Izak v Hopin Pty Ltd
[2014] VCC 434
•11 April 2014
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03626
| ROBERT IZAK | Plaintiff |
| v | |
| HOPIN PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March and 1 April 2014 | |
DATE OF JUDGMENT: | 11 April 2014 | |
CASE MAY BE CITED AS: | Izak v Hopin Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 434 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back – whether aggravated by other incidents – whether the pain and suffering consequences were caused by the initial injury – whether the pain and suffering consequences of the injury were “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Judgment: Leave granted to the plaintiff to bring a proceeding at common law to recover damages for injuries for pain and suffering arising out of his employment with the first defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J M Forbes | Slater & Gordon |
| For the Defendants | Ms A M Magee | Lander & Rogers |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 26 June 2012, the plaintiff seeks an order that he be given leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring a proceeding at common law to recover damages for injuries which he suffered on 25 April 2003.
2 The plaintiff submitted that he has suffered a permanent serious impairment or loss of the function of his lower back.
3 Ms J Forbes of Counsel appeared for the plaintiff. Ms A Magee of Counsel appeared for the defendants.
4 The following evidence was adduced at the trial of the proceeding:
· the plaintiff gave evidence and was cross-examined.
· the plaintiff tendered his Court Book (“PCB”), pages 10-55 and 61-91: Exhibit A.
· the defendants tendered their Court Book (“DCB”), pages 1-3; 6-12; 17-19; 29-39, and 47-60: Exhibit 1.
The Plaintiff’s injury
5 The plaintiff trained as a chef. He commenced employment with the first defendant in that capacity. On 25 April 2003, he lifted a 20-litre drum of oil, with the result that he developed pain in his lower back and pain in his left leg (“the incident”).
The medical evidence
6 The plaintiff swore an affidavit on 7 March 2012, and a supplementary affidavit on 25 February 2014. Both affidavits are relatively brief in their description of the medical treatment which the plaintiff obtained for the injury to his lower back, and also with respect to a number of other medical conditions which the defendants submitted are the cause, or part of the cause, of the consequences which the plaintiff submits have resulted from the injury to his lower back.
7 The plaintiff was taken from the first defendant’s place of work to the Sunshine Hospital on the day of the occurrence of the incident. In a report from the hospital dated 25 April 2003 addressed to Dr Saratchandran,[1] the attending medical practitioner described the plaintiff’s presenting problem as follows:
“… The presenting problem was SHARP PAIN RADIATING DOWN L) LEG AFTER LIFTING 20 L OIL DRUM.”[2]
[1]PCB 17
[2]PCB 17
8 The diagnosis made was, curiously:
“The diagnosis was LOIN PAIN / LOW BACK PAIN / LOW BACK STRAIN / LUMBAGO.”[3]
[3]PCB 17
9 The attending medical practitioner made a note that the plaintiff reported that he suffered the injury to his lower back whilst lifting at work. It was noted that the pain experienced by the plaintiff was to the left side of his lower back, radiating down into his left leg. On examination, no neurological deficit was found, but straight leg raising was limited to 60 degrees on the right and 40 degrees on the left, and movements of the spine were noted to be limited by pain.
10 The plaintiff was treated at the hospital. He was given non-steroidal anti-inflammatory medication and Diazepam, which settled his pain. He was discharged with Panadeine Forte and Diazepam. The letter to Dr Saratchandran suggested that the plaintiff be referred to have physiotherapy.
11 The plaintiff first saw Dr K P Saratchandran, general practitioner, on 28 April 2003. On that occasion, he told Dr Saratchandran that he was injured when lifting a 20-kilogram oil drum at work, which resulted in him developing radiating pain, shooting into his left leg, down and into his anterior thigh and calf. On examination, Dr Saratchandran noted that the plaintiff had limitation of straight leg raising on both sides and had local tenderness around L3-4.[4]
[4]PCB 25
12 Dr Saratchandran referred the plaintiff to have an x-ray which was taken on 30 April 2003. The radiologist identified a number of abnormalities. One of those abnormalities was a narrowing anteriorly of the L4-5 disc space.[5] Dr Saratchandran referred the plaintiff to have a CT scan, which was taken on 13 June 2003. The radiologist identified that there was a mild central and left lateral disc bulge which might have been compressing the nerve in the left neural exit foramen. He also noted that there was facetal and ligamentum flavum hypertrophy with some narrowing of the vertebral canal.[6]
[5]PCB 18
[6]PCB 19
13 The plaintiff reported to Dr Saratchandran that he was waking in pain. It would appear that it was the complaint which precipitated Dr Saratchandran referring the plaintiff to have the CT scan. It would appear that the plaintiff was off work for some time. He commenced a graduated return to work on 20 May 2003. According to Dr Saratchandran, he considered that the plaintiff was fit for work by 7 October 2003, and he noted that the plaintiff “continued to work” except for about a week off work from 20 October 2003 because of anxiety.[7]
[7]PCB 11 and 25-26
14 Mr Shutz, surgeon, examined the plaintiff on 17 June 2003 at the request of Allianz Australia Workers’ Compensation (Victoria) Ltd. According to the history he obtained from the plaintiff, it would appear that the plaintiff was off work for about two and a half weeks before he commenced a graduated return to work, working four hours per day, five days per week; however, for some time he was unable to work. He told Mr Shutz that he had probably only worked 8 to 16 hours in the previous two weeks. He also told him that he was using medication for pain relief and was to commence physiotherapy treatment.
15 On examination, Mr Shutz found limitation of movement, except on left lateral flexion. He noted that all movements increased symptoms of pain in the left buttock, but at the same time remarked that there were no radiating symptoms elicited on movements during his examination. I do not understand what that means, however, he concluded that his examination did not demonstrate any nerve root irritation.
16 Mr Shutz was of the opinion that the plaintiff had probably suffered an injury at the L4-5 level with left L5 nerve root symptoms which he described as a minor disc injury with no prolapse, and with possible nerve irritation due to inflammation of the nerve rather than compression. He considered that the plaintiff was not fit for the full range of his normal duties as a chef. He considered that the plaintiff had not recovered sufficiently to return to work, but he noted that the plaintiff had in fact returned to work. He then said that if the plaintiff was to remain at work he should be subject to a lifting limit of 2 to 3 kilograms and not the 10-kilogram lifting limit that had been recommended. He added that he considered that the plaintiff needed more time off work, and suggested another 4-8 weeks. The recommendations made by Mr Shutz were made in the context of a return to work plan which he must have been provided.[8]
[8]DCB 6-12
17 It is not clear to me who recommended that the plaintiff return to work, and who recommended the lifting limit of 10 kilograms. I assume that it was Dr Saratchandran. I make that assumption because there is no reference to any other medical practitioner who had treated the plaintiff between Dr Saratchandran taking up his treatment and the date upon which Mr Shutz examined him.
18 The plaintiff was referred to Cedar Court, where he engaged in a five-week interdisciplinary rehabilitation program which commenced on 4 September 2003. The plaintiff's functional strength and functional tolerances were tested. He was given rehabilitation. He reported improvement in his lower back and leg pain, and he was able to reduce his weight. A discharge conference was conducted on 6 November 2003, attended by the plaintiff, Dr Saratchandran and representatives of the first defendant. It would appear that it was organised for the plaintiff to return to work on 3 November 2003 with a view to him increasing his hours of work from four hours per day three days per week to 40 hours per week.[9]
[9]PCB 22-24
19 Neither the plaintiff’s affidavit nor any of the medical reports make it clear what the plaintiff's working habit was from 3 November 2003. However, what is clear is that on 16 December 2003, the plaintiff was involved in a further incident. The circumstances of its occurrence are set out in a WorkCover Worker’s Claim Form lodged by the plaintiff and dated 20 December 2003. The plaintiff described the incident as one where he picked up an oil container from which oil had been leaking due to a faulty nozzle. He slipped on a spillage of oil and turned awkwardly, which resulted in him suffering pain in his lower back.[10]
[10]DCB 1-3
20 The plaintiff saw Dr Saratchandran on 16 December 2003. Dr Saratchandran described that attendance as follows:
“With another accident of lifting an oil drum he came to see me on 16/12/03 and there was neurological deficient (sic) and no serious injury was suspected. He was treated with ice packs analgesics anti-inflammatories and uneventfully he had recovered from the accident. …”[11]
[11]PCB 26
21 Under cross-examination, the plaintiff was referred to a history recorded by Mr Carfi, psychologist and rehabilitation consultant. The plaintiff saw him on 5 February 2004. The purpose of the consultation was part of the plaintiff’s rehabilitation organised by Allianz Australia Workers’ Compensation (Victoria) Ltd. Mr Carfi recorded the following:
“… while participating in a return to work program in September 2003 he aggravated his back condition while again lifting 20-litre drum of oil. Mr Izak stated that the tap on the drum broke spilling oil on the floor which he subsequently slipped on and jarred his back as a consequence of the fall.”[12]
[12]DCB 32. The reference to September 2003 must be read as December 2003.
22 Under further cross-examination,[13] the plaintiff was cross-examined on the basis that what occurred on 16 December 2003 constituted aggravation of his pre-existing lower back injury. He was asked whether his lower back pain was worsened by the incident and his answer was that it was pretty much the same. It was put to him that he was absent from the workplace for a few days before being able to return to work, and then returned to work. He said he was not sure, but he said that he would probably agree with that proposition.[14]
[13]Transcript 12-15
[14]Transcript 15
23 It would appear that the plaintiff continued working from December 2003. It would also appear that his capacity to work was interrupted by further pain and incapacity which he experienced in early 2004.
24 The plaintiff saw Dr Saratchandran on 21 January 2004 and again on 14 February 2004 because he had suffered further pain and incapacity. Dr Saratchandran described the plaintiff’s attendances on him as follows:
“… Once again the patient came back on the 21/01/04 with the aggravated pain of the back and he was put on modified duties of reduced working hours starting with a few days of unfit certificate. He was referred to a Physiotherapist, he required continuation of depression treatment and prescriptions were given.
On 14/02/04 he again returned with aggravation and needed a week’s rest while he was receiving physiotherapy and this was followed up with limited hours of work. At the point GUS Carfi Return to Work Plan got involved and he was engaged in a Return to Work Program. He needed another course of acupuncture for symptom control. Slowly but surely he had improved and he was given a certificate for modified duties after 22/05/05 he had not returned to any further consultation after that date. My inference is that he had returned to his normal duties.”[15]
[15]PCB 26
25 Under cross-examination, much was made of Dr Saratchandran’s use of the words “aggravated” and “aggravation” on the footing that what Dr Saratchandran intended to do was to expressly describe an incident of trauma, and not a flare-up of pain. The plaintiff did not deny that he was having some difficulty with his lower back in early 2004. However, his memory of that period was vague, and understandably so, considering that he was being cross-examined on events which occurred ten years ago.[16] I will return to this subject later when I summarise the manner in which the plaintiff and the defendant put their respective cases.
[16]Transcript 15-17
26 The plaintiff said that he was in receipt of weekly payment of compensation at various rates until his entitlement to those payments ceased in June 2005. There is no issue that those payments were made for the injury suffered by the plaintiff to his lower back as a result of the incident.
27 Around this time, that is, 2004, and going into 2005, the plaintiff was examined by Mr Jones, orthopaedic surgeon, on 28 October 2004. Mr Jones considered that the plaintiff had suffered a lumbo-sacral disc injury, and was suffering from some sciatica. He considered that the plaintiff was unfit for work as a hotel chef, but had a capacity for suitable employment.[17]
[17]PCB 46-48
28 Under cross-examination, the plaintiff was taken to a questionnaire completed by Dr Saratchandran dated 11 October 2010 for the benefit of the plaintiff, who was applying for life insurance from ING Life Limited.[18] In particular, he was taken to Questions 1 to 12. Dr Saratchandran referred to the plaintiff’s lower back injury, and to medical conditions affecting the plaintiff’s rib joints and left knee. He referred to the lower back condition having occurred on 25 March 2003. He referred to "the condition" as being caused by the plaintiff's occupation as a chef; however, it is not clear to me whether "the condition" refers to the lower back or to the collection of medical conditions which he initially referred to in answer to Question 1.
[18]DCB 47-53
29 The critically important parts of the questionnaire are the answers which Dr Saratchandran gave to Questions 9, 10, 11 and 12. In answer to Question 9, he said that the time which the plaintiff had off work was from 28 April 2003 to 30 August 2003. In answer to Question 10, he described the medical condition as resulting in recurring episodes and, I assume, pain and time off work. In answer to Question 11, he said that the plaintiff had recovered as and from 26 June 2005 and, in answer to Question 12, he considered that the plaintiff would be able to continue in his current occupation.
30 Under cross-examination, it was put to the plaintiff that when one looked at what can be made of Dr Saratchandran’s description of the plaintiff’s lower back injury resulting from the incident, the aggravation of 16 December 2003 and the questionnaire with reference to the plaintiff recovering from 26 June 2005, coincides with the cessation of the plaintiff’s receipt of weekly payment of compensation. I will return to this subject later in these reasons.
31 There was some debate about what medical treatment the plaintiff obtained from Dr Saratchandran from about May 2005, which is the last date referred to in his report dated 12 August 2011.[19] His report dated 24 February 2014 is exquisitely short and barely edifying, and to some degree confusing. He said:
“This Patient has ceased seeing me for Workcare related claims since 2008. Although he gets episodic back pains related to his day to day living and working and he receives analgesics in an episodic manner from me, I do not know to what extent it relates to his past back injury and the claim he had. I am sorry I could not be more helpful in giving a more precise report on this matter.”[20]
[19]PCB 26
[20]PCB 27
32 Ms Forbes and Ms Magee submitted that I should give different interpretations to what I have quoted from Dr Saratchandran’s report. It appears to me that what Dr Saratchandran was saying is that whatever connection the plaintiff’s treatment had with WorkCare, it had ceased in 2008, but not his treatment of the plaintiff. It is clear that he considered that the plaintiff was suffering episodic back pain resulting from his non-working and working activities, for which he prescribed him analgesic medication. That treatment continued after 2008.
33 Under cross-examination, it was put to the plaintiff that, in Dr Saratchandran’s report dated 12 August 2011,[21] Dr Saratchandran said that the plaintiff did not return to see him after 22 May 2005, although that seems to be contradicted by what he said in his report dated 24 February 2014. The plaintiff explained that Dr Saratchandran had two methods of recording consultations. If they were for WorkCare, he recorded the substance of the consultation in one set of notes, and for any other consultations he recorded the substance of the consultation in another set of notes.[22]
[21]PCB 25-26
[22]Transcript 18
34 What is clear to me is that Dr Saratchandran’s reports are very unsatisfactory. They are not composed consistently with medical reports that I am accustomed to reading, in which the reporting medical practitioner sets out the history of consultations in chronological order. I think the only way I can read the two reports is to conclude that the plaintiff saw Dr Saratchandran for treatment for a lower back injury which the plaintiff attributed to the incident, and he consulted him on the basis that it was a WorkCare claim until 2008. However, Dr Saratchandran formed the opinion that the treatment he provided the plaintiff thereafter for his lower back injury was not related to the incident. Unfortunately, the two reports contain inherent contradictions, but I think they are capable of being rationalised, as I have undertaken.
35 The plaintiff has suffered from a number of other medical conditions which I will refer to in a little detail later in these reasons. Essentially, he developed cardiovascular problems, for which he was treated by Dr David Rollo, cardiologist. He commenced seeing Dr Rollo in about 1999.[23] In a report dated 24 February 2014,[24] Dr Rollo recorded that the plaintiff told him that he was suffering from lower back pain. He did not tell Dr Rollo that he had suffered an injury to his lower back as a result of the incident. The plaintiff asked Dr Rollo for a prescription of Panadeine Forte to treat his lower back pain. Dr Rollo obliged, and has been providing him with prescriptions for that medication since 2007. He gave him such a prescription as recently as 5 February 2014.[25]
[23]Transcript 26
[24]PCB 28
[25]PCB 28
36 Under cross-examination, it was put to the plaintiff that he must have suffered some further injury in April 2011 because he returned to see Dr Saratchandran on 12 April 2011. Dr Saratchandran recorded that the plaintiff consulted him with an aggravation from which he had been suffering for about a month. He consulted Dr Saratchandran because his attempts at self management of that so-called aggravation were not successful. Dr Saratchandran reviewed the plaintiff on 7 May 2011. On that occasion, he referred the plaintiff to have an MRI scan, which was taken on 10 May 2011. The conclusions reached by the radiologist are as follows:
“1 Mild to moderate L4/5 lumbar canal stenosis secondary to a central L4/5 disc prolapse. Impingement of the left L5 nerve root within the left lateral recess is noted.
2Mild to moderate L5/S1 lumbar canal stenosis is noted, secondary to a central L5/S1 disc prolapse. Impingement of both S1 nerve roots within both lateral recesses is noted.
3Mild to moderate bilateral L4/5 and bilateral L5/S1 facet joint … osteoarthritis. CT guided facet joint steroid injections may be of therapeutic benefit.”[26]
[26]PCB 20
37 A comparison between the MRI scan and the CT scan taken on 13 June 2003 are similar, to the extent that both demonstrate a discal abnormality at L4-5 and some involvement of the L5 nerve root.
38 Dr Saratchandran referred the plaintiff to have a CT-guided facet joint injection, which the plaintiff underwent on 21 June 2011.[27] The plaintiff obviously returned to see Dr Saratchandran after he had the facet joint injection, because Dr Saratchandran recorded that the plaintiff told him that he had experienced some improvement, but his symptoms were fluctuating. Dr Saratchandran advised the plaintiff to undertake rehabilitation exercises and weight reduction. He noted that the plaintiff had taken up swimming and was undertaking rehabilitation exercises. So, when the foregoing is added into the picture of the treatment provided by Dr Saratchandran, it is clear that the plaintiff continued to be treated by him after 2008.
[27]PCB 21
39 Under cross-examination, the plaintiff was asked about the circumstances which saw him attend Dr Saratchandran on 12 April 2011. He said in about March 2011, he was doing no more than bending over and moving some little trays which appear to have contained fish food. He spilled some on the floor. He vacuumed the area of the spill. It was later in the day that he was met with very serious pain in his lower back. The pain was so severe that he was bedridden the following day.[28] The plaintiff said that he was not sure how he aggravated the condition of his lower back.[29]
[28]Transcript 53-54
[29]Transcript 56-57
40 Under re-examination, the plaintiff put the so-called fish tank incident into some perspective. He said that what he was doing in connection with the fish tank was no different from what he would ordinarily do when undertaking domestic tasks in his home.[30]
[30]Transcript 58
41 Dr Elder, consultant in occupational and environmental medicine, examined the plaintiff on 19 August 2011. He was provided with information that the plaintiff had suffered injury to his lower back as a result of the incident on 16 December 2003. Dr Elder had the MRI scan at the time when he examined the plaintiff. On the basis of the plaintiff’s history and what he described as “contemporaneous documentation”, and no doubt also on the basis of his examination of the plaintiff, he concluded that all of the impairment suffered by the plaintiff was due to the lower back injury which the plaintiff suffered in the incident. He did not believe that any impairment could be attributed to what occurred on 16 December 2003.[31]
[31]DCB 50-53
Conclusions
42 I think it is just as well to deal with a number of issues raised by Ms Magee at this point, now that I have summarised the medical evidence.
43 I find that the plaintiff suffered an injury to his lower back as a result of the incident, and that the consequences of the impairment of function of his lower back is, at least in part, caused by the injury the plaintiff suffered in the incident. The following evidence clearly demonstrates that:
· The history recorded by the attending medical practitioner at the Sunshine Hospital demonstrates that the plaintiff not only had pain in his lower back but also pain in his left leg. The differential diagnosis involved a lower back strain.
· The history recorded by Dr Saratchandran on 28 April 2003 demonstrates that the plaintiff was suffering pain in his lower back and a shooting pain down his left leg into his anterior thigh and calf.
· The pain experienced by the plaintiff appears to have been moderately severe because it was waking him from his sleep. It was approximately around the time when that complaint was made, that Dr Saratchandran referred the plaintiff to have a CT scan.
· Mr Shutz examined the plaintiff on 17 June 2003. It is very clear that he considered that the plaintiff had returned to work prematurely. He considered that the plaintiff had probably suffered an injury at the L4-5 level with the left L5 nerve root symptoms consistent with a minor disc injury and possible nerve irritation. He considered that the plaintiff should return to work under the regime which I have summarised above. Mr Shutz’s opinion is confirmed by the report of Cedar Court, which demonstrates that the plaintiff needed a graduated return to work because of the incapacity for work caused by his lower back injury.
· Mr Jones examined the plaintiff on 28 October 2004. His opinion is consistent with the opinion of Mr Shutz, that the plaintiff had suffered a discal injury with some sciatica.
· I accept the plaintiff's evidence that he was having serious difficulty in undertaking the light duties provided by the first defendant.
· I accept the plaintiff's evidence that he was never without the lower back pain which commenced at the time of the occurrence of the incident.
· Dr Saratchandran was providing the plaintiff with active treatment in 2004. I do not accept that what occurred in January and February 2004 constitutes aggravations of the plaintiff’s lower back injury, in the sense of some traumatic incident which caused further damage to the plaintiff’s already damaged lower back. What occurred in January and February 2004 appear to me to be fluctuations in the condition of the plaintiff's lower back.
· It is unclear to me what treatment the plaintiff had from 2005 to 2007. The plaintiff said that he was having acupuncture provided by Dr Saratchandran, chiropractic treatment and self managing in the years between 2005 and 2011.[32] However, I accept that the plaintiff had an actively symptomatic lower back, because in 2007, he told Dr Rollo that he was suffering from lower back pain. Dr Rollo obliged the plaintiff by providing him with prescriptions for Panadeine Forte, and has continued to do so. I accept the plaintiff's evidence the he presently takes up to eight Panadeine Forte per day.
· Dr Elder knew of the incident and also what occurred on 16 December 2003. It would appear that he had little hesitation in attributing the impairment of the function of the plaintiff's lower back to the incident.
[32]Transcript 66
44 The evidence which doubts the causal connection of the impairment of the function of the plaintiff’s lower back and the incident comes from Dr Saratchandran. In his report dated 12 August 2011, he said:
“It is unclear if his present symptoms are related to the old accident or not. Any opinion in this matter is a debatable point. With the past history he has, I am inclined to believe that he would be vulnerable for episodic back problem[s] more than a[n] an injured person. One has to take into consideration of progression of age, and other co morbidities in the discussion as well.”
45 The foregoing opinion is confusing. Firstly, Dr Saratchandran refers to the “old accident”, suggesting that there were other accidents, but he has not referred to any except to the so-called aggravations which I will deal with again shortly. Secondly, he refers to the plaintiff being more vulnerable to episodic back problems. The only vulnerability created in the plaintiff is the lower back injury the plaintiff suffered as a result of the incident. If some other cause created the vulnerability, then Dr Saratchandran does not state what that is. Thirdly, the other considerations are merely referred to without being explained. It is a very unsatisfactory opinion and almost wholly unhelpful and unreliable.
46 I now return to the questionnaire completed by Dr Saratchandran. It appears to me that it is at serious odds with the chronology of the evidence which I have summarised above. Furthermore, I am not entirely convinced that it should be taken at face value. If Dr Saratchandran was of the opinion that the plaintiff had recovered from his lower back injury, then that is not borne out by his last stated opinion as at 12 August 2011, when he composed his first report, that the question of causation was “debatable” not closed. How can something continue to be debatable yet in the questionnaire, causation has that extinguished. Yet again, confusion created by Dr Saratchandran.
47 Similarly, the history taken by Mr Carfi that the plaintiff told him that what occurred on 16 December 2003 created a worsening of the condition of his lower back is inconsistent with the plaintiff's evidence that it did not create a worsening, and is it is consistent with the evidence of Dr Elder who, it would appear, had sufficient documentation to be able to confidently offer an opinion that what occurred on 16 December 2003 is of little consequence.
48 I do not accept that what occurred on 16 December 2003 is of any real consequence for the reasons I think I have made apparent above. Furthermore, it is disquieting that Dr Saratchandran has failed to provide reports consistent with the reports which I have read from the many medical practitioners. Dr Sarathchandran’s two reports and the ING questionnaire have created unnecessary confusion. I am not prepared to place a great deal of weight on his use of the word “aggravated” and “aggravation”. He did not set out the basis for the use of those words if they were intended to denote a discrete incident resulting in further damage to the plaintiff’s lower back. I think his use of those words was in a different context, and that is, to denote increased symptoms, not a further injury.
49 On the basis that Dr Elder is correct in concluding that what occurred on 16 December 2003 is a little consequence, and that Dr Saratchandran’s use of the word “aggravated” and “aggravation” were not intended to mean what the law takes those words to mean, then the opinions of Dr Sutcliffe, occupational physician, and Mr Kossmann, orthopaedic surgeon do not deserve the criticism levelled at them.
50 Dr Sutcliffe examined the plaintiff on 28 September 2011, and before the plaintiff returned to his present occupation as a chef. Her opinion regarding the plaintiff’s employability is now of no relevance, but what is important is the diagnosis she made that the plaintiff had suffered a lumbar and lumbosacral disc derangement at L4-5 at L5-S1. She had the reports of the CT scan and the MRI scan at the time she examined the plaintiff.[33]
[33]PCB 30-38
51 Mr Kossmann examined the plaintiff in February 2014, and after the plaintiff returned to his present occupation as a chef. He was of the opinion that the plaintiff had suffered discogenic and mechanical back pain based on L4-5 and L5-S1 central disc prolapses, with impingement of the S1 nerve root bilaterally, and bilateral L4-5 and L5-S1 facet joint osteoarthritis. He was of the opinion that the plaintiff was managing his employment as a head chef well, and by inference, considered that he was capable of working 25 to 30 hours per week. He recommended that the plaintiff avoid excessive axial skeletal rotation, repetitive bending and that he restrict his lifting to no more than 5 kilograms.[34]
[34]PCB 39-45
52 Both Dr Sutcliffe and Mr Kossmann considered that the injury to the plaintiff’s lower back is causally related to the incident.
Pain and suffering consequences
53 In summary, the consequences which the plaintiff says have resulted from the injury to his lower back are as follows:
· There have not been any periods of time since the incident where he has not been without back pain.[35]
[35]Transcript 60
· He last worked with the first defendant in 2004 or 2005. On his return to work after some period of absence, he was put onto light duties. His return onto light duties did not go very well because the work he was performing was causing him more pain in his lower back.[36]
[36]Transcript 60-61
· It would appear that he has been prescribed medication by Dr Saratchandran for pain relief. I refer to my attempts at rationalising Dr Saratchandran’s reports above. Certainly, he has been in receipt of Panadeine Forte prescribed by Dr Rollo since 2007 specifically for lower back pain.
· The plaintiff's level of incapacity is, to some extent, demonstrated by the fact that his capacity for work was interrupted from time to time between the date of the occurrence of the incident and June 2005, because it was during that period that he was in receipt of WorkCover payments.
· The plaintiff was an active person before he suffered the back injury. He played tennis up to 2001. He was training to obtain a pilot’s licence. He was accustomed to going fishing, camping, boating and jet skiing. He was able to undertake domestic activities in his home and garden. He is unable to continue the pursuit of obtaining a pilot’s licence.[37] His fishing trips are reduced to about once a year.[38] He does not go camping, boating or jet skiing. When he mows his lawns, for example, he can suffer intense pain for a few days.[39]
[37]Transcript 76
[38]Transcript 73-74
[39]Transcript 75
· The plaintiff is able to work at the Witchmount Winery as the head chef. He is the only chef employed and has between two and four kitchen assistants, depending on the size of the occasion requiring catering. The impression I gained from the plaintiff’s evidence is that when there is an occasion requiring catering, he is involved in preparation for part of two days preceding the occasion and then is required to be in the kitchen during the whole of the time that the occasion requires the preparation and service of food. He takes Panadeine Forte for pain relief, and invariably takes two in the morning, and then further medication during the day, and as many as eight per day.
· On occasions when the plaintiff is undertaking preparation work as a chef, which might take the whole day, he has a capacity to stand for four to five hours at a time before he needs to obtain relief from the pain that increases during the period that he is standing. He takes medication to relieve the pain, and sitting down gives him some relief as well.[40]
[40]Transcript 52-53
54 I accept the plaintiff’s evidence that he experiences each of the consequences which I have summarised above. What is apparent from those consequences is that they affect nearly every aspect of the plaintiff’s life from his mobility to his capacity to engage in domestic, recreational and vocational activities. It occurs to me that since the occurrence of the incident, the plaintiff has suffered a major impact on all those aspects of his life, and that degree of the impact persists.
55 The plaintiff is fortunate, in a sense that his working week varies significantly. He is paid whether there is an occasion requiring his services as a chef or not. Whilst he is able to undertake his work, he cannot work without taking a large volume of Panadeine Forte each day, and needing to relieve the pain by not only taking that medication, but also by sitting to gain relief from pain. I do not consider that the fact that the plaintiff is able to work derogates from the seriousness of the consequences he experiences. The plaintiff struck me as being a stoic. He impressed me with a desire to work in spite of the pain that he has experienced and continues to experience. I am fortified in reaching that conclusion because of the evidence of that is his earlier return to work was considered by Mr Shutz to be premature, and required a reassessment of a return to work plan after he underwent rehabilitation.
56 The latter observation takes me to the plaintiff’s creditworthiness and reliability. The plaintiff gave his evidence in uncomplicated fashion. He answered questions responsively. If he did not understand, he asked for the question to be repeated, and then did the best he could to give a responsive answer. I do not accept the criticism made of him that he was other than a creditworthy and reliable witness. That takes me to the criticism made of his affidavits. It was submitted that the plaintiff has not included references to the flare-ups which he reported to Dr Saratchandran. I consider the plaintiff’s answer to that criticism was well stated, and that is, to incorporate every occasion when he has suffered more severe pain would be to turn his affidavit into something like an encyclopaedia. Whilst I think his affidavits are rather brief, and could have been a little bit more expansive, I do not consider that the criticism of him is warranted.
57 After having considered the plaintiff’s evidence, the evidence which was tendered from the Court Books, and the matters raised in addresses by Ms Forbes and Mr Magee, I consider that the plaintiff has suffered pain and suffering consequences which satisfy the statutory test that the plaintiff has suffered a permanent serious impairment of the function of his lower back.
Orders
58 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising out of his employment with the first defendant.
59 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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