Ioannidis v Floor Solutions and Preparations Pty Ltd and VWA
[2012] VCC 976
•4 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-02014
| JOHN IOANNIDIS | Plaintiff |
| v | |
| FLOOR SOLUTIONS AND PREPARATIONS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 June 2012 | |
DATE OF JUDGMENT: | 4 July 2012 | |
CASE MAY BE CITED AS: | Ioannidis v Floor Solutions and Preparations Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 976 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – injury to the thoracolumbar spine – pain and suffering only – whether consequences to the plaintiff are serious
LEGISLATION CITED – Accident Compensation Act 1985, ss.134AB(16)(b), 134AB(37) and (38).
CASES CITED –Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Annett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Dwyer v Calico Timbers Pty Ltd No 2 (2008) VSCA 260.
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell | Slater & Gordon |
| For the Defendants | Mr N Rattray | Lander & Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant from November 2000 until December 2005 (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to paragraph (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the thoracolumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities.
9 By subsection (38)(c) of the Act the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.
12 The plaintiff relied upon two affidavits and he was cross examined. Further, he relied upon an affidavit sworn by his wife, Ingrid Ioannidis, on 22 May 2012. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
13 The plaintiff is presently aged forty five, having been born in March 1967. He is married with a seven year old daughter from his current marriage. The plaintiff’s fourteen year old daughter from a previous marriage also lives with the plaintiff’s family.
14 The plaintiff attended school until Year 11. He then worked in hardware sales and for a while he worked in a bottle shop at an IGA supermarket until obtaining a job at a hostel as a personal care attendant.
15 Whilst working in the bottle shop in 1991, the plaintiff injured his lower back (“the 1991 injury”).
16 In addition to the 1991 injury, over the years the plaintiff suffered some aches and pains. From time to time from his twenties, the plaintiff attended the RMIT osteopathic clinic (“RMIT Osteo”) for maintenance type adjustments.
17 Many years ago, the plaintiff saw a chiropractor in Reservoir and had a few days off work. The plaintiff did not recall having an ongoing problem, although he continued to have occasional osteopathic treatment at RMIT Osteo for his right hip, buttock and right groin pain.
18 In cross examination, the plaintiff agreed that in 1991 whilst working at IGA he felt a sharp pain in his mid back, the same area where he now experiences pain. He attended RMIT Osteo during his twenties for problems through his buttocks and groin on a needs basis, maybe once a year.
19 The plaintiff could not recall having a problem with his back in 1996 as his physiotherapist, Mr Richards, recorded in 2006. In 2002 to 2003, maybe the plaintiff had some soreness going to the gym but he could not recall clearly having problems with his back.
20 The plaintiff agreed he could not say he had a perfect back when he started work with the first defendant
21 In re-examination, the plaintiff was asked about this comment. Between 1991 and starting work with the first defendant, he could not remember a specific incident in which he hurt his back. His current pain is in his upper back and different to the sharp pain he experienced in 1991.
22 Following the 1991 injury, the plaintiff saw a chiropractor maybe three or four times and then returned to normal work. His back pain did not stop him stocking supermarket shelves and he was able to do his job without the need for time off.
23 Whilst the plaintiff may have only attended an osteopath from his twenties once a year, there were probably times when he went without treatment. The focus of that early treatment was on his hip, buttock and groin, which was an on and off problem.
24 In about November 2000, the plaintiff commenced work with the first defendant, having know the company owner, Mr Moore, for some years.
25 It was casual employment but the plaintiff worked the equivalent of full time hours. In the financial year ending June 2004, he earned in excess of $45,000 gross.
26 The work with the first defendant was heavy, with a lot of lifting of concrete grinding and concrete scabbling machines. The plaintiff deposed he mentioned to the first defendant on several occasions that some of the job aspects were heavy.
27 In cross examination, the plaintiff said he could not recall complaining to anyone directly in charge at work of problems with his back. He recalled his back was always sore at work and he remembered telling Greg Pool, a fellow employee, when they were going out to a job, that he had a back problem. However, Mr Pool did not want to get involved in the plaintiff’s case, as he was still working for the first defendant.
28 After commencing work with the first defendant and consistent with the heavy nature of his duties, the plaintiff began to have more regular visits to RMIT Osteo and treatment for his back and hip. He recalled, in particular late in 2003, developing stronger pain in his upper back and rib region but he continued at work. In particular, he then had pain through the rib region into his back.
29 The plaintiff continued working, hoping the pain would go away. Eventually, however, it was obvious to him he needed to see a doctor. On 3 December 2005, the plaintiff attended his general practitioner, Dr Arambepola, and a couple of days later a CT scan was organised and the plaintiff was put off work on 8 December 2005.
30 In cross examination, the plaintiff said he initially went to the physiotherapist twice before he saw his general practitioner. He was not attending a physiotherapist prior to that time.
31 The plaintiff confirmed there was not a specific episode at work and that he just realised he had a problem with his back when lifting his daughter, after which his wife told him to see a doctor.
32 The plaintiff could not remember clearly the onset of the pain with the first defendant. From when he started in that job, work was hard and getting harder, to the point in December 2005 where he stopped work. He had not taken any time off work for his back problem before that time.
33 The plaintiff confirmed the heavy nature of his work, saying basically everything was heavy. He was sore but just kept going. He had similar pain before December 2005. His back was constantly sore for a couple of years, but he continued to work with difficulty.
34 In cross examination, the plaintiff confirmed he signed a claim form on 13 January 2006 setting out he suffered a fractured vertebra and injured his back and rib area. He described mid to upper back pain going to the ribs. He answered “No” on the claim form to having a previous spinal disability but it might have been he had had that problem possibly in the past.
35 In 2006, the plaintiff was offered light work with the first defendant involving sweeping and some office work on minimal hours but the first defendant did not really want him back as he could not “work on the tools”.
36 Dr Arambepola arranged for the plaintiff to have further osteopathic treatment and he saw Dr Davies in this regard, later changing to Dr Biddenback in April 2006.
37 Dr Arambepola then referred the plaintiff to an orthopaedic surgeon, Mr Ton, who suggested a bone scan, but no other treatment. The plaintiff could not recall what Mr Ton discussed with him.
38 The bone scan was carried out on 3 July 2006 and the plaintiff was then referred to Mr D’Urso, neurosurgeon, for a second opinion.
39 In cross examination, the plaintiff said he doubted he told his physiotherapist, Mr Richards, that he was pain free in mid 2006. The plaintiff had physiotherapy through until February 2007.
40 Mr D’Urso arranged further MRI scans and reviewed the plaintiff in August 2007. He then arranged for the plaintiff to have a series of facet joint injections and referred him to the Metropolitan Spinal Clinic (“the Spinal Clinic”) where he saw Dr Gassin in November 2007.
41 By that stage, the plaintiff had finished a TAFE course in Health Support Services at NMIT (“the course”), which he had commenced in July 2007, and he had obtained work at Bundoora Extended Care Centre (“Bundoora”) as a patient services assistant.
42 The rehabilitation provider, Work Focus, gave the plaintiff the idea of the patient services job. It was not something the plaintiff previously had specific knowledge about.
43 In cross examination, the plaintiff described the course. It was three days a week and components were very difficult and sometimes the plaintiff left TAFE in tears because of his back pain, but he just had to finish his study.
44 The course involved work in the kitchen which was very difficult for the plaintiff and also cleaning on wards, working as a theatre porter, ward clerk and in patient transport.
45 The plaintiff took the job at Bundoora to get him into a hospital position. The job involved some administrative work and the plaintiff was also required to look after a fleet of cars and do some patient transport. The job was permanent part time for twenty eight and a half hours per week, at an hourly rate of $20.
46 The plaintiff took the job because he thought it was one that he could handle with his back condition. As of December 2010, when the plaintiff swore his first affidavit, he thought he was working at about the limit of his capacity.
47 The plaintiff then deposed he did not think he could now do a job that involved the sort of labour the first defendant required of him. He could not do work requiring prolonged sitting, standing, bending or lifting, and realistically, he thought his days of manual work were over. His current employment was ideal as it was light and he had the freedom to sit, stand and move around.
48 The plaintiff was then worried about the future and worried if he was to lose his current light job, then he would have trouble getting alternative employment. He got satisfaction from going to work and hoped to remain at Bundoora.
49 Dr Gassin arranged for the plaintiff to have a series of medial branch blocks in April and May 2008. In September that year, the plaintiff underwent a radio-frequency neurotomy.
50 In cross examination, the plaintiff explained that before the branch blocks he had more pain on the right side. Thereafter, the pain seemed to have transferred to the left. He contemplated having the procedure done to the left side, but then changed his mind as he did not want to be undergoing that type of treatment every couple of years.
51 After the neurotomy, the plaintiff’s pain seemed to swap from one side to the other. He thought that procedure helped but then a bit like the branch blocks, he just did not want to keep undergoing that treatment and as time went on his pain just went back to the level he now experiences on both sides.
52 After 2008, the plaintiff continued to regularly attend his general practitioner and have osteopathic treatment with Dr Broadbent. He also had acupuncture with Ms Wells at the same clinic.
53 The plaintiff then took Celebrex and Panadol Osteo from time to time, but found his best form of treatment was to simply try and rest or use Dencorub.
54 The plaintiff deposed in December 2010 that he continued to have pain in his spine, in the upper back and rib area, which at times was severe and bad enough to interfere with his sleep. No further treatment had been suggested other than what he had undergone.
55 The plaintiff then had fluctuating pain with some days not too bad and then on others, the pain was severe. The pain interfered with most activities of his life. It affected his marriage and the intimate side thereof was restricted due to pain. Further, at times he became frustrated, irritable and grumpy with his family.
56 In his more recent affidavit sworn 2 May 2012, the plaintiff deposed he has constant pain in his back, particularly the upper back. The level of pain fluctuates but he is never pain free. If he does too much physical activity then he usually suffers an increase in pain. He recognises the warning signs for the onset of pain so he tries to limit his activity to the extent where it is possible to do so.
Activities
57 As of December 2010, repetitive or physical tasks aggravated the plaintiff’s pain. Cooking, gardening, sitting or standing for too long all aggravated his symptoms.
58 The plaintiff then had difficulty with household tasks and his wife did more work around the house and in the garden, but he tried to do what he could. He did some gardening and home maintenance. Tasks that used to be very easy for him, such as painting, were then difficult and caused pain.
Current Treatment
59 At present, the plaintiff continues to have osteopathic treatment and acupuncture. He usually sees the osteopath for treatment to his spine and ribs about once every six weeks, funded until recently by QBE. He has acupuncture on the same basis. The plaintiff sees his general practitioner as needed for prescriptions.
60 The plaintiff continues to take over-the-counter Panadol Osteo and is prescribed Celebrex by Dr Arambepola as needed. He takes as little medication as possible as he does not like taking tablets. He estimates about six to ten days in an average month he needs medication.
61 In cross examination, the plaintiff described a tolerance of pain to a certain degree. He does not want to take lots and lots of medication and he is happy enough to try and manage without it. He has learned some tricks involving using a heat pack and stretching his ribs and has been encouraged to do self management exercises.
62 In cross examination, the plaintiff described good days but also bad days, and never great days. He has never been pain free since December 2005. He tries to learn to live with his pain.
63 On a good day, the plaintiff’s rates his pain three or four out of ten. He has a bad day of ten out of ten a couple of times a month, and then he takes pills. He takes a Panadol Osteo tablet in the morning and one in the evening. He tries to take less Celebrex, because he is worried about its side effects.
Current Work
64 Since the middle of 2007, the plaintiff has been employed at Bundoora as a patient services officer contracted to work twenty eight and a half hours per week, but he usually works twenty nine hours and the extra half hour is then credited to him by way of a rostered day off every few months. That day is not related to his back, “just general things.” The plaintiff’s employer is aware of his current back condition.
65 The plaintiff commenced the job at Bundoora on a part time basis, with the position being available for five weeks whilst another worker was on leave. That worker then retired and the plaintiff was able to take over his job.
66 The plaintiff is now classified permanent part time. He enjoys his work and is able to complete all hours and do all duties.
67 The plaintiff works three days a week from 8.30 am to 2.30 pm and two days to 3.15 pm or 3.30 pm. On two of those days he has forty five minutes to himself. During that time, the plaintiff just does whatever he wants and does not do anything physical. Sometimes he just lies down. The need to do so varies.
68 The plaintiff is able to change his posture at work. Some days are better than others. Some days after work he is quite sore. The plaintiff does not think he could consistently work full time but he could work some days. He could not work full time because there is just no time to have a rest. Towards the end of the day, his back gets sorer and at home he can at least drop onto a chair. He could not do that at work as he would have responsibilities with his job.
69 The plaintiff confirmed he did not know if he could get through a full time day with the knife-like stabbing pain in his ribs as when his pain was at its worse, he was very sore.
70 The plaintiff’s wife’s job as a social worker is well paid. It was always the case that she would earn more than him. The plaintiff now looks after the children when she is working. Her earnings do not affect the plaintiff’s inclination to go out and work full time. He and his wife did not plan this situation before he was injured. It was just the way things have turned out.
71 The plaintiff walks his seven year old daughter 150 metres to school every day. He attends school concerts and drives his daughter to sport twice a week and on Saturday. Obligations with his two daughters do not really inhibit the plaintiff’s ability to go out.
72 The plaintiff drives himself to work 800 metres from his house. There would not be a problem with childcare if the plaintiff worked full time. Arrangements could be made. He wants to work full time and did not stop working to look after the children.
73 The plaintiff disagreed that a lot more of his time is spent focussing on his children and he said he was just living normally. He disagreed that his routine with the children and part time work was like working full time. Looking after his children was not like a job.
Sporting and Recreational Activities
74 The plaintiff deposed in December 2010 that before injury, he enjoyed playing social basketball, fishing and travel. All those interests were now restricted. He was particularly restricted in what he could do with his children, which was very frustrating for him. He would like to be able to play sport and be able to be more active with them. He would like to have a hit of tennis with his children. He could do it, but afterwards he would suffer.
75 In cross examination, the plaintiff described playing C Grade veteran’s basketball for about six months after he stopped work but it was not helping his back so he stopped playing.
76 The plaintiff deposed he continues to be restricted for domestic, recreational and social activities. He confirmed fishing was one of his main recreations before being hurt and he was a member of the Melbourne Game Fishing Club (“the Fishing Club”).
77 Before injury, the plaintiff estimates he went fishing between twenty to forty days a year. Of that time, ten to fourteen days involved game fishing. He also participated in small competitions in the Bay.
78 The plaintiff has been an office holder at the Fishing Club since 2000. He presently continues in the role of secretary not really by choice, but having been pressured into it. The Fishing Club has only about sixteen members and is in decline.
79 The plaintiff has been game fishing on a couple of occasions since hurting his back. He travelled once to northern New South Wales in early February 2006. This trip was a pre-arranged game fishing trip for a number of days. He has also tried less strenuous forms of fishing.
80 The plaintiff’s ability to fish depends on the state of the ocean but fishing causes him problems. Game fishing is hard going, but he could do it. He just knows he is very limited in what he can now do. Because of his restrictions he has somewhat lost the passion for the sport.
81 On the recent fishing trip to Portland, the drive was not too bad. The main problem was a very hard bed at the motel. The plaintiff was very tired from fishing and then took a while to recover.
82 The plaintiff is getting better at recovering from these sorts of activities, with acupuncture having helped him for about the last year or so.
83 The plaintiff finds even the simple task of standing in one spot to fish from a boat or beach shoreline is difficult and increases his symptoms. He is nowhere near as keen on fishing or involved with it as he was before he hurt his back.
84 The plaintiff’s mother in law has a property at Phillip Island and the plaintiff’s family visit her from time to time. The plaintiff helps her around the house but he has suggested to her she sell the property as there is a lot to do. The plaintiff’s uncle also has a house at Phillip Island. Since his injury, the plaintiff does not go out for as long or as often fishing in his uncle’s boat with him.
85 In examination in chief, the plaintiff confirmed there had been no change in his back condition since swearing his May 2012 affidavit.
86 In cross examination, the plaintiff described problems with his sleep. He can sleep on his back and sometimes ends up in that position but it is very hard to turn over and from time to time he uses the slats and the bedside table to hold onto to do so.
87 The plaintiff is better in the morning. He has no problem with washing and dressing but when his back is sore, it is a bit difficult but he can manage.
88 The plaintiff does most of the cooking and meal preparation. He agreed there are now things he does less rather than it being a case of there being things he absolutely cannot do. His wife does the shopping. The plaintiff does the clothes washing but puts the clothes in an airer, rather than hanging them on the line.
89 The plaintiff does a bit of gardening and the lawn mowing but he has a problem with the whipper snipper. The whole front and back lawn take an hour and a half and the plaintiff tends to break up these tasks.
90 In cross examination, the plaintiff was shown a series of photos of him taken on 4 September 2009 at his house on a Sunday morning. He confirmed he was shown operating his lawn mower, changing the catcher as it became full of grass, bending down and pulling out weeds and later bending down and cleaning the mower. He agreed he would not have been shown having any difficulty with these tasks
91 The plaintiff can do things if he really has to, but he tries to avoid heavier activities because of his back. He is always in pain and after doing an activity like gardening or mowing, he tries to stretch out, he takes some pills and uses his heat pack.
Lay Evidence
92 The plaintiff’s wife, Ingrid, swore an affidavit on 22 May 2012. She is a social work clinical leader by profession and has been married to the plaintiff since 2004.
93 Prior to his injury, the plaintiff was a jovial and easygoing person, active, enjoying fishing, playing basketball and painting. Mrs Ioannidis has noticed a change in the plaintiff’s personality since injury, with him now having a shorter fuse and being more susceptible to mood changes.
94 The plaintiff is now less active and does not fish as much as he used to. He had had to give away basketball because of his injury. He packed up his easel and paint set as he had difficulty standing for prolonged periods.
95 Due to his back pain, the plaintiff often experiences difficulty sleeping, waking in the middle of night, and then has difficulty getting back to sleep. As his back is often stiff in the morning, he finds it hard to get out of bed and needs to hold onto the bed head to pull himself up into a seated position and then sit on the side of the bed for a minute before getting up.
96 As a result of the plaintiff’s back pain, she and the plaintiff have also had to buy a new king size bed with a bed head and better mattress. The plaintiff’s injury has adversely impacted on their sexual relationship.
97 Mrs Ioannidis notices the plaintiff’s back pain often increased as the day goes by. He often prepares meal in stages because of difficulty standing. He chops the vegetables and then picks the children up from school before finishing the cooking. Sometimes when she comes home from work, she has to finish making the meal as the plaintiff is in too much pain.
98 Mrs Ioannidis has noticed the plaintiff’s back injury has also restricted his ability to interact with and play sport with their children. When they attend the children’s concerts or plays, she has noticed that the plaintiff often has to stand up and walk to the back of the hall because he has problems with pain sitting for the long periods. Sometimes he does not attend those events because he knows the pain will significantly increase and he will pay for it afterwards.
99 Mrs Ioannidis confirmed the plaintiff is a very proud man and she thinks it upsets him that he cannot provide more for his family. He is very stoic in nature and often perseveres with a task despite being in pain.
The Plaintiff’s Medical Evidence
100 Matthew Richards, physiotherapist, from Spinal Management Clinics of Victoria, reported in September 2006.
101 Mr Richards noted the plaintiff first experienced lower back pain about ten years ago whilst working in a supermarket. After chiropractic treatment, the plaintiff made a full recovery, and about two or three years ago he experienced a slow worsening of low back pain whilst working for the first defendant. The plaintiff developed increasing symptoms throughout 2005 and was unable to continue working in December 2005.
102 The plaintiff’s presenting symptoms were central and right sided middle to lower back pain intermittently radiating to the left.
103 Mr Richards recommended that the plaintiff undergo a cognitive behavioural program and a functional restoration program. He thought the plaintiff appeared to be experiencing discomfort and a generalised deconditioning due to a thoracic spine postural dysfunction secondary to old compression fractures at T8 and T9.
104 Mr Richards considered it appeared those fractures may have been worsened over the years by heavy manual work. He thought that the plaintiff’s behavioural profile indicated a mostly consistent presentation.
105 Mr Richards wrote to the plaintiff’s general practitioner in November 2006, advising of the plaintiff’s participation in a functional restoration program at the Latrobe Clinic, at which the plaintiff reported he was managing his symptoms much better due to a decrease in the severity of his pain.
106 Mr Richards noted upon assessment there was an improved rotation range and there was a decreased level of tenderness. He noted the plaintiff was looking forward to redeployment after completing a TAFE course. He suggested that the plaintiff would most likely benefit from the continuation of his current program over the next three weeks and then progress into an independent gym based program.
107 Dr Gassin from the Spinal Clinic wrote to QBE on 23 November 2007 requesting WorkCover accept liability for bilateral T8 to T11 medial branch blocks.
108 Dr Gassin reported to the plaintiff’s solicitors on 21 November 2009. He noted the plaintiff was referred to the Spinal Clinic by Mr D’Urso for management of persistent back pain, and that he saw the plaintiff on 23 November 2007 and 21 November 2008.
109 The plaintiff gave a history to Dr Gassin that in 2003 he developed the gradual onset of low thoracic pain, but kept soldiering on until 2005 when he stopped work. The plaintiff reported his pain was most severe in the low thoracic region. He had played basketball until recently but had been advised to stop.
110 When first examined, the plaintiff said he was having a good day. He was noted to have a full range of spinal movement with no tenderness to palpation.
111 Dr Gassin noted the CT scan and bone scan of the thoracic spine of December 2005 and an MRI scan of the thoracic spine of 12 July 2007.
112 Initially Dr Gassin suggested the plaintiff try paracetamol when his pain was severe, rather than anti-inflammatories. Further, he suggested the plaintiff resume basketball, as there had been no change in his condition since he stopped playing. Dr Gassin also requested the branch blocks with a view to radio frequency denervation of the facet joints.
113 Bilateral T8 to T11 medial branch blocks performed on 8 April and 29 May 2005 were positive. Therefore, radio-frequency neurotomy of the T8 to T11 medial branches was performed on 5 September 2008.
114 On review on 21 November 2008, the plaintiff indicated that the neurotomy had led to good improvement in the pain on the right side of his chest. However, he still had significant left sided pain.
115 Dr Gassin wrote to WorkCover requesting liability be accepted for a repeat of the left T8 to T11 neurotomy. Liability was accepted for that procedure but the plaintiff had not returned for it to be carried out.
116 In Dr Gassin’s view, the plaintiff’s response to neurotomy suggested at least some of his pain was arising from the right mid to low thoracic facet joints. Dr Gassin considered the remainder of the plaintiff’s pain was arising from a low thoracic disc.
117 Dr Gassin concluded that the plaintiff was likely to suffer persistent thoracic back pain for the foreseeable future, and that his condition had stabilised. He thought the plaintiff may require occasional T9 to T11 medial branch frequency neurotomy, and also occasional analgesic medication.
118 Dr Gassin noted work activities involving lifting, bending, twisting, pushing and pulling may aggravate the plaintiff’s pain, but were unlikely to cause significantly more damage to his spine. He concluded the plaintiff had a capacity for at least light duties. However, in his view, physical work in the construction industry was likely to generate too much pain to be tolerated. Dr Gassin thought the level of disability suffered by the plaintiff would depend on the intensity of pain he was willing to put up with.
119 The plaintiff’s general practitioner Dr Arambepola reported in April 2006, March 2007, and more recently in May 2012.
120 The plaintiff presented to her in December 2005 with pain in both shoulders and mid thoracic area affecting his lifestyle. She noted there was no acute incident or injury at work prior to the plaintiff presenting with back pain, although he stated he had had pain for a few months.
121 On initial examination, the plaintiff had restricted movements and stiffness in the mid thoracic area. An x‑ray showed a compression fracture in the ninth and eighth thoracic vertebra.
122 In view of the fracture and ongoing pain, the plaintiff was referred to an endocrinologist, Professor Seeman, who suggested the plaintiff lose weight and work light duties.
123 Dr Arambepola believed the plaintiff’s work may have contributed to the fracture, although not directly. She thought in April 2006 he could not return to pre injury duties but could do light work. She noted treatment had been mainly with rest with short term relief with anti-inflammatories and osteopathy. She did not think surgery was indicated, and then thought the plaintiff would benefit from an occupational rehabilitation program.
124 Dr Arambepola reported in March 2007 that the plaintiff was referred to an orthopaedic surgeon, Mr Ton, who did a bone scan which came back as normal, and he diagnosed the plaintiff having mechanical back pain.
125 The plaintiff was referred to Spinal Management of Victoria, and undertook a multidisciplinary approach including physiotherapy. The plaintiff was then taking Celebrex for back pain, and there was no further treatment to offer.
126 As of March 2007, Dr Arambepola thought the plaintiff was very well motivated to return to work, and his prognosis remained good as long as he did not apply extra pressure or strain on his back with heavy manual work.
127 In her May 2012 report, Dr Arambepola noted she referred the plaintiff to a neurosurgeon, Mr D’Urso, who thought the plaintiff was symptomatic from thoracic spondylosis and that the wedge fracture could have been secondary to trauma.
128 Dr Arambepola noted some improvement in the plaintiff’s condition after the treatment at the Spinal Clinic, which included branch blocks and radio frequency neurotomy.
129 In Dr Arambepola’s view, the plaintiff’s back condition had then stabilised. She noted he was working as a personal services attendant at the local hospital and having regular osteopathic and acupuncture treatment for his back, with good result. She noted unfortunately, the funding for these sessions had ceased from 30 April 2012.
130 Dr Arambepola reported that the plaintiff took regular Panadol Osteo and up to six to eight Celebrex tablets a month for back pain. In her view, the prognosis of his condition was good given the lack of recent flare ups and the plaintiff not requiring regular strong analgesia.
131 Anna Davies, osteopath, first saw the plaintiff on 8 December 2005. The plaintiff then complained of pain in the mid lower thoracic spinal region. He told her his occupation involved very heavy lifting, using a jack hammer and loading heavy equipment and machines. In her undated report, Ms Davies advised the plaintiff should refrain from ever going back to his old job.
132 Dr Biddenback, osteopath, reported on 31 October 2006 that she had been seeing the plaintiff on a fortnightly basis after April 2006 following on from Dr Davies. She noted the plaintiff frequently spoke of his desire to return to work, but she did not think he could return to his old job. She thought he was ready for a rehabilitation or re education program. She was encouraging him to begin Pilates and postural strengthening.
133 Dr Biddenback further reported on 28 February 2007, noting the plaintiff ceased treatment in October 2006 after resigning from his job. She noted the area and nature of his pain remained unchanged but the frequency and intensity had significantly stabilised. She reported the plaintiff had had two significant flare ups since April which each took about two weeks to settle satisfactorily.
134 Mr D’Urso, neurosurgeon, reported on 6 October 2009, having first seen the plaintiff on 18 June 2007. The plaintiff initially told him of heavy work to the point in December 2005 where he could no longer work.
135 On examination, the plaintiff could flex his spine so that he came within five centimetres of touching his toes. He straight leg raised bilaterally to seventy degrees without pain and he could extend to twenty degrees. His spine showed some evidence of mild kyphosis in the thoracolumbar region.
136 The bone scan of July 2006, thoracic spine x‑rays of December 2005 and an MRI scan of July 2007 were noted by Mr D’Urso.
137 Mr D’Urso reviewed the plaintiff on 13 August 2007. The plaintiff then continued to describe chronic thoracolumbar pain radiating to the right side. A facet joint injection was arranged for diagnostic and therapeutic purposes.
138 The plaintiff was next reviewed on 26 October 2007. He then said the injection made no difference to his symptoms and he reported persisting pain at eight and a half out of ten. The plaintiff was then referred to the Spinal Clinic for consideration of radio frequency denervation.
139 Mr D’Urso diagnosed thoracolumbar degeneration. He thought that condition appeared to affect the facet joints and discs in the thoracic region in particular. Mr D’Urso considered there would also appear to be evidence of minor wedging at T8 and T9 which he thought may possibly be traumatic.
140 Mr D’Urso considered the plaintiff’s prognosis should be satisfactory. In his view, there may be a degree of degenerative progression of the plaintiff’s condition but he would be surprised if that was substantial. Other than radio denervation, Mr D’Urso suggested simple anti inflammatory and analgesic medication would be appropriate and some gentle physiotherapy may also be recommended.
141 Mr D’Urso suggested the plaintiff avoid more arduous physical and manual type employment if at all possible. He would not recommend the plaintiff perform repetitive bending and twisting movements in the workplace. He thought the plaintiff should avoid lifting weights in excess of ten kilograms and also avoid lifting weights from below the knee or above the shoulder. He considered the plaintiff should have the ability to ambulate freely in the workplace and avoid using heavy vibrating machinery.
142 Mr D’Urso did not believe the plaintiff had the capacity to perform unrestricted manual work as a concreter. He thought the plaintiff’s back condition could well affect his ability to perform unrestricted sporting and recreational activities, but gentle activities would be possible.
143 Dr David Fish, consultant occupational and environment physician, examined the plaintiff on behalf of QBE for the purposes of an AMA assessment on 25 January 2010.
144 The plaintiff told him that some time in 2003 he noted the development of low thoracic back pain which radiated to both lower limbs, more on the right than the left.
145 On examination, the plaintiff still suffered sharp stabbing pains over the right ribs, which felt hard and knife like. There was minimal pain in the thoracic spine.
146 The plaintiff was then averaging two Panadol Osteo tablets three times a week and Celebrex twice a week. He was attending acupuncture once every two weeks and also saw an osteopath monthly.
147 On examination of the thoracic spine, there was no tenderness even on percussion. There was mildly restricted rotation and lateral flexion but flexion and extension were normal.
148 Dr Fish thought the plaintiff suffered from ongoing thoracic referred pain into the lower limbs, noting investigations revealed a thoracic wedge compression fracture. In his view, investigations suggested that was due to aggravation of pre-existing thoracic spondylosis with wedge compression fracture of T9 with thirty three per cent loss of vertebral body height.
149 Dr Charles Castle, occupational physician, examined the plaintiff at his solicitor’s request on 7 September 2010.
150 The plaintiff told him of no particular incident precipitating his back pain and that he had ceased work in December 2005.
151 On examination, the plaintiff had pain in his right lower rib cage at the centre. Bilateral straight leg raising was to ninety degrees. There were no neurological abnormalities. There was tenderness over the T12-L1 intervertebral segment.
152 Dr Castle concluded the plaintiff had back pain arising from the lower thoracic spine. He thought the exact source of the plaintiff’s back pain was unclear, but noted the July 2007 MRI scan showed abnormalities at T8 to T11.
153 Dr Castle thought the plaintiff was not able to do repeated bending or twisting and unable to lift more than five or ten kilograms. Dr Castle considered pushing and pulling were limited and restrictions in that regard varied from day to day. He thought the plaintiff was unable to do prolonged sitting or standing and had no capacity for general manual labour, noting that he was now doing administrative work as a patient services officer. In Dr Castle’s view, the plaintiff had a limited capacity to do repetitive work.
154 Dr Castle thought the plaintiff’s incapacity was permanent and that the plaintiff had had adequate and appropriate treatment to which he had had a limited response.
155 Dr Castle expected the plaintiff to continue managing his current job, although he did not think the plaintiff was ever likely to be able to work full time, although that was a possibility. Noting that the condition was permanent, Dr Castle thought there had been a slight effect on the plaintiff’s social activities and domestic activity and limited his ability to do heavy cleaning. He thought the plaintiff needed to continue analgesics as necessary and that he required regular monitoring by his general practitioner. Further, he considered the plaintiff would need physiotherapy for acute exacerbations. Dr Castle expected the prognosis was reasonable.
156 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff on 9 March 2011.
157 The plaintiff told him of the onset of his symptoms in about 2005 as a result of heavy work.
158 On examination, the plaintiff had back pain and discomfort in the thoracic and upper lumbar area radiating to the buttocks.
159 Examination of the thoracic spine revealed increase in the normal thoracic kyphosis. There was diffuse tenderness and no other abnormality. Straight leg raising caused some mild low back ache and discomfort at fifty degrees. There was no neurological abnormality.
160 Mr Miller thought the plaintiff had degenerative disease in the thoracolumbar spine involving the lower thoracic area. In his view, there was no fracturing evident and the plaintiff had had a reasonable response to conservative treatment. Noting the plaintiff had ongoing symptoms, Mr Miller thought his prognosis was only fair.
161 Mr Miller considered it likely the plaintiff had aggravated pre-existing disease in the spine by his work, particularly in the period up to December 2005 and Mr Miller believed the effects persisted.
162 Mr Miller thought the plaintiff’s current conservative regime was appropriate and he would need to continue it indefinitely. He considered it was unlikely the plaintiff would benefit from surgical intervention.
163 Mr Miller thought the plaintiff was not fit for pre injury work or suitable for work involving repetitive bending, lifting, and lifting weights greater than 5 kilograms. He considered the plaintiff would have to have a requirement to shift his posture on a regular basis. In Mr Miller’s view, the plaintiff could not operate machinery that caused vibration and he considered the current sedentary type job was appropriate due to the plaintiff’s orthopaedic condition.
164 In Mr Miller’s view, the plaintiff could not return to his previous work on a significant basis, not even part time, and his injuries would have an impact on his domestic, gardening and recreational activities on an ongoing basis. He thought the plaintiff was at moderate risk of developing deteriorating symptoms later in life and the likelihood was that he would require ongoing conservative treatment.
Investigations
165 Dr Arambepola organised an x‑ray of the plaintiff’s thoracic spine on 6 December 2005. It was reported there was anterior wedge compression of at least twenty per cent.
166 Mr D’Urso organised an MRI scan of the plaintiff’s thoracic spine on 12 July 2007.
167 It was reported there was anterior wedging of the T10 and T11 vertebral bodies compatible with previous mild compression fractures. There was minor anterior wedging of T8 and T9 vertebral bodies to a lesser extent, which it was noted could be due to either also mild old compression fractures or developmental variation. There were multiple Schmorl’s nodes in the vertebral end plates at mid and lower thoracic levels, raising the possibility of Scheuermann’s Disease.
168 There was mild degenerative disc disease at the lower thoracic levels with small non compressive right paracentral disc protrusion at T9-10 and mild diffuse disc bulge at T10-11 causing minor indentation of the cord. There was no central canal stenosis, foraminal stenosis or nerve root compression demonstrated and no evidence of a recent fracture.
169 It was noted when comparison was made with the previous outside x‑rays of 6 December 2005, there had been no significant interval change in the appearance of the vertebrae.
170 A thoracolumbar radio frequency neurotomy was carried out by Dr Verrills on 5 September 2008.
The Defendants’ Evidence
171 In a worker’s claim form dated 24 December 1991, a strained upper back muscle from stacking and moving cartons of beer on 23 December 1991 was described. The employer’s claim report dated February 1992 set out injury in similar terms.
The Defendants’ Medical Evidence
172 Mr Seeman, endocrinologist, wrote to Dr Arambepola in early 2006. He noted the plaintiff appeared very well on examination but weighed one hundred and thirteen kilograms.
173 Mr Seeman noted investigations showed the plaintiff’s bone density was normal and the x‑rays showed no evidence of crush fractures. He thought the plaintiff suffered from chronic back pain and the x‑rays showed some narrowing of the discs which may be interpreted as appearing as wedge fracturing. Mr Seeman did not believe that was the case and he thought the key to treatment was clearly weight reduction.
174 In a subsequent report later than month, Mr Seeman withdrew his previous report, noting it was likely there were two wedge fractures in the mid thoracic zone which it was not possible to say were work related. He reported the plaintiff could not describe a precise event taking place, but it was nonetheless possible in Mr Seeman’s view the fractures were in some way related to the plaintiff’s work condition.
175 Mr Seeman confirmed all investigations were normal and that the plaintiff should lose weight. In the meantime he believed the plaintiff could return to light work.
176 On review on 27 April 2006, Mr Seeman noted the plaintiff’s biochemistry was improving off treatment and his cholesterol was coming down. He advised he would not resort to treatment if improvement continued.
177 Mr Ton, orthopaedic surgeon, reported to Slater and Gordon on 28 January 2007.
178 Mr Ton advised the plaintiff had attended his rooms on 19 June 2006 having been referred for opinion of his mid back pain and the association with compression fracture of the T9 vertebral body.
179 Mr Ton noted the plaintiff gradually developed mid back pain on a background of a long standing history of low back pain. The plaintiff had worked as a concreter with heavy work, presenting to his doctor in December 2005 with this complaint of pain and being diagnosed with the T9 compression fracture.
180 Clinical examination by Mr Ton revealed a normal gait and the thoracic spine had normal alignment. Movement was full and painless. Nerve root irritation was negative for straight leg raising. Femoral nerve stretch and hip joint was not irritable. Neurological examination was unremarkable.
181 Mr Ton noted the 2005 x‑ray.
182 Because of the chronicity of the plaintiff’s pain, Mr Ton organised a functional bone scan which failed to show any uptake of the isotope by the skeleton. Mr Ton noted this indicated there was no active bony pathology in the skeleton, so the fracture in the T9 vertebral body was old and was totally healed.
183 Mr Ton diagnosed chronic mechanical back pain from soft tissue strain and altered biomechanics of the thoracic spine due to an old compression fracture of the T9 body.
184 Noting physiotherapy and medication had been taken, Mr Ton thought the future treatment plan was to start on a spine stabilising exercise program, the aim of which was to improve the fitness and posture of the plaintiff’s spine in an effort to reduce the chance of recurrence of back injury and pain.
185 Mr Ton noted the plaintiff’s current symptoms were improved low back pain which was becoming less severe and infrequent. He thought the overall prognosis was excellent in the short and long term. However, he noted recurrences were very common.
186 Mr Ton thought in the longer term, back pain did have a high recurrence rate and the return to work program should be gradual and modified according to the plaintiff’s tolerance and endurance. He strongly advised a workplace assessment by an occupational therapist and modification accordingly.
187 Mr Ton wrote to Dr Arambepola on 19 June 2006 thanking her for the referral. He diagnosed mechanical back pain and advised a bone scan had been organised. He again wrote to Dr Arambepola on 12 July 2006 advising clinical examination was unchanged and no follow up appointment had been made.
188 At the request of QBE, an osteopathic report was prepared by Dr Biagini on 18 May 2010.
189 Dr Biagini thought the plaintiff’s current osteopathic treatment was not in line with the Clinical Framework because there was no graded exercise program in place. She thought psychosocial factors did not seem to have been adequately addressed, no functional treatment goals had been implemented and the plaintiff’s treatment was based primarily upon passive techniques.
190 Dr Biagini thought receiving acupuncture was unlikely to address any of these issues but rather likely to be counter productive. Although she thought the plaintiff’s treatment was then inappropriate, she did not believe it should be discontinued immediately, as that ran the risk of jeopardising his return to work. She considered the plaintiff’s ability to undertake activities of daily living was unlikely to be jeopardised by a cessation of treatment.
191 Dr Biagini suggested reduction and discontinuance of acupuncture, reduction of osteopathic treatment and a course of Pilates, in conjunction with an active exercise program.
192 Dr Kam, consultant radiologist, examined the thoracic spine x‑ray report of December 2005, the bone density scan of 9 December 2005, the whole body scan of 3 July 2006, and the MRI scan of the thoracic spine of 12 July 2007.
193 Dr Kam concluded the changes documented on the radiology reports and images did not show a definite cause for the plaintiff’s painful incapacitating condition.
194 Dr Kam thought there was mild thoracic spine degenerative change at the intervertebral discs and endplates. In his view, there was no significant facet joint degenerative change, although medial branch block injection did result in temporary symptom relief, but subsequent radio frequency neurotomy failed to provide long lasting relief.
195 Dr Kam noted, while the plaintiff appeared to have experienced thoracic spine and bilateral rib pain during the period of manual labour with the first defendant, there was no convincing evidence that the changes shown on the MRI scan were causally related to the plaintiff’s employment.
196 Dr Kam considered it was entirely possible that the degenerative changes shown on imaging of the plaintiff represented changes which had pre existed his period of work. Dr Kam thought the changes seen on film were compatible with mild spinal degeneration which could occur with age in the absence of any injury. He considered it also entirely possible the plaintiff’s symptoms were unrelated to the spinal changes shown on the bone scan and MRI scan.
197 Dr Kam commented, that based on published medical research, degenerative change in the spine was extremely common and that the causes thereof were numerous.
198 Dr David Barton, consultant occupational physician, examined the plaintiff on 27 March 2012.
199 The plaintiff then believed he was some thirty to forty per cent better because of acupuncture treatment. He described a band of pain extending across the lower thoracic region that varied as to which side was worse.
200 On examination, there was no paraspinal muscle spasm and there was normal contour of the spine. Specific examination of the thoracolumbar spine showed no particular area of tenderness to light palpation. Forward flexion was achieved to reaching the toes, while other back movements were over a near full range. Straight leg raising and neurological examination were normal.
201 Based on the diagnosis of symptoms related to compression of the thoracic vertebra, Dr Barton thought it difficult to see what osteopathic treatment and acupuncture was really doing. In this case, he thought the plaintiff needed more encouragement to self manage his problem with exercise rather than having period manipulation.
202 Dr Barton thought presumably the plaintiff had some persisting dysfunction following an accepted injury of the thoracic spine. Dr Barton considered there were no indications for surgery and he doubted that acupuncture and osteopathic treatment would alter the natural course of the plaintiff’s condition. He could see no reason why the plaintiff could not continue to work or engage in daily activities regardless of treatment. Dr Barton was unaware of any further treatment that would be required.
203 Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff on 5 April 2012.
204 On examination, the plaintiff presented with a round shouldered posture. Mr Kudelka noted the mid thoracic area was tender and the clinical picture was one of gradual kyphosis. Mr Kudelka found good mobility in the thoracolumbar spine with no evidence of neurovascular abnormality in the lower limbs.
205 Mr Kudelka noted the MRI scan of July 2007 which showed multiple wedging in the thoracic spine which he thought was due to adolescent Scheuermann’s Disease. He noted that there was no change in appearance from the December 2005 x‑rays.
206 In Mr Kudelka’s view, the plaintiff had a kyphotic deformity in the thoraco region of his spine clonally and radiologically which he diagnosed as adolescent Scheuermann’s Disease, a developmental abnormality which predisposed patients to back pain in the thoracic region. Mr Kudelka thought that had resulted in the plaintiff having multiple episodes of mechanical back strain significantly related to his demanding work, although he had had minor back strains when working in a supermarket.
207 Mr Kudelka noted the plaintiff had adjusted his employment accordingly and should be able to continue in the future.
208 Mr Kudelka thought the abnormal pathology was not related to the plaintiff’s employment in the causative sense, but any physically demanding work would aggravate and cause symptoms to arise from this not unusual mild adolescent deformity of thoracic kyphosis.
209 Mr Kudelka noted he had read Dr Kam’s report in which Dr Kam confirmed the diagnosis of developmental variation with associated degenerative changes but omitted to call the condition Scheuermann’s osteochondritis, which Mr Kudelka believed was the correct diagnosis.
210 Mr Kudelka thought the plaintiff’s condition was permanent and stabilised and that he could continue with administrative clerical duties indefinitely. He thought the plaintiff would benefit by losing weight and undergoing exercise and in those circumstances, he would probably be able to increase his hours to thirty eight per week.
211 Mr Kudelka thought the treatment required was core strengthening exercises under the initial supervision of a physiotherapist and he could see no value in osteopathic massage, which whilst comforting, was palliative and not curative.
212 Mr Kudelka noted the number of diagnoses suggested by various specialists showed how difficult it had been to agree with the aetiology of the plaintiff’s back pain. He noted that Dr Biddenback had suggested and encouraged Pilates and he strongly agreed with that advice.
213 In summary, Mr Kudelka concluded the plaintiff had aggravated a developmental condition while working for the first defendant, but in his view the aggravation had long subsided and there was no residual work related partial permanent impairment attributable to the period of employment with the first defendant.
Investigations
214 A whole body scan was carried out at Mr Ton’s request on 3 July 2006.
215 It was reported there was a negative bone scan for recent thoracic vertebral crush fracture or other active thoracic vertebral pathology, save for mild spondylosis. Further, it was reported appearances elsewhere were within normal limits with no scintigraphic evidence for skeletal metastatic disease.
Other Evidence
216 There were a series of photographs taken of the plaintiff mowing his lawn on a Sunday morning in September 2011.
217 On 12 July 2007, the plaintiff applied for the job of driver orderly ambulatory services with Bundoora Extended Care.
218 The plaintiff’s résumé set out from 2006 to 2007 he was engaged in home duties caring for three children with preparation of meals and housekeeping. He worked between 2001 to 2005 with the first defendant and from 1991 to 2004 with Grantham Green Aged Care Hostel as a night supervisor.
219 Between 1992 and 1993, the plaintiff travelled overseas and from 1988 to 1992 he worked at IGA. For the previous four years, he worked at Biz Buzz Hardware as a sales assistant.
220 The Northern Health job at Bundoora the plaintiff presently holds was advertised in March 2007 as a part time casual position.
Overview
221 I accept that the plaintiff suffered a compensable injury to his thoracolumbar spine during the period of employment.
222 I am mindful of the fact that the second defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
223 The plaintiff’s claim pursuant to Section 98C in relation to his thoracic spine was also accepted.
224 In terms of diagnosis, there was some debate as to whether a T8 fracture occurred during the period of employment, however, counsel for the plaintiff conceded that was probably not the case.
225 I accept that overall the medical evidence supports an aggravation of degenerative change in the thoracolumbar spine.
226 I need not concern myself with the view of Dr Kam as to the radiology, as it is not incumbent upon the plaintiff to establish by radiological evidence a link between his employment and subsequent investigation findings.
227 Further, in terms of the plaintiff’s condition, I do not accept the view of Mr Kudelka who stands alone in his opinion that any aggravation related to the plaintiff’s work has ceased.
228 In expressing such a view, a medical practitioner should give a cogent and detailed explanation as to the basis of his opinion. Mr Kudelka’s comments were very brief and he gave no explanation whatsoever of the time at which and the reason why he was of the view that Scheuermann's Disease or constitutional factors had overtaken the plaintiff’s work related condition.
229 In this case, where there is a pre existing back condition, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from work during the period of employment is serious and permanent.
230 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
231 The Court of Appeal recently approved this approach in AG Staff Pty Ltd v Filipowicz: Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60.
232 However, when one considers the evidence as to any previous back problem, it is obvious the plaintiff had no impairment in relation thereto at the time he commenced employment with the first defendant.
233 The plaintiff had had an incident in which he injured his spine in 1991 whilst lifting a carton of beer. He felt a sharp pain, perhaps lower in his back than his present pain, and for a while was on restricted duties but ultimately returned to normal supermarket duties requiring no time off work.
234 Prior to the period of employment, there is no evidence of ongoing spinal treatment, save for infrequent attendances at RMIT osteo where treatment was predominantly for the plaintiff’s hip, groin and buttocks.
235 The plaintiff was able to work without restriction in his hostel job during that period and required no medication.
236 In those circumstances I am not satisfied that there was an impairment in relation to the plaintiff’s back at the time he commenced employment with the first defendant.
Consequences
237 Considering first the plaintiff’s evidence in this regard, as Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
238 I found the plaintiff to be a truthful and credible witness who did not overstate the level of his pain and restriction.
239 In terms of other evidence as to the plaintiff’s credit, significantly, there was no comment by any doctor of the presence of any functional overlay, abnormal illness behaviour, exaggeration or inconsistencies on examination.
240 Further, the plaintiff’s evidence was supported by an affidavit from his wife Ingrid. Her evidence which confirmed the plaintiff’s level of pain and restriction was not challenged.
241 I accept that the plaintiff has persevered stoically with his life and work in the face of back pain. As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 4 that he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
242 The plaintiff at age forty five is still a relatively young man.
243 In Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, Ashley JA and Beach AJA, at paragraph 43, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
244 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was considered relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
245 I accept that during the period of employment and particularly since 2005, the plaintiff has experienced constant pain in his spine of varying degree affecting his sleep and daily activities.
246 The plaintiff has undergone a number of procedures including medial branch blocks and radio denervation with limited improvement in his condition. He continues to require osteopathic treatment and acupuncture on a regular basis.
247 The plaintiff continues to take over the counter and prescription medication on an ongoing basis, having to take such medication in bursts a couple of times a month when his pain is particularly bad.
248 The preponderance of medical opinion is that the plaintiff is no longer fit for heavy unrestricted manual work due to his back condition. He has a capacity for light work which he is presently exercising.
249 I do not accept that the plaintiff presently works limited hours at Bundoora out of choice and to fit in conveniently with his lifestyle. In my view, had he not injured his back, the plaintiff would have continued to work full time in manual work.
250 I do not accept the plaintiff made a lifestyle choice to become a home husband and look after his children. This was not his intention at the time their young daughter, Lily, was born in 2005 and had only become necessary when the plaintiff was unable to continue in his old job and do any particularly heavy work after injury.
251 I found the plaintiff’s answer particularly candid when he said he did not know whether he could deal with his current duties at Bundoora on a full time basis, but he thought he would be sore at times and also unreliable in terms of full time attendance.
252 I also accept that there has been a significant interference with the plaintiff’s sporting activities as a result of his back pain.
253 Clearly before suffering injury the plaintiff loved game fishing, an interest he still maintains but to a much more limited extent. He has found with his back condition that it is not worth the level of pain and exertion to continue fishing to anywhere near the level he previously enjoyed.
254 Whilst the plaintiff still does gardening and tasks around the house, he does so with pain. He is able to do simple household tasks but has to pace out activities such as gardening and lawn mowing. At times he is unable to do the meal preparation without taking as a break as his wife confirmed.
255 I accept because of his back condition the plaintiff is restricted in his ability to play freely with his seven year old daughter.
256 As the plaintiff’s condition has persisted in excess of seven years without significant improvement, in my view his condition is likely to continue into the foreseeable future.
257 Taking into account all the evidence, I am satisfied that the plaintiff suffered a serious injury to his thoracolumbar spine during the course of his employment with the first defendant.
258 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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