Hulls v Victorian WorkCover Authority
[2020] VCC 437
•21 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04548
| STUART LUCAS HULLS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 9 April 2020 | |
DATE OF JUDGMENT: | 21 April 2020 | |
CASE MAY BE CITED AS: | Hulls v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 437 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the lower back – application for leave for pain and suffering consequences only – whether through the course of employment or through a discrete incident – identification of the pathology constituting the injury – development of a psychiatric condition unrelated to the claimed injury – further injuries in a subsequent transport accident – identification of the impairment consequences of the psychiatric condition and the injuries and the subsequent transport accident – identification of the impairment consequences of the claimed injury – determination whether the claimed impairment consequences are “serious” – credit
Legislation Cited: Accident Compensation Act 1995, s134AB
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; O’Donnell v Reichard [1975] VR 916
Judgment: The plaintiff has leave to commence a proceeding to recover damages limited to pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C O’Sullivan | Maurice Blackburn |
| For the Defendant | Mr R Stanley | Landers & Rogers |
HIS HONOUR:
Background
1 The plaintiff suffered a compensable injury in the course of his employment as a police officer, which he submitted has impaired the function of his lower back, and he has pain and suffering consequences which are “serious”.
2 Mr C O’Sullivan of counsel appeared for the plaintiff. Mr R Stanley of counsel appeared for the defendant.
An executive summary
3 The factual contest has given rise to a number of issues which I will set out shortly. Essentially, the defendant conceded that the plaintiff suffered a compensable injury. It denied that the pain and suffering consequences submitted by the plaintiff are “serious”. Additionally, it submitted that there are a number of issues which constitute insurmountable hurdles to the plaintiff succeeding.
My ultimate findings
4 I have considered the whole of the evidence and have weighed into account all of the issues which the defendant raised. Having done so, I have concluded that the plaintiff’s pain and suffering consequences are “serious”.
The issues
5 It is just as well to identify the issues raised by the defendant before proceeding much further.
6 The first issue is identifying the injury and the impairment of the body function resulting from the injury.
7 The second issue is whether the plaintiff suffered the lower back injury in the course of his employment, or whether he had a pre-existing lower back injury, and then, subsequently, a discrete aggravating incident on 22 February 2013.
8 The third issue is identifying the pain and suffering consequences resulting from the impairment of the function of the plaintiff’s lower back. In this respect, the defendant highlighted the plaintiff’s significant psychiatric condition, and the multiple injuries he suffered in a transport accident on 29 September 2017. The defendant submitted that the psychiatric condition and those multiple injuries (or at least some of them) also contribute to some of the consequences claimed by the plaintiff as being solely attributable to the impairment of the function of his lower back.
9 The fourth issue is whether the pain and suffering consequences of the impairment of the function of the plaintiff’s lower back were “serious” before the transport accident occurred.
10 The fifth issue is the plaintiff’s failure to adduce evidence from any medical practitioners who treated him for the transport accident injuries.
The need for a chronology
11 In order to answer each of the issues adequately it is necessary to set out enough of the factual background in which each of the issues will be addressed.
12 The plaintiff was born in December 1972. He is now forty-six years of age. He entered the Victoria Police on 5 November 2001. At some point before 2013, he rose to the rank of Senior Constable.
13 A necessary part of the discharge of his duties required the plaintiff to wear a ballistic vest. It conveniently housed many components necessary for the discharge of policing duties, for example handcuffs, a radio, OC spray and other components. The plaintiff described the vest he was provided as “too big and long” which caused him particular discomfort when “sitting in the police car”.[1]
[1]Plaintiff’s Court Book (“PCB”) 12
14 The plaintiff complained to the relevant authorities about his ballistic vest. He did so from about October 2010. The response was that his problem with the ballistic vest was being looked into, and that he would get a new vest. That did not occur.
15 It was in that setting that the plaintiff then described the onset of lower back pain in his first affidavit, and a particular event which resulted in more serious lower back injury:
“For a number of years leading up to February 2013 I experienced back pain at work from time to time. I often felt some pain in my back whilst sitting in the police car. I believe my vest contributed to this because its length caused me to sit awkwardly. I discussed my back pain with my GP occasionally. I underwent a CT scan of my low back on 13 February 2013.
On 22 February 2013 I was driving a police vehicle at work when I pulled over another vehicle for speeding. As I tried to get out of my car, my right foot slipped on some gravel. Because of the length of my ballistic vest, the steering wheel became caught between my left leg and my firearm. My body twisted and I felt a popping sensation in my lower back. Within about an hour I had a lot of pain in my lower back. I rang my boss who told me to go home.”[2]
[2]PCB 12
16 The plaintiff experienced “a lot of pain” in his lower back, and some pain and numbness travelling down into both of his hips. He saw a Dr Tynan, general practitioner, who prescribed him OxyContin and Endone to treat the pain he was experiencing.[3] Despite the level of pain and the treatment by significant painkilling medication, the plaintiff persisted with his work.
[3]PCB 12-13. I infer that Dr Tynan is in practice with Dr Sharples, although that is not entirely clear
17 Under cross-examination, the plaintiff repeated that the genesis of his lower back pain occurred when ballistic vests were introduced in about 2010. He obtained treatment from a chiropractor attending “a couple of times a week” before 22 February 2013.[4]
[4]Transcript 21
18 Additionally, the plaintiff saw Dr Sharples, general practitioner, on 6 February 2013. He told Dr Sharples that he was experiencing chronic lower back pain with pain radiating into his legs, and that he had experienced that distribution of pain “over years”. Dr Sharples referred the plaintiff to have a CT scan on 13 February 2013.[5] Subsequently, the plaintiff saw Dr Sharples to discuss the results of the CT scan. His clinical note of that date discloses that he had a “long discussion” with the plaintiff regarding the results of the CT scan during which mention was made of the plaintiff suffering sciatica, arthropathy and muscular spasm.[6]
[5]Exhibit 2
[6]Transcript 21-24
19 Throughout 2013, the plaintiff continued to see Dr Sharples, who prescribed him oxycodone and Panadeine Forte for pain relief.[7] He was referred to have a further CT scan, which was taken on 19 August 2013. According to the radiologist, it demonstrated non-compressive annular disc bulging at L1-2 to L5-S1, and mild left L5-S1 facet joint arthropathy, and no other significant abnormalities.[8] He was then referred to have a CT-guided nerve root injection, which was undertaken on 23 August 2013.[9] Dr Sharples noted that the plaintiff initially obtained a good result, but within about six days its good effect ceased.[10]
[7]PCB 13
[8]PCB 71
[9]PCB 13
[10]PCB 38
20 Dr Sharples provided four medical reports, none of which are particularly edifying. They are short, relatively uninformative, and do not provide much factual information to aid in the construction of a viable and useful chronology;[11] however, what I have gleaned from the content of the plaintiff’s first affidavit and Dr Sharples’ last report dated 5 February 2020, is that the plaintiff appears to have persisted with his work throughout 2013 and 2014.
[11]Dr Sharples reports are dated 25 February 2016, at PCB 33-34; 1 November 2017, at PCB 35-36; 22 May 2018, at PCB 37, and 5 February 2020, at PCB 38-40
21 In about June 2014, the plaintiff suffered an exacerbation of his lower back. According to the plaintiff, he was doing exercises shown to him by a physiotherapist when he experienced increased pain in his lower back.[12] The plaintiff saw Dr Tynan in July 2014. He was referred to have a further CT scan, which was taken on 14 July 2014. The radiologist compared that CT scan with the earlier CT scan and considered that the appearances on the subsequent CT scan were unchanged.[13]
[12]PCB 13
[13]PCB 72
22 The plaintiff then underwent a CT-guided nerve root injection on 5 August 2014.[14] This is not referred to in Dr Sharples’ report dated 5 February 2020. Other such injections are referred to by him in that report, but in 2013. In any event, Dr Sharples referred the plaintiff to have an MRI scan, which was taken on 24 September 2014. According to the radiologist, it demonstrated moderate bilateral L4-5 and L5-S1 facet osteoarthropathy, broad posterocentral disc herniation at L5-S1 level abutting the traversing bilateral S1 nerve roots, and other non-compressive disc herniations at L1-L2 and L2‑L3.[15] Dr Sharples inspected the MRI scan and considered that it showed multi-level facet degeneration and a disc bulge compressing the bilateral S1 nerve roots, and he referred to there being sciatica on both sides from the plaintiff’s lower back.[16]
[14]PCB 14
[15]PCB 73
[16]PCB 39
23 The plaintiff then saw Mr de la Harpe, orthopaedic surgeon, on 7 October 2014 on referral from Dr Sharples. He provided a report dated 24 February 2016.[17] Mr de la Harpe inspected the MRI scan and considered that it demonstrated two levels of degenerative discs at L4-5 and L5-S1, with a small prolapse at L5-S1. He discounted surgery as viable treatment. He referred the plaintiff to have an L5-S1 epidural injection. Mr de la Harpe reviewed the plaintiff on 19 February 2015. The plaintiff reported to him that it gave him some relief for a few days but wore off very quickly.
[17]PCB 24-25
24 Mr de la Harpe then arranged for the plaintiff to have an L4-5 CT-guided injection. He advised the plaintiff to reduce his weight. He also organised for the plaintiff to engage in a rehabilitation program with a physiotherapist in Ballarat. He next reviewed the plaintiff on 18 May 2015. He noted on that occasion, that the plaintiff had undergone three CT-guided injections which gave the plaintiff some improvement. He noted that he had lost 8 kilograms. He noted that the Pilates program he had engaged upon was going well, and he expected that the physiotherapist would increase his exercise regime to include gym work and swimming.
25 Mr de la Harpe considered that the plaintiff had suffered both discogenic and degenerative lower back pain predominantly from the L4-5 and L5-S1 discs. He considered that it was the incident which occurred on 22 February 2013 which resulted in previously non-symptomatic degenerative changes in the plaintiff’s lumbar spine becoming symptomatic, producing localised back pain without radiculopathy. He considered that the injury suffered by the plaintiff was consistent with the stated mechanism of injury. He had some doubt about whether the plaintiff could become fully operational as a police officer. He considered that he would be fit for a non-operational position. Otherwise, his prognosis was “somewhat guarded”, and he expected that the plaintiff’s future medical treatment would be through conservative management.
26 The plaintiff went off work in about June 2014. He returned to work in August 2015 on light duties with reduced hours. He undertook administrative duties. He gradually increased his hours.[18]
[18]PCB 14
27 The plaintiff next saw Dr Christelis, pain specialist and anaesthetist, on 23 September 2015 on referral by Dr Sharples. He provided two reports dated 8 March 2016[19] and 25 February 2020.[20] On initial examination, Dr Christelis noted that the plaintiff was “in obvious severe pain”, and was otherwise significantly restricted in his range of movements. His treatment comprised weaning the plaintiff off opioids. He prescribed him gabapentin and Palexia. He referred the plaintiff to have a diagnostic medial branch block, which returned a positive result, and which was a trigger for him to advise the plaintiff to undergo radiofrequency neurotomies.
[19]PCB 26-30
[20]PCB 31-32
28 According to a schedule of treatment referred to in Dr Christelis’s report dated 25 February 2020, Dr Christelis performed lumbar radiofrequency neurotomies on 11 December 2015, 14 October 2016 and 14 February 2020. He noted that the first radiofrequency neurotomy resulted in the plaintiff’s “excruciating pain” to cease. He was left with difficulty moving around in the mornings and a constant ache in his lower back. At that stage, Dr Christelis advised the plaintiff to use Endep and Gabapentin at night to help him sleep. He reported back to Dr Sharples that the result of the first neurotomy was that the plaintiff was “doing fantastically”. That observation made by Dr Christelis cannot be viewed in isolation, because immediately after making that observation he observed the plaintiff was finding it “hard to get going in the mornings” and he was still suffering a “constant ache” in his lower back. Additionally, he noted that the plaintiff was experiencing tiredness, loss of strength and a capacity “to do stuff”. He also noted the plaintiff was having two to three hours’ sleep a night, and he then referred to the plaintiff not only taking gabapentin for sleep, but also Cymbalta, which is used to treat depression.[21]
[21]Defendant’s Court Book (“DCB”) 319
29 Under cross-examination, it was put to the plaintiff that he was doing “fantastically”. He only partially agreed, by saying that was “possibly” the case. What was not put to him was the balance of the observations made by Dr Christelis that despite obtaining that degree of result from the treatment, he still had residual consequences of his lower back injury. Furthermore, that fantastic result needs to be seen in the context of the plaintiff’s first presentation to Dr Christelis, which was of a man in obvious severe pain.
30 It was at around this time that the plaintiff was referred to Dr Lui, police medical officer. He examined the plaintiff on 27 January 2016, 2 March 2016, 9 May 2016 and 31 August 2016. He provided a report dated 2 March 2016. The purpose of his examinations was to assess the plaintiff’s fitness for full police duties. The plaintiff was also examined, for the same purpose, by Dr Blaher, police medical officer, on 23 November 2016, 31 August 2016, 9 May 2016, 2 March 2016, 27 January 2016,[22] 30 May 2017 and 7 March 2019. He provided three reports dated 23 November 2016,[23] 30 May 2017[24] and 7 March 2019.[25]
[22]Each of these examinations were conducted with Dr Lui
[23]DCB 190-194
[24]DCB 196-201
[25]DCB 203-208
31 Under cross-examination, the plaintiff was taken to excerpts of these reports. The plaintiff said that he was very motivated to continue his recovery process following the good result from the neurotomy. His own assessment was that the pain was not impeding his ability to undertake general activities and physical tasks during an average day.[26] The plaintiff was specifically taken to the coding system used by Dr Lui, which scored the plaintiff’s capacity for relevant activities with an A, B, C or D.[27]
[26]Transcript 34-35
[27]DCB 162 and Transcript 35
32 Under particular cross-examination, the plaintiff was asked whether he was capable of driving, sitting for lengthy periods in a vehicle, driving in non-emergency situations, walking long distances, standing for lengthy periods of time, pursuing individuals, performing strenuous tasks such as running suddenly, negotiating stairs, negotiating slippery terrain, climbing and negotiating obstacles, pulling oneself up onto, balancing on and jumping down from obstacles, hurdling, vaulting, jumping over and avoiding obstacles, shrubs and ditches. The plaintiff agreed that he was asked about each of those things.[28]
[28]Transcript 36-38
33 It was not my impression, and confirmed after reading the transcript, that the plaintiff conceded that he was as capable of engaging in those activities as Dr Lui considered he was. He was specifically asked as a wrap-up question whether he was capable of those activities and that those activities were consistent with how he was faring in March 2016. His answer was “Ah, possibly”.[29]
[29]Transcript 38
34 The plaintiff was then taken to part of the history recorded by Mr Troy, general surgeon. He examined the plaintiff on 4 March 2016 contemporaneously with the opinion of Dr Lui.[30] Mr Troy recorded that the plaintiff could sit in an office chair for six hours, stand for one to one-and-a-half hours, walk without difficulty and was not troubled by coughing or sneezing. The plaintiff agreed that he had that level of tolerance.[31] He also agreed that at the time when Mr Troy examined him, that he had improved “about 80 per cent” when compared to what he was like before the neurotomy.[32]
[30]DCB 29-34
[31]Transcript 38
[32]Transcript 38-39
35 The defendant’s purpose in taking the plaintiff to the substance of the reports of Dr Lui and Dr Blaher was to establish that the plaintiff was fit for operational duties, and therefore, could not have pain and suffering consequences which were “serious” in 2016 or now. Furthermore, under cross-examination, the plaintiff conceded that the real reason why he ceased work was because of an overwhelming psychiatric condition.
36 Under cross-examination, the plaintiff was asked about an investigation undertaken centred upon allegations that he had stalked another person. The allegation was made in a formal sense in November 2016. When asked whether it was a significant life experience for him, the plaintiff’s answer was an emphatic “absolutely”.[33] Next, he was cross-examined that the plaintiff and his family were under a “catastrophic amount of mental stress” relating to aspects of what was happening in the his life at the time. The plaintiff agreed that was so. He also agreed that the culmination of these things resulted in him stopping work.[34]
[33]Transcript 48
[34]Transcript 50-52
37 Under cross-examination, the plaintiff agreed that there were a number of consequences of the psychiatric condition: anxiety nightmares, night sweats and significant interference with sleep.[35] Additionally, the plaintiff returned to work at Castlemaine police station in August 2017. He was put to work auditing serious injury and fatal collisions which occurred in the district which he found “extremely difficult to do”. It was as a result of those duties that he stopped work after a few days.[36]
[35]Transcript 51-52
[36]Transcript 53
38 The plaintiff candidly conceded that his decision to stop work altogether had nothing to do with his lower back injury.[37] He also conceded that it was quite possible that if he had not been exposed to the investigation relevant to stalking and the amount of mental stress he and his family were under, that he would have continued working.[38]
[37]Transcript 63
[38]Transcript 52
39 Under cross-examination, the plaintiff said that by April 2016, he was working five days on non-operational shifts. He subsequently completed operational safety and tactics training described in some of the materials as OSTT. He described the training as comprising a few days every six months. The training was simulated, except for an example he gave of the apprehension of an offender in which he took more of a passive role but took the offender by the wrists and applied handcuffs.[39]
[39]Transcript 41-42
40 Given the concessions made by the plaintiff relevant to his psychiatric condition, it is not necessary to summarise much of the evidence relating to the development of his psychiatric condition. I think a short summary is all that is warranted.
41 Dr Sharples referred the plaintiff to Ms Logan, psychologist, for treatment. The plaintiff first saw her on 30 April 2014. She provided three reports dated 15 April 2016,[40] 18 September 2017[41] and 15 May 2018.[42] Dr Sharples commented on the plaintiff’s psychiatric condition in his report dated 1 November 2017,[43] 22 May 2018[44] and 5 February 2020.[45]
[40]PCB 45-52
[41]PCB 53-60
[42]PCB 61-67
[43]PCB 35-36
[44]PCB 37
[45]PCB 38-40
42 Apart from Ms Logan, Dr Entwisle, psychiatrist, is the only other medical practitioner who has been engaged to recently examine the plaintiff and comment on his psychiatric condition.[46] Dr Entwisle examined the plaintiff on 23 April 2018 and provided a report dated 27 April 2018.[47] Both Ms Logan and Dr Entwisle referred to the general trauma to which the plaintiff has been exposed, and also to the death of one of his friends, his work-related lower back injury, the allegations of stalking, the duties he performed at Castlemaine, and his transport accident injuries as being at the seat of his psychiatric condition. Dr Sharples and Ms Logan considered that the plaintiff deserved the clinical diagnosis of Post-Traumatic Stress Disorder. Dr Entwisle considered that the plaintiff was suffering from an Adjustment Disorder with Depressed Mood and Anxious Mood secondary to his physical injuries and the likely trauma of the transport accident. He considered that the “main block” to the plaintiff returning to work was his non-work-related injuries following the transport accident.
[46]Except for Professor Walterfang, consultant neuropsychologist, who I will refer to later.
[47]DCB 57-65
43 Whilst not all of the observations made by Ms Logan and Dr Entwisle were put to the plaintiff under cross-examination, it is plain that the plaintiff conceded that the overall causes of his psychiatric condition resulted in his incapacity for work and ceasing work after he briefly performed duties at Castlemaine. I will return to some of the consequences of the psychiatric condition when I deal with what the plaintiff says are the pain and suffering consequences of the impairment of the function of his lower back.
44 The plaintiff was referred to Professor Walterfang, consultant neuropsychiatrist, for treatment through a rehabilitation program at Epworth Rehabilitation. A courtesy letter he wrote to the referring medical practitioner dated 15 January 2018 has been reproduced in the defendant’s court book.[48] It provides a short history of the development of the plaintiff’s Post-Traumatic Stress Disorder, and treatment which Professor Walterfang considered was appropriate. He prescribed the plaintiff Cymbalta, Endep and prazosin. He noted that the plaintiff was on a waitlist at the Austin Hospital PTSD Unit. The history he recounted in the courtesy letter is significantly short of a full history. He was not asked to comment on the cause of the plaintiff’s psychiatric condition except in a most general way. Apart from a reference to the plaintiff’s treatment, his comments are not at all helpful, and were not relied upon by either party in any event.
[48]DCB 323-324
45 The plaintiff applied for an ESS pension (Emergency Services & State Super) based upon his psychiatric condition.[49] He was advised by Victoria Police by letter dated 17 April 2019 that a recommendation had been made that he be retired on the grounds of ill health.[50] He was eventually granted the pension.
[49]Transcript 53
[50]DCB 109
46 I need to return to what the plaintiff says are the reasons why he was able to return to work despite complaining of an actively symptomatic and incapacitating lower back injury. Under re-examination, the plaintiff described the neurotomy he had in 2016 as potentially giving him up to two years’ relief from lower back pain. He had intended to return to see Dr Christelis, but did not, because in the meantime the transport accident occurred, resulting in the need for an extraordinary number of surgical procedures.[51]
[51]Transcript 74
47 The plaintiff returned to Dr Christelis on 3 December 2019. Dr Christelis was keen to wean the plaintiff off opioids. He reviewed his use of medication, noting that he was taking duloxetine (Cymbalta), gabapentin, Palexia, Norspan and Temgesic.[52] He advised the plaintiff to undergo another neurotomy, which he performed on 14 February 2020. He organised to review the plaintiff on 21 April 2020.
[52]It is necessary now to identify what each of these medications are. Cymbalta is prescribed to treat depression. Gabapentin is used to treat neuropathic pain. Palexia, Norspan and Temgesic are opioids
48 The plaintiff underwent the further neurotomy because the benefit he obtained through the previous neurotomy had worn off. He described the pain that he then experienced in his lower back as “quite excruciating”, resulting in him needing “excess pain medication” because the pain was “becoming really quite severe”.[53]
[53]Transcript 76
49 The plaintiff did not obtain the same level of relief from that neurotomy when compared with the previous neurotomy. He described what relief he obtained to his back pain was “slightly less sharp, but there has not been any major improvement”.[54] The plaintiff has stopped using Norspan. He continues to use gabapentin and Palexia daily for pain relief, and Temgesic a couple of times a week.[55]
[54]PCB 20
[55]PCB 20
The transport accident
50 On 29 September 2017, the plaintiff was riding a dirt bike. His vision was blurred by dust, with the result that he must have left the roadway on which he was riding because he collided into a tree. He suffered a number of major skeletal injuries which are referred to in a report of Alfred Health dated 7 February 2019.[56] The injuries which have required the most surgical attention are the fracture of the distal right femur, fracture of the right patella and fracture of the pelvis.
[56]DCB 326-327
51 The plaintiff estimated that he had two or three episodes of surgery on his pelvis, the last being somewhere between September to November 2017. He described the first episode of surgery to his femur and right knee as amounting to rebuilding the damaged bone. He estimated that he had three further episodes of surgery to apply bone grafting, and a final episode of surgery to remove metalwork, the last being in October or November 2019.[57]
[57]Transcript 81
52 The plaintiff came under the care of Mr Mattias Russ, surgeon, at The Alfred hospital from the time he was admitted. I understood from the thrust of the plaintiff’s evidence that Mr Russ performed all the episodes of surgery.[58]
[58]Transcript 56
53 Under cross-examination, the plaintiff said that he no longer has pain in his right leg nor pelvic region. The defendant pointed to two persisting problems consequent upon the major injury to the plaintiff’s right leg, the first being his reliance on crutches, and the second being altered leg length which Dr Christelis noted to be about 13 millimetres. He also noted that the plaintiff was considering a further procedure to extend the length of his femur.[59]
[59]PCB 32
A return to work
54 The plaintiff obtained employment with VicRoads in about May 2019 performing administrative duties and some driver assessments. He works about three days per week.
55 The plaintiff’s boss at VicRoads knows of his lower back injury. The plaintiff is allowed to get up and move about as he needs to. He has found that sitting for long periods of time increases the pain in his lower back and legs. He also finds that when he undertakes driver assessments, that he experiences a lot of increased lower back pain.[60]
[60]PCB 19-20
The relevant medical evidence
56 I have reviewed much of the medical evidence relied upon by the plaintiff except for the examination of the plaintiff by Mr Wallace, neurosurgeon, and his opinion. The preponderance of the opinions of the plaintiff’s treating medical practitioners is that he suffered a significant injury to his lower back.
57 Mr Wallace examined the plaintiff on 25 November 2019. He provided a report dated 2 December 2019.[61] The history provided by the plaintiff centred upon what occurred on 22 February 2013; however, the plaintiff did give Mr Wallace a history of wearing an oversized ballistic vest, about which he had complained for about two years. The plaintiff also gave Mr Wallace a history, albeit a brief one, of being troubled by Post-Traumatic Stress Disorder and injuries he suffered in the transport accident.
[61]PCB 68-70
58 After examining the plaintiff and inspecting some radiology, Mr Wallace considered that the plaintiff had suffered a soft tissue injury to his lumbar spine, disc injuries at L4-5 and L5-S1 and compression of the lateral cutaneous nerves of the thigh, producing pain and numbness in his thighs. He considered that the plaintiff could not realistically undertake the work of a policeman or return to full-time unrestricted work “considering his back injury alone”. He considered his prognosis to be poor, and added that he considered that the plaintiff was permanently prone to lower back and leg pain resulting from the injury. He considered the prospect of surgery to be a remote risk.
59 The defendant had the plaintiff examined by a number of surgeons. All of them examined the plaintiff prior to the transport accident. None of them appear to have been aware of the treatment provided by Ms Logan and the diagnosis of Post-Traumatic Stress Disorder. Their opinions are of limited value. The defendant did not rely upon them, save relevant to a question of the plaintiff’s credit. I think a fair summary of that medical evidence is as follows:
·Mr Scott, general surgeon, examined the plaintiff on 5 June 2013. He provided a report of the same date.[62] He considered that the plaintiff suffered an aggravation of degenerative changes throughout his lumbosacral spine with a disc prolapse at L5-S1 causing intermittent lumbosacral nerve irritation, but with no evidence of any lower limb radiculopathy. He considered that injury to be an exacerbation of the pre-existing problems which the plaintiff had with his lower back.
·Mr Shannon, orthopaedic surgeon, examined the plaintiff on 4 August 2014. He provided a report dated 6 August 2014.[63] He considered that the plaintiff was suffering from a mechanical lower back problem with lumbosacral disc degeneration and a disc protrusion at L5-S1 consistent with the first CT scan.
·Mr Doig, orthopaedic surgeon, examined the plaintiff on 9 November 2015. He provided a report of the same date.[64] He considered that the plaintiff had suffered an aggravation of a pre-existing condition which he described as facet joint degeneration at the lumbosacral spine.
·Mr Troy, general surgeon, examined the plaintiff on 4 March 2016. He provided a report dated 6 March 2016.[65] He considered that the plaintiff had suffered an aggravation of pre-existing degenerative changes at L4‑5 and L5-S1 and facet joint arthropathy at those levels.
·Dr Kennedy, clinical and forensic psychologist, examined the plaintiff on 13 April 2016. He provided a report dated 10 May 2016.[66] He considered that the plaintiff had suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
·Associate Professor Goldwasser, orthopaedic surgeon, examined the plaintiff on 26 May 2016. He provided a report dated 27 May 2016.[67] He was asked to perform an impairment evaluation of the plaintiff’s spine. He provided a general diagnosis that the plaintiff had probably aggravated “degenerative changes in his lower back”. I assume that his reference to the degenerative changes was derived from his inspection of radiology he was provided.
[62]DCB 6-11
[63]DCB 14-20
[64]DCB 22-26
[65]DCB 29-34
[66]DCB 35-45
[67]DCB 46-54
60 The examining surgeons provided diagnoses which, broadly speaking, identify pathology in the plaintiff’s lower back which they considered was a cause of the pain about which the plaintiff complained. They considered the plaintiff’s treatment and his capacity for work, but overall it strikes me that they were not in a position to say much, because the preponderance of their opinions points to the plaintiff needing to be reviewed no doubt for the purpose of seeing his progress and whether he required any particular treatment or could return to some level of policing work, or other work.
61 Dr Kennedy’s attention was directed to what psychological/psychiatric injury the plaintiff suffered secondary to the lower back injury. He, like the examining surgeons, examined the plaintiff before the transport accident. It would appear that he was not aware of the treatment provided by Ms Logan, and the diagnosis of Post-Traumatic Stress Disorder.
62 I have summarised the critical aspects of the examination of Dr Entwisle. I will return to some aspects of the history he recorded when I deal with the consequences claimed by the plaintiff.
What happened to the Plaintiff
63 The plaintiff swore two affidavits in which he described the pain and suffering consequences of the impairment of the function of his lower back. The following is a summary of those consequences:
·Constant pain in the lower back
·Sensation of numbness and ache travelling down as far as the knees
·Difficulty bending over
·Difficulty walking for long periods
·Difficulty sitting for long periods
·Some interference with sleep, although, the lower back injury is not the only cause of that interference
·The need for significant pain-relieving medication at various times – oxycodone, Panadeine Forte, Lyrica, Endone, Fentanyl, gabapentin, Palexia, Norspan, Temgesic
·Need for the interventionist treatment provided by Dr Christelis, including, neurotomies
·Need for continuing pain-relieving medication prescribed by Dr Christelis of gabapentin, Palexia, and Temgesic
·The need to use a caravan to go on camping holidays rather than sleeping in a tent or in a swag
·An inability to go bushwalking and be active when on camping holidays
·An inability to sit in order to play the drums
·An inability to play the guitar for more than 30 minutes or so
·Serious interference with his sex life due to pain and the loss of sex drive and the side effects of the medication
·An inability to play with his children
·Interference with the tasks required of him in his present employment.
64 The defendant submitted that the plaintiff bears the burden referred to in Peak Engineering & Anor v McKenzie[68] that where two different injuries are concurrently producing pain and suffering consequences, it will ordinarily be necessary to make findings about all the pain and suffering consequences which are operative at the date of trial. This is essential as a precondition to the task of deciding which of the pain and suffering consequences are attributable to which injury.
[68][2014] VSCA 67
65 The different injuries or medical conditions which the defendant submits are concurrently producing pain and suffering consequences are the psychiatric condition and the right leg injury which the plaintiff suffered in the transport accident.
66 The plaintiff suffered major psychiatric trauma, resulting in the Post-Traumatic Stress Disorder. One of the consequences of it is interference with sleep. One of the consequences of interference with sleep is an interference with the plaintiff’s level of energy.[69] The defendant submitted that the reduction in levels of energy would inevitably impact upon the plaintiff’s capacity to engage in physical activities which he says are the pain and suffering consequences caused by the impairment of the function of his lower back.
[69]Transcript 65
67 Under cross-examination, the plaintiff was asked about a history he gave to Dr Entwisle that it is not the pain which interferes with his sleep, but waking at night in sweats due to the impact on him of the transport accident.[70] The plaintiff has also suffered from a sleep apnoea condition which interferes with his sleep. He has sought medical treatment. He now uses a CPAP device at night to help him sleep.[71] The concessions made by the plaintiff in that regard are contrary to the flavour of what he said in his first affidavit. He said that he wakes at night with back pain and has generally slept poorly since injuring his back. Under re-examination, he said that he does not get a full night’s sleep, perhaps getting five or six hours each night.[72]
[70]Transcript 65
[71]Transcript 64-65
[72]Transcript 75
68 Whilst the psychiatric impact on him of the transport accident appears to be a potent cause of interference with sleep, I accept that the plaintiff has very significant lower back pain which contributes to interference with sleep. It is not possible to quantify the contribution of both any further.
69 Whilst the interference with sleep results in a reduction in levels of energy, I accept the plaintiff’s evidence that the pain and suffering consequences of the impairment of the function of his lower back are as he described them in his affidavits and in his oral evidence, and as I have summarised them above. He was not cross-examined, for example that his capacity to go on camping holidays, play the drums and play the guitar are in some way impacted upon by reduced energy. Therefore, I accept his evidence at face value that it is the impairment of the function of his lower back which are the cause of those pain and suffering consequences.
70 I accept the plaintiff’s evidence that after suffering many episodes of surgery to his pelvis and right leg, he has now reached a stage where he does not need to use crutches, and no longer has any pain in his pelvis or right leg. He does have a shortening of his right leg for which surgery has been spoken about, but given that I accept the plaintiff’s evidence in this respect, I do not accept that the shortening of his right leg plays any material role in contributing to the production of pain in his lower back.
71 Under cross-examination, the defendant asked the plaintiff why he had not obtained a report from Mr Russ, and whether Mr Russ was the person who could authoritatively comment on the transport accident injuries. These questions were rather more asked to make the point that there is no evidence from Mr Russ, and indeed, no evidence adduced by the plaintiff regarding the transport accident injuries except for the report from Alfred Health.
72 I apprehended that the purpose of the cross-examination was to create the platform for a submission based upon O’Donnell v Reichard.[73] The defendant emphasised clinical observations made by Dr Christelis on 3 December 2019 that examination revealed facet joint pain bilaterally, some cluneal neuralgia, and a prominent paraspinal musculature on the right-hand side which he presumed had occurred because of altered right leg length.[74]
[73][1975] VR 916
[74]PCB 32
73 The defendant submitted that these are matters on which Mr Russ could have commented in order to clear up whether some or all of these are due to the lower back injury or the transport accident injuries. Additionally, the defendant pointed to the fact that the plaintiff suffered a fracture of the right transverse process of the L5 vertebra referred to in the report of Alfred Health. It was managed conservatively.[75]
[75]DCB 326
74 Under cross-examination, the plaintiff denied suffering any problems of any significance with his lower back arising from the transport accident. The plaintiff said that Mr Russ told him that the fracture was a “tiny crack” to a facet at the back of a vertebra.[76] I accept that to be the position, because the fracture was treated conservatively, meaning that it was of relative insignificance.
[76]Transcript 54
75 The plaintiff has failed to explain why he did not obtain a report from Mr Russ, who the plaintiff might reasonably be expected to have called. He was likely to be a witness whose evidence would be favourable to the plaintiff. Speculation as to what he might have said is impermissible, but an inference may be drawn that his evidence would not have helped the plaintiff’s case. If I choose to draw that inference, then it may be taken into account against the plaintiff for two purposes: in deciding whether to accept any particular evidence which has been given on which Mr Russ could have spoken; and in deciding whether to draw inferences of fact open to me on the evidence that has been given again in relation to matters with respect to which Mr Russ could have spoken.
76 Whether I should draw any adverse inferences against the plaintiff needs to be seen in the context of his evidence under cross-examination. When he was challenged about the consequences of the transport accident injuries, he denied that his evidence that he had no pain in his right leg and pelvis was an attempt by him to gloss over the significance of those injuries and their consequences. He added that Mr Russ is not prescribing him medication. The medication he now takes is for his lower back injury. He also added that he considered that his primary problem as at today is his lower back injury.[77]
[77]Transcript 75
77 There is a significant body of evidence about the plaintiff’s transport accident injuries in his affidavits, histories in some of the medical reports, in the report of Alfred Health and in the plaintiff’s oral evidence for me to be satisfied that there is really no basis for me to draw any adverse inferences against the plaintiff. I accept his evidence relevant to his level of recovery from those injuries, and, more particularly, his evidence that what really troubles him now is his lower back injury for which he continues to have active treatment in the form of a recent neurotomy and the prescription of significant painkilling medication.
A return to the issues
78 I have largely addressed each of the issues in the body of my analysis of the evidence and my reasoning thus far, but for the sake of completeness, I will address each of the issues again.
The injury
79 I think the preponderance of the evidence points to the plaintiff having suffered an aggravation of pre-existing degenerative changes in his spine, disc injury at L5-S1, and facet joint arthropathy. In the end, I do not think there is anything particularly controversial in any of the diagnoses provided by the treating medical practitioners and medical assessors.
In the course of employment
80 I am satisfied that the plaintiff’s back injury was significantly contributed to by the need to wear the ballistic vest. Its use was the genesis of his lower back injury, and was implicated in the incident which occurred on 22 February 2013. Therefore, I think it is an artificial exercise to separate what occurred after 2010 from what occurred on 22 February 2013.
Peak Engineering[78]
[78]ibid
81 I think I have dealt adequately with the contributors to the plaintiff’s pain and suffering consequences above.
Serious injury before the transport accident
82 I am not satisfied that it is possible to define with the necessary level of precision what the pain and suffering consequences suffered by the plaintiff were like before the transport accident occurred.
83 The thrust of the plaintiff’s evidence relevant to pain and suffering consequences is directed to what those pain and suffering consequences are now. There is no direct evidence from the plaintiff that all, or most, of those pain and suffering consequences were also present in 2016 and 2017 and before the occurrence of the transport accident.
84 The plaintiff submitted that I should read what he says in his affidavits and what he said about his pain and suffering consequences in his oral evidence as applying retrospectively. Whilst I can see that there is some merit in that submission, I am uncomfortable in accepting it in the absence of direct evidence from the plaintiff.
85 Just to be clear about this, it is evident that the plaintiff was troubled by his lower back injury in 2016 and 2017 before the occurrence of the transport accident. He was undoubtedly troubled in a number of ways, but principally attention was being directed to his capacity to work, and his need for medication. There is no direct evidence, for example of an inability to go camping, play the drums and play the guitar, and like pain and suffering consequences, which he submits are at the heart of his case when analysed at the time of trial.
O’Donnell v Reichard[79]
[79]ibid
86 I am not satisfied that there is a proper basis upon which I can, or should, draw any adverse inferences against the plaintiff for the failure to obtain evidence from Mr Russ.
The ultimate question
87 I am satisfied that the plaintiff has suffered each of the pain and suffering consequences which I set out in paragraph 63 above.
88 I accept the plaintiff’s evidence that the levels of pain he was experiencing in his lower back described by Dr Christelis was severe pain with very significant limitation of movement. I accept the plaintiff’s evidence that the neurotomy he had in early 2016 gave him the fantastic result described by Dr Christelis; however, I also accept his evidence that the good effect of it wore off. He was unable to have a further neurotomy because of the transport accident injuries which interrupted the treatment provided by Dr Christelis, until recently, when he had a further neurotomy. I accept his evidence that it has not given him anywhere near the relief he previously experienced.
89 I accept the plaintiff’s evidence that the level of pain he has now is very significant. I think that is demonstrated by the fact that he has been prescribed an extraordinary amount of painkilling medication over the years. Dr Christelis was concerned to wean him off the opioids; however, he continues to be prescribed very significant painkilling medication, including opioids, which I accept are necessary to treat the level of pain he experiences.
90 I watched the plaintiff’s evidence as closely as I was able to, given that it was evidenced given through a video linking system. He seemed to me to be a straightforward witness who gave a good account of himself. I am fortified in the view that his pain and suffering consequences are as serious as he has outlined because of the extraordinary volume of treatment he has had over the years; Dr Christelis’ view that before the successful neurotomy he was dealing with someone in severe pain; that its good effect has worn off, returning the plaintiff to severe pain, and the previous successful treatment by neurotomy has not given the plaintiff very much relief. He now appears to be left with a very painful lower back with pain radiating into both of his legs.
91 The pain and suffering consequences have interfered with nearly every aspect of the plaintiff’s life. He is in constant pain. His movements are restricted. His enjoyment of activities which were a central part of his life have been interfered with significantly.
92 There is no doubt that the transport accident injuries have interfered with the plaintiff’s mobility and enjoyment of life. There is also no doubt that his psychiatric condition has done the same. I have considered their contribution to his pain and suffering consequences, and am satisfied that the pain and suffering consequences I have set out in paragraph 63 are consequences of the impairment of the function of the plaintiff’s lower back and not of the other injuries and condition.
93 Therefore, I am satisfied that the plaintiff’s pain and suffering consequences are at least very considerable. I am satisfied that those consequences satisfy the relevant serious injury test, and I have reached that level of satisfaction by making the relevant comparison with like impairments, as I am obliged to do.
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