the lumbar region. Wears brace while at work. Tingling and numbness of the left foot. No fall. No trauma..”;
(n) there are attendances on 15, 21 and 30 January 2015;
(o) 10 February 2015: Dr Ganasan noted “is improving well”;
(p) 23 February 2015: Regarding the back, Dr Ganasan noted “pain not “improving”. Two days later, he saw Dr Ganasan for a “work-related driving assessment”. He prepared a “full medical report” and notes “back pain improving well”. On 3 March 2015, he attended about a lump on his lower back;
(q) 19 March 2015: Dr Ganasan recorded Mr Horan “feeling much better at the moment. 80 to 90 per cent better”, able to bend down and takes “Maxigesic” for pain. He had a new job with Qantas and wanted to return to his pre-injury duties. However, it appears the doctor persuaded him to return to work gradually. The physical examination appeared normal except for minimal paraspinal spasm. Dr Ganasan gave a certificate of capacity and prescribed Endone;
(r) 9 April 2015: Dr Ganasan recorded he has returned to work with some minor pain and is undergoing physiotherapy and chiropractic treatments. The primary purpose of the attendance was an injury to his right foot;
(s) 17 June 2015: Dr Ganasan noted a complaint of persistent back pain, the less physical nature of his work with Qantas, seeing a physiotherapist, no real improvement with worsening bilateral hip pain;
(t) 8 August 2015: Dr Ganasan recorded: “back pain worsened since 5.30am today, has been good for several months now”. On examination, he noted left L5 joint tenderness with a pain score of 9 out of 10. He prescribed Endone, Panadeine Forte and Voltaren;
(u) there were attendances on 25 and 29 August 2015 regarding the lower back. MRI scans were requested. The next mention of his lower back occurred on 20 April 2016. There were several attendances between August 2015 and February 2016 and then to April, but none concerned his lower back;
(v) 20 February 2016: Dr Ganasan recorded: “Back not really playing up at the moment”;
(w) 25 May 2016: Dr Ganasan recorded: “Was lifting cement blocks at work, 20 kgs each. Worsening pain of the back and also closing the rabbit hutch. No sciatica. Unable to sleep at night.” Mr Horan does not believe he lifted the cement blocks on his own. He may have lifted through fear of losing his job;
(x) 1 October 2016: the doctor records: “Has occasional back pain.” There is a mention of his back on 26 October 2016, 26 November, 3 December 2016, 3 January 2017, 27 January and, indirectly, 29 January 2017. It is noted at this time Mr Horan was most concerned about the psychological health of one of his children. The next reference to the back occurs on 24 September 2017;
(y) 6 October 2017: Mr Horan and his son pushed, not lifted, a toilet, aggravating his back pain and causing a visit to his doctor;
(z) 26 March 2018: the doctor recorded: “Has come in advising he hurt his back this morning when he tried to put on his socks.” Although this type of event occurred before the incident, Mr Horan said it did not cause symptoms to the same degree as it did after the incident;
(aa) 10 May 2018: Dr Ganasan recorded: “… Lower back pain well managed. No sciatica, not needing pain killers at the moment.” The visit concerned pain in the left trochanteric region;
(bb) 4 November 2018: in the context of a thorough examination, Dr Ganasan noted the presence of back pain but the absence of pain in eleven other areas of his body. Much the same entry is made on 7 March 2019. The back is noted as presently good on 6 April 2019. It is mentioned on 16 and 26 June 2019 in the context of a report Dr Ganasan was writing to Victoria Police;
(cc) 7 July 2019: another practitioner noted there was a flare up of pain two days earlier when he awoke with lumbar back pain. The doctor noted bilateral paravertebral tenderness and limited range of lumbar movement. He prescribed Valium and Panadeine Forte. Two days later, the pain had improved “a lot”. On 22 September 2019, Mr Horan obtained a prescription for Panadeine Forte because he was travelling to Bali. I infer it was for the same reason as before, namely, as a precaution against back pain. On 28 December 2019, he complained of a mid-back pain;
(dd) 21 March 2020: the back is described as “minimal pain” and L4 tenderness and was prescribed Panadeine Forte;
(ee) 23 May 2020: Dr Ganasan notes: “Ongoing back pain. Did not have back pain when was actively planning to join the police force … Does lift heavy weights … Taking Panadeine Forte. Has not seen the osteo or physio. No tingling or numbness of the legs … no joint pain, no chest pain.” At the time of this entry, he was working for a party hire business. His work had a “manual component” and he was comfortable with that component. His pain score was 5 out of 10. There was paraspinal spasm. Dr Ganasan prescribed OxyNorm and Panadeine Forte;
(ff) 24 June 2020: Dr Ganasan noted: “on going lower back pain, still troubling him, seen the physio, not really getting better. AF(?) – work does a lot of repetitive lifting, worsens his back, once he has a flare up lasts for 3 weeks or so.” On 28 August 2020, there was a flare up. Since Panadeine Forte was “not much of a help”, he was prescribed OxyNorm. There are visits on 6, 9,14, 16 and 18 September and 17 November concerning his back. On 16 September, he was prescribed Targin;
(gg) 28 January 2021: Dr Ganasan noted his back pain was better. He was enjoying his new job and was more relaxed but on 1 February 2021 noted “still driving but back tight, no sciatica, putting up with pain, not on pain killers, unable to sleep at night …”. On 14 March 2021, he was coping well with the main focus being his left shoulder. On 11 April 2021, he was prescribed Allegron, seemingly for pain relief. On 27 April 2021, he attended following a flare up and was prescribed Targin. On 6 May 2021, his back was much better with no flare ups. On 7 May 2021, there is a flare up of sciatica while tying his shoe laces. On 10 June 2021, Dr Ganasan noted on and off mild flares with no sciatica. He was now attending Bundoora Physiotherapy. There were monthly attendances where Dr Ganasan provided a “worker’s compensation certificate”. On 26 August 2021, he noted “back pain better, self-managing it, did not go to the physio after the lockdown… not in pain”. The state of his back was noted on 14 September, 1 and 7 October 2021, 27 February, 28 April and 7 July 2022.
15In the doctor’s notes, there are no mentions of flare-ups between March 2018 and July 2019. There are significant periods where he does not require Panadeine Forte.
16In October 2017, Mr Horan repaired a leaking toilet in the ensuite to his bedroom. This involved dragging the toilet bowl about a metre. Doing this increased the level of his pain to severe. Thereafter:[6]
“It’s always the same thing…painkillers, rest, not doing much at all until it gradually gets better and then back to normal things.”
[6] Transcript at p 63
17Mr Horan described these increases in pain as “flare-ups”.
18In March 2018, there was another flare-up when he tried to put on his socks. A further flare-up in August 2020 saw him cease working in property maintenance.
19In 2018, Mr Horan applied to join Victoria Police. He says his back symptoms were then minimal. Given the state of his back and usual duties of operational members of the police force, it seems a strange decision. He explained:[7]
“I guess trying to think of a different career path or something that I thought may be easier for me to do and easier on my back.”
[7] Transcript at p 63
20There were stages to the entry process. Initially, it was mainly theory. Mr Horan trained for the physical aspect of the process by swimming, walking and running on a treadmill. From the time of his application until its rejection at least 12 months passed. During that period, he passed the written aspect of the entrance process. There was a fitness test and a medical examination. They occurred on different days. The fitness test involved swimming 50 metres, doing five push-ups, a grip test and a “shuttle run”. The shuttle run involved running 10 metres and then return while weaving between cones.
21Mr Horan’s application was unsuccessful. He believes on medical, not psychological, grounds even though he was not told why. In September 2019, he travelled to Bali.
22To support this application, on 4 July 2019, Dr Ganasan, wrote to the Victoria Police Medical Advisory Unit. In part, the letter read:[8]
“Thank you for seeing Mark Horan for an opinion and management. I took over his clinical Care in November 2013. I have traced his previous surgeries clinical notes and his lumbar back pain dates till 2001.
He has had multiple imaging studies done for it. The latest MRI spine done for it. The latest MRI spine done as attached – did not show any worsening of his condition.
He has been stable for the past 4 years. He regularly sees an osteopath for it. He no longer has restriction of activity with it.
His prognosis of the condition is good. His ongoing treatment would be to continue core exercises and ongoing osteopathy under a Chronic Disease Management Program under Medicare. I do not foresee any major issues/implications with his new job application.”
[8] Exhibit 2
23With the start of the pandemic, Mr Horan received JobKeeper payments. He did not attend a workplace and stayed at home.
24In October 2020, he obtained his current position as a project manager with a facility management business called MWT. This is a full-time position. However, his duties are not those I would usually associate with a project manager. I would describe them as handyman duties: for example fixing door handles, adjusting door closers or changing a drawer runner. As befits the role, and his consciousness of the state of back, his physical activities are limited:[9]
Q: “Is there a lot of squatting in this job, kneeling, bending?---
A:There can be. I tend not to want to squat because that’s not very good but I can bend, keep my back straight, but I can’t really squat, curled over.”
[9] Transcript at p 66
25His job requires driving, which he copes with by stopping and walking and stretching.
26Over the years, Mr Horan paid for various treatments: osteopathy, chiropractic, acupuncture, traditional Chinese medicine and hydrotherapy.
27During 2021, Mr Horan injured his left shoulder. In July 2021, an arthroscopy was performed. With physiotherapy and exercises, largely, he is not now troubled by the shoulder.
Medical and other reports
Dr Ganasan
28Apart from his July 2019 letter to the Victoria Police medical advisory unit, Dr Ganasan has written two other reports.[10] With the first report, he noted Mr Horan attended him on 17 November 2013 complaining of worsening lower back pain and shooting pain down a leg. The latter worsened with bending or squatting at work. Despite taking Panadeine Forte and treatment by an osteopath and physiotherapist, the pain did not “get better”.
[10] Dated 9 February 2015 and 28 April 2022
29In that report, his examination made only two anomalous findings: tenderness over the L5-S1 region; and left-sided straight leg raising positive at 60 degrees. CT scans showed: multi-level disc degenerative changes, worst at L5-S1 with extension of disc osteophyte complex extending into the left exit foramen resulting in moderate/severe narrowing and impingement of the exiting left L5 nerve. He referred Mr Horan to a chiropractor with considerable benefit.
30His second report covers all of Mr Horan’s medical conditions known to Dr Ganasan. It is difficult to discern when Dr Ganasan is speaking of the past or the present. As to the present, I believe him to say Mr Horan manages his pain through his chiropractor, Liz Baker. His pain is under control with minimal exacerbations. Mr Horan does experience flare-ups of pain. Some of the flare-ups are trivial, others are not. Those others are caused by lifting more than 5 kilograms. These flare-ups are managed by Mr Horan undertaking an exercise programme which he carries out at home.
31Dr Ganasan noted five flare-ups in 2021 despite Mr Horan undertaking minimal manual handling due the pandemic. He also noted two flare-ups in 2022. The effects of non-trivial flare-ups last from five days to three weeks with bilateral sciatica and straight leg raising restricted to 45 degrees bilaterally
32Presumably on 28 April 2022, Dr Ganasan found no spinous process tenderness and minimal paraspinal spasm over L5-S1. He recorded straight leg raising as negative bilaterally. I would interpret that to mean there was no restriction for either leg.
33Nevertheless, he considered Mr Horan was unsuitable for his pre-injury duties for the rest of his working life because the flare-ups are too frequent.
34As for future treatment, Dr Ganasan said:[11]
“Due to medical advancements in the field, he would be a strong candidate for RF guided ablation of the L5/S1 and rhizotomy. Other conservative measures would include a CT guided Lumbar steroid injection or epidural injection for pain management. He would need lifelong hydrotherapy and physio/chiropractic sessions to manage flare ups.”
[11] Report dated 28 April 2022
35Radiofrequency ablation seeks to “burn” the nerve or nerves which cause the pain. It does not involve surgery.
36Dr Ganasan noted Mr Horan’s current medicines as Palexia, Panadeine Forte and Zoloft. He has been prescribed Zoloft since 2005 for his anxiety and depression.
Ms Kennedy
37Rochelle Kennedy is a physiotherapist who treated Mr Horan. Entries from her clinical records were admitted into evidence. They relate to 16 attendances between 29 May 2020 and 3 May 2021.
3829 May 2020 appears to be her first attendance upon him. With liberal use of abbreviations, she records a history. Interestingly, she notes an eight-year history of lower back pain, gradual onset of pain and no mention of the incident. The pain was central with the left side greater than the right. Pain is referred into both hips. There was no pins and needles or numbness. He has intermittent shooting pain. The pain is aggravated by bending, putting on shoes and socks, sitting for more than 30 minutes and prolonged standing.
39The last entry is on 3 May 2021, where she noted:
“Hurt back picking up socks from the floor a few weeks ago. Intense pain for a number of days – had two days off work. Gradually settling since. Wants to really work on strength over next few weeks – sick of having incidents like this.”
40She planned to see him again in a week’s time but apparently that did not happen.
41Some of the entries are surprising. On 3 March 2021, she noted: “Has been working overtime – shop fitting – manual labor+... .” However, on 8 February 2021, she notes: “project managing – mostly office and driving … .”
42Although her entries are somewhat detailed, there is a great deal I cannot understand, especially where it comes to treatment.
Mr White
43Mr Roger White is a consultant surgeon. On 19 March 2015, he examined Mr Horan at the request of an authorised agent.[12] Among the documents available to him, there were clinical notes, presumably from the Dr Ganesan’s clinic.
[12] Reports dated 19 March 2015 and 27 March 2015
44Mr White noted Mr Horan saying his symptoms had improved 70 per cent since ceasing work. Mr Horan could manage the activities of daily living, undertook a self-management program twice a day, drives his automatic motor vehicle and manages chores about the house and minor gardening.
45Mr White’s examination of Mr Horan found little that was abnormal. For example the range of his back movements was “good”. Nevertheless, he considered Mr Horan’s injury as a significant aggravation of the symptoms of his pre-existing condition.
46Mr Horan should not return to his pre-injury duties then but might be able to do over the next six to eight weeks. He recommended an exercise program supervised by a physiotherapist during the next six to eight weeks; a hydrotherapy programme; MRI scans of his lumbar spine; and changing Panadeine Forte for Paracetamol.
47Subsequently, Mr White was given a copy of circumstance report and a letter from Dr Ganasan to a neurosurgeon. I will quote from two of the paragraphs in Mr White’s second report:[13]
“My further clinical opinion in respect of the additional information remains that the worker has constitutional degenerative change, most marked at the L5-S1 level with radicular effects in his left leg, certainly present for at least five years, from which he has had pain, managed variously over the years as documented in that report.”
[13] Report dated 27 March 2015
48And:
“It is quite plausible that whatever the precise incident, and lifting the MDF as he documents is quite possibly the cause, he has experienced an acute exacerbation or an aggravation of discomfort.”
Mr Siu
49Mr Kevin Siu is a neurosurgeon. At the request of the respondent’s solicitors, he re-examined Mr Horan on 19 May 2021 and 18 May 2022.[14]
[14] Reports dated 20 May 2021 and 23 May 2022
50It is interesting to note, for both examinations, Mr Siu was given the attendance notes of Lakes Boulevard Medical. During the first examination, Mr Siu was conscious of the results of the 2007 CT scan. However, he found Mr Horan was an unhelpful historian. He could not remember having that CT scan, any incident in 2007 leading to the scan or any treatment.
51At his first examination, Mr Siu found no evidence of nerve root compression despite the findings of the MRI scans. At his second examination, the neurological examination was normal except for restrictions in flexion, extension or lateral flexion.
52Since his first examination, Mr Siu considered there was some improvement in Mr Horan’s condition because he could do the physical activities of inspection of properties and basic maintenance.
53Mr Horan told him of persistent back pain. He said his level of pain was then 6 out of 10, where, presumably, 10 is the worst pain Mr Horan could imagine. This level must be seen against a background of Mr Horan taking Palexia twice daily and Panadeine Forte if he cannot go to sleep readily. During the day, the level may rise, requiring further analgesics in Panadol and Nurofen. He suffers flare-ups every two or three few months. When accompanied by spasm, he takes time off work. With some flare-ups, the pain level reaches 10 out of 10.
54To Mr Siu, at the second examination, the results of the neurological examination were normal, as they were in the first examination. However, there were restrictions of some of the movements of the spine. It appears Mr Siu did not consider those movements in his first examination.
55The diagnosis remained lumbar spondylosis. His persistent symptoms were due to the aggravation of the pre-existing condition. Mr Siu expressed disappointment over Mr Horan giving up physiotherapy and “other exercise”.
56Finally, Mr Horan could not return to his pre-injury duties as a cabinetmaker.
57As to treatment, Mr Siu observed:[15]
“He is stoic to the extent that he does not wish to suffer under the stigma of a worker’s compensation claim. However, I think he should be sent to see pain management specialist and undertake a pain management course.”
[15] Report dated 20 May 2021 at p 5
Mr Elder
58Mr David Elder consults in occupational and environmental medicine. On 24 November 2020, he examined Mr Horan at the request of an authorised agent for the purpose of an impairment assessment.[16]
[16] Report dated 24 November 2020
59Dr Elder was provided with clinical notes from Lakes Boulevard Medical. Naturally, for the purposes of the impairment assessment, he was interested in any pre-existing problems of the spine, and noted:[17]
“The worker confirmed that he had previously had low back symptomatology but at the time of the injury he had not been receiving any treatment nor could I find any reference of recent medical treatment at that time in the notes that you provided.”
[17] At p 1
60Additionally, Dr Elder possessed the reports of Mr White dated 19 and 27 March 2015 and a circumstance report. Ultimately, Dr Elder did not believe there was a pre-existing condition requiring apportionment.
61The results of his examination were normal except for decreased range of movement in the lumbar spine associated with left side muscle spasm.
62Dr Elder diagnosed mechanical low back pain without radiculopathy. He had noted an asymmetric decreased range of motion in the lumbar spine associated with left sided muscular spasm. The spine had a normal contour. There was no neurological signs or asymmetry in limb measurements.
63Assuming an accepted lumbo-sacral injury, to Dr Elder, the best description in the Tables was signs of injury without clinical evidence of radiculopathy, which translated into a 5 per cent whole person impairment.
Mr Wilde
64Peter Wilde is an orthopaedic surgeon. On 23 February and 30 November 2021, he examined Mr Horan at his solicitors’ request.[18] Since the examinations were only separated by nine months, Mr Wilde’s reports say much the same things.
[18] Reports dated 2 March 2021 and 9 December 2021
65In his first examination, Dr Wilde found Mr Horan’s spinal movements were restricted in all directions by 50 per cent. In his second examination, Dr Wilde found the lumbar movements were restricted, principally due to pain and gave the extent in terms of degrees: flexion (30 degrees), extension (10 degrees), lateral bend (20 degrees in both directions) and rotation (15 degrees in both directions). He observed muscle spasms. Other than those, his other findings were normal.
66By way of my comment, the restrictions found in the second examination at least equal those of the first. The movements of Mr Horan’s lumbar spine are severely restricted.
67After the second examination, Dr Wilde’s diagnosis was aggravation of lumbosacral spondylosis and an acute, small, left lumbosacral disc protrusion. If there was left S1 radiculopathy, it had resolved. The prolapse had partly healed but still left persistent discogenic pain with somatic referral into the left buttock.
68Mr Horan could not return to his pre-injury duties for his back could not cope with the lifting, bending, twisting and working in awkward positions.
69For recovery, Dr Wilde’s prognosis was poor because Mr Horan’s pain had not settled in six years and is unlikely to change greatly in the foreseeable future.
70Mr Wilde recommended continued home exercises, chiropractic treatment and Mr Horan remaining in contact with his supportive general practitioner. Mr Horan was concerned about deterioration and asked about a second surgical opinion. Mr Wilde supported such a referral but doubted surgery would be recommended based on his clinical examination and the 2015 imaging.
71The prognosis was guarded in that he did not expect any improvement.
72In both reports, Mr Wilde examined the state of Mr Horan’s back before and the incident in January 2015, concluding:[19]
“On a background of intermittent back pain not requiring time off work or specific treatment, Mr Horan injured his lumbar spine at work on 15 January 2015. This occurred … at Elite Interior Solutions Pty Ltd as a carpenter/shopfitter. Despite attempts to return to work and good quality conservative treatment his pain has persisted. Indeed, he told me today that the pain remains the same as shortly after the injury in 2015. Despite the pain he soldiers on and has been able to obtain alternative employment currently working at … as a project manager. This is an office job and spares his back.”
[19] Report dated 9 December 2021 at p 5
Dr Weekes
73Dr Gavin Weekes specialises in pain medicine and anaesthetics. On 2 September 2021, he examined Mr Horan at the request of his solicitors.[20]
[20] Report dated 2 September 2021
74Mr Horan told Dr Weekes of the condition of his left knee and his testicular cancer. Relevantly, he told Dr Weekes of the beginning of his lower back pain in the 1990s and attributed it to his work as a cabinetmaker. Dr Weekes understood his work was of a “laborious nature”, involved working in awkward positions and wearing a back brace since 2010. Dr Weekes understood the 2015 incident caused his lower back pain to become more constant and severe with an adverse effect on his quality of life, ability to function and employment.
75Since the onset of the pandemic, Mr Horan’s current employment is entirely spent in an office arranging maintenance for childcare centres. He can walk, sit and stand comfortably for 30 minutes and drive comfortably for 60 minutes. His lower back pain increases with repetitive bending, lifting or twisting. His sleep is interrupted. He has stopped golfing and off-road motor cycling. It has affected his hobby of car maintenance through the need to bend forwards. It interferes with showering, putting on and taking off his shoes and socks, cleaning, cooking and gardening.
76Mr Horan told Dr Weekes of chronic lower back pain. The pain can radiate into his left leg towards the knee. Associated with this radiating pain is intermittent paraesthesia and numbness affecting his toes of the left foot. The back pain is worse than the leg. The former is generally a dull ache but can become a sharp pain. The level of pain out of 10 varies between 4 and 10.
77Dr Weekes was not supplied with reports of investigations. He gleaned some idea of their results from at least one of the medical reports supplied from which he knew of 2007 CT scan revealing small left-sided disc prolapse at L5-S1.
78On examination, Dr Weekes found no obvious neurological signs. He did find flexion and extension of the lumbar spine were severely restricted, extension more than flexion with it increasing the level of pain more than flexion. There was pain in the left sacroiliac joint and Mr Horan indicated the left gluteal region as the source of most of his pain.
79Dr Weekes diagnosed an aggravation of lumbosacral spondylosis. The condition was stable. It prevented Mr Horan’s return to his pre-injury duties. He expected Mr Horan’s restrictions in social, domestic and recreational activities would continue into the foreseeable future.
80There are various treatment options including multi-disciplinary cognitive based pain management. He would not comment on the surgical or interventional approach until he had seen the radiological reports. Nevertheless, he expected some degree of pain and disability for foreseeable future given the severity and longevity of Mr Horan’s symptoms.
Dr Bones
81Dr Catherine Bones is a consultant occupational physician. On 8 December 2020, she examined Mr Horan at the request of an authorised agent.[21]
[21] Report dated 17 December 2020
82Mr Horan told Dr Bones his low back pain had reduced and the swelling in his lower back had reduced with ice treatment. Although his back pain was referred into both hips, he was not suffering leg pain. The pins and needles in his left foot had gone. There was some soreness in bed at night.
83Dr Bones possessed the report of x-rays of the spine taken on 4 September 2020. For the lumbosacral spine, the radiologist said:
“Preserved normal lumbar lordosis is noted. Minimal degenerative change of the L5/S1 level. No evidence of significant scoliosis is seen. No pelvic tilt is noted.”
84Dr Bones found some of the movements of Mr Horan’s lumbar spine restricted: forward flexion limited to 30 degrees while lateral flexion on either side was minimal, commenting “the lumbar spine appeared very stiff in this movement”.
85To Dr Bones, the incident on 15 January 2015 significantly aggravated Mr Horan’s pre-existing degenerative lumbar spine. Dr Bones thought the pre-existing condition was asymptomatic. Mr Horan could not return to his pre-injury duties for the foreseeable future.
86She recommended restrictions in what Mr Horan could do physically: avoid sustained sitting; avoid repetitive or sustained bending, squatting or lifting more than 5 kilograms; avoid pulling or pushing more than 10 kilograms; and to exercise caution if climbing ladders or working at height.
87As to the future, Dr Bones recommended a supervised swimming or gymnasium programme as a transition to Mr Horan’s management of himself. Although noting the chiropractic treatment had benefited Mr Horan, she did not consider such treatment was a long-term solution.
88She believed the aggravation had improved but not resolved. His condition had improved to the extent he had returned to work but not his pre-injury duties or pre-injury hours. Returning to those duties risked significant aggravation of his condition.
Legal considerations
89Turning to paragraph (a) of the definition of “serious injury”, the word “serious” is explained in two further paragraphs of s325(2). First, it is satisfied by reference to the consequences to Mr Horan of any impairment or loss of a body function with respect to pain and suffering when judged by comparison with other cases in the range of possible impairment or loss of body function. Second, an impairment or loss of a body function is not serious unless the pain and suffering consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function fairly described as being more than significant or marked, and being at least very considerable.
90The adverb “very” qualifies the noun “considerable”. The following passage from the joint judgment in Sabo v George Weston Foods[22] is important:
“In considering whether Mr Sabo’s impairment is ‘at least very considerable’ weight must be given to the adverb ‘very’. As Callaway JA said in TAC v Dennis:
‘Many [impairments] are considerable, in the sense that they are important or substantial, without being very considerable’.”
[22] [2009] VSCA 242 at paragraph [73]
91Since the experience of pain is an important aspect of this case, the observation of Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd[23] is important:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[23] (2007) 17 VR 592 at paragraph [199]
92An earlier paragraph in the joint judgment dealt with Mr Sabo’s return to work:[24]
“The fact that Mr Sabo is able to work full-time driving a forklift, does not preclude him from showing that the pain and suffering consequences of his impairment are serious. Such an approach would be a disincentive to workers attempting to return to work on lighter duties and would be inconsistent with s 3(b) of the Act, which provides that one of the Act’s objects is to provide ‘for the effective occupational rehabilitation of injured workers and their early return to work.’”
[24] At paragraph [71]
93Under the heading of “The disabling effect of pain”, Maxwell P summarised the authorities on this point in Haden Engineering Pty Ltd v McKinnon:[25]
“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 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 the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].”
[25] [2010] VSCA 69 at paragraph [15]
94Counsel for the parties agree the ratio of Petkovski v Galletti[26] applies in a proceeding under the Act. I have already quoted from the headnote.
[26] Op cit
Discussion
Credit
95The defendant did not criticise Mr Horan’s truthfulness but it does criticise his reliability as a witness. It points to the histories given by him to various practitioners: Dr White – there was no significant back problem in the past; Dr Bones – the same; Dr Siu – he could not recall previous back problem and could not recall 2007 CT scan; and Dr Wilde – he reported minor back injuries in 2011 and 2013 which responded quickly to physiotherapy.
96I agree Mr Horan’s evidence needs scrutiny from the perspective of its accuracy.
Injury
97Mr Horan must prove he suffered an injury arising out of or in the course of his employment with Elite. He says the injury is the aggravation of a pre-existing injury, being lumbosacral spondylosis.
98Each of Dr Weekes, Dr Bones, Mr Wilde and Mr Siu diagnosed at least an aggravation of the pre-existing lumbosacral spondylosis. Dr Wilde added the development of an acute, small left lumbosacral disc protrusion. The diagnosis of Dr Elder was more general, being mechanical low back pain without radiculopathy. I am satisfied Mr Horan suffered an injury arising out of or in the course of his employment with Elite.
99The path of this aggravation of a pre-existing injury does not follow a straight line of deterioration. It fluctuates. The medical practitioners understand this. To laypersons, it may appear puzzling.
100The evidence, including the medical evidence, establish the effects of the aggravation continue for the foreseeable future. Accordingly, the injury is permanent.
Is the injury “serious”?
101To answer this question, Petkovski’s case requires a comparison of the state of his back immediately before the incident and its state following and into the future. There was a good deal of cross-examination of Mr Horan about entries in the notes of Dr Ganasan’s clinic. This is a useful up to a point. If those notes were examined by medical practitioners and expressed a relevant opinion, then that would be more helpful unless the factual assumptions of those practitioners is significantly incorrect.
102Dr Elder was provided with clinical notes of Lakes Boulevard Medical. For the purposes of an impairment assessment, he was interested in any pre-existing problems of the spine and noted:[27]
“The worker confirmed that he previously had low back symptomatology but at the time of this injury he had not been receiving any treatment nor could I find any reference of recent medical treatment at that time in the notes that you provided.”
[27] At p 1
103Dr Elder did not believe the pre-existing condition required apportionment.
104To Dr Bones, the incident on 15 January 2015 significantly aggravated Mr Horan’s pre-existing degenerative lumbar spine. She assumed his pre-existing condition was asymptomatic at the time of the incident.
105In a passage I have already quoted, Mr Wilde expressed a somewhat similar view:
“On a background of intermittent back pain not requiring time off work or specific treatment, Mr Horan injured his lumbar spine at work on 15 January 2015. This occurred at Elite … as a carpenter/shopfitter. Despite attempts to return to work and good quality conservative treatment his pain has persisted. Indeed, he told me today that the pain remains the same as shortly after the injury in 2015. Despite the pain he soldiers on and has been able to obtain alternative employment currently working at … as a project manager. This is an office job and spares his back.”
106Earlier, I summarised Mr Horan’s attendances between 4 November 2004 and 14 January 2015, they provide a “fair climate” for the opinions of the above practitioners.[28] Although Mr Horan’s back was not asymptomatic prior to the incident, its state would not undermine the opinion of Dr Bones.
[28] Paric v John Holland Constructions Pty Ltd (1984) 1 NSWLR 505 at 509
Consequences
107Petkovski’s case requires an examination of the impairment of Mr Horan’s lower back before and after the incident. Under the Act, the extent of an impairment is seen in the context of its consequences.
Pain
108The experience of pain is subjective. Assuming the person is creditable (which Mr Horan is), one must rely on the individual’s evidence about the pain he or she suffers. As far as I am aware, there are no reliable objective tests about the level of a person’s pain. In this case, various practitioners used the scale, zero to ten. This is purely subjective. There is, at least, one comprehensive subjective test, MacGill Pain Questionnaire, but I have never seen it used in these cases.
109The state of his lower back was an issue for Mr Horan as far back as the early 1990s. As the defendant demonstrated, and as I have set out, there were attendances upon his general practitioner complaining about it.
110On 9 March 2021, Mr Horan said:[29]
“Currently, I have constant low back pain which is made worse by activities such as bending, lifting or twisting. Occasionally the pain goes into my left thigh. Before the accident I would describe my low back pain as nagging and it was on the surface. Now, the pain is severe and it seems to be deep inside my lower back. …”
[29] Affidavit sworn 9 March 2021 at paragraph [12]
111In explaining what he told Dr Bones about his earlier back pain, he said:[30]
Q: “What do you recall telling her?---
A:That the back pain – the most recent back pain I had suffered was a lot more to anything I had had before. So, to me, anything in – in the past didn’t seem significant to what had occurred.”
[30] Transcript at p 25
112Mr Horan says his severe pain is not constant, but his minor pain is.[31] “Minor”, to him, describes the pain which is not severe. There are times when he does not take medicines. There are extended periods when he does not visit his doctor.[32] The pain is constant in some form.[33] He has occasional flare-ups but not one for a while.[34] At present, the pain level is 5 out of 10. This is the usual level. A flare up causes a 10. His back has caused him to take “minor” time off work[35] on a “couple of occasions”.[36]
[31]Transcript at p38
[32]Transcript at p 38
[33]Transcript at p 60
[34]Transcript at p 60
[35]Transcript at p 60
[36]Transcript at p 61
113He describes:
“… severe pain which makes it hard for me to walk, hard for me to move, get around and that is generally when I take a lot of painkillers for maybe one, to sometimes two weeks just to get on top of it and then usually takes up to two weeks to subside and get back to a manageable pain that I pretty much manage every day.”[37]
[37]Transcript at p 61
114He did not experience “severe pain” before the incident.[38]
[38]Transcript at p 61
115After the incident, Mr Horan did attend his general practitioner, especially relating to flare-ups of pain. They are short term and respond to treatment. Between March 2018 and July 2019, there were no flare-ups noted in the clinical records. In this period, Mr Horan sought employment with Victoria Police. To improve his fitness, he swam and ran on his treadmill at home. In that period, there are only two prescriptions for Panadeine Forte.
116As an exercise in self-assessment, Mr Horan’s attempt to enter the police force was naïve. Neither he nor Dr Ganasan display any real appreciation of what is involved in being an operational member of the police force. The interaction with members of the public involves much greater physical capacity than Mr Horan possesses. The application was doomed to fail.
117There are no recorded flare-ups following his trips to Bali and Thailand. The defendant relies on entry of Dr Singh on 18 June 2020. Among other things, noted pain score 1 to 2 out of 10 and “currently sciatica is much better”.[39]
[39]Defendant’s Court Book 106
Physical restrictions
118In his examinations, Dr Wilde found the movements of Mr Horan’s lower back were greatly restricted in all directions. It is little wonder his sporting and other activities are limited following the incident.
119Sitting for more than 30 to 60 minutes aggravates Mr Horan’s back pain. Nevertheless, he was able to fly to Bali and Thailand, presumably by standing up and walking about the cabin. When aggravated by sitting, the aggravation is not sufficiently great for him to attend a general practitioner.
120The pain interrupts his sleep, leaving him fatigued. He needs to catch up by taking naps on the weekends. Feeling fatigued “makes it hard to relax and complete the day in a normal manner”.[40]
[40] Affidavit sworn 24 February 2022 at paragraph [15]
121With commendable understatement in each of his affidavits, Mr Horan mentions the interference caused to his sexual relations, the effect upon him and the perceived effect upon his wife. This is a source of distress for him.
122His pain restricts his social life with friends. He is embarrassed by the effect of his pain on him and in their presence. He and his wife do go out to dinner every week or two.
Golfing, trail bike riding and car maintenance
123Before the incident, Mr Horan enjoyed playing social or non-competitive golf up to 20 times a year. He was not a member of a golf club. He tried playing after the incident but quickly found it painful. He has not played for about five years. He has had problems with his right elbow and left shoulder. These interfered with his ability to play golf. The elbow has resolved. However, the shoulder is stiff in the mornings. Mr Horan believes the medicines he takes for his back overcomes any stiffness and soreness of his shoulder.
124Trail bike riding was a longstanding pastime for Mr Horan. He no longer rides his trail bike. It was stolen in 2017. His inability to use it owing to the state of his back precluded its replacement.
125Before the incident, Mr Horan loved bushwalking. He did this with his trail bike riding. He has walked a few times since the incident but the uneven ground increases his pain significantly. He no longer enjoys bushwalking.
126Mr Horan is mechanically minded. Apart from riding trail bikes, he used to tinker with them mechanically. As part of his mechanical interests, for many years he worked on motor vehicles, doing most things other than engine and transmission rebuilds. The latter too has stopped “because getting under cars or lying on a garage floor is no good for me”.[41]
[41] Affidavit sworn 214 February 2022 at paragraph [10]
Daily activities
127Mr Horan experiences flare-ups of his back. They can be triggered by the simple act of putting on and taking off his shoes and socks. Although flare-ups occurred before the incident, they are far more prevalent now.
128At home, he performs basic housework including cooking. He still mows and edges the lawn but far less than before. It causes back pain and he regularly now hires people to do those tasks.
Loss of former employment and current job
129Mr Horan cannot perform his former duties as a cabinetmaker/shopfitter. This is his trade and he worked in it for most of his working life. Despite finding a new job, he regrets the loss of his trade:[42]
“I enjoyed my trade…I enjoyed working on the tools and I feel as though my skills have diminished and a part of me has been lost forever.”
[42] Ibid at paragraph [14]
130And:[43]
“The work that I do now is much easier and I do some minor jobs and help out the other tradespeople under my supervision, however losing my trade is enormous to me and I am only 50 years of age.”
[43] Affidavit sworn 27 July 2022 at paragraph [10]
131His current job is full time. It involves some walking, sometimes more than 10 minutes. It bears no comparison with his pre-injury job. It has minor physical components, involving activities such as repairing or installing door handles and hinges, replacing locks and coat hooks, tightening screws and fixing chips in benchtops. It has a non-physical side in supervising the work of others. He is more on his feet. Moving about and driving less helps keep his back pain manageable.
132I was troubled by Mr Horan’s application to join Victoria Police and Dr Ganasan’s support. Since the incident, he has not had significant periods of time off work and was working when he applied. Mr Horan was serious in applying and Dr Ganasan was supportive. After years as a magistrate, I have a reasonable understanding of the tasks of an operational Victorian police member. I could not imagine Mr Horan capable of interacting with the violent component of the community. Plainly, he and Dr Ganasan did not appreciate the demands of operational policing. It is unsurprising his application was rejected. What is surprising is that it progressed as far as it did.
Treatment
133Mr Horan has not returned to his physiotherapist after the lockdown ceased but has returned to his chiropractor. He gains benefit from the chiropractor’s treatment. He has been referred to specialists but has not seen any for no one has recommended surgery in the past. He manages his pain with his general practitioner and chiropractor.
134He takes Targin. Palexia is taken twice daily and Panadeine Forte when he feels the need. He occasionally takes OxyNorm instead of Panadeine Forte. He takes up to four Panadol or Nurofen tablets daily “to get me through the working day”.[44] Targin and Palexia are medicines which he was not taking before the incident.
[44] Ibid at paragraph [7]
135Mr Horan has worn a back brace for work from before the incident.
136No one suggests surgery for his back. The defendant submitted if Mr Horan’s back is as bad as he suggests, one would expect other forms of treatment, for example cortisone or nerve block injections. Whether the lack of such treatment is significant is a medical question and there is no such evidence on the point.
137In these cases, the plaintiff is asked to assess himself or herself, usually in the context of possible employment. Plaintiffs can be too optimistic or pessimistic in their assessments. I consider Mr Horan’s self-assessment is accurate where he compares his present state with that existing close to the incident. Although his reliability as an historian is an issue, in this respect I consider his evidence reliable. His unreliability stems from his memory of earlier events and their effects, not those closer in time to the incident.
138Applying the test required by Petkovski’s case and the test for a “serious injury”, I am satisfied Mr Horan has suffered a “serious injury”.
Conclusion
139I will grant leave to Mr Horan to start a proceeding to recover damages for his pain and suffering.
140I will hear the parties on the form of my order and costs.
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