Jakovljevic v Toyota Motor Corporation Australia Limited
[2015] VCC 1070
•12 August 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-02543
| DRAGOLJUB JAKOVLJEVIC | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED (ACN 009 686 097) | Defendant |
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JUDGE: | HER HONOUR JUDGE BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 August 2015 | |
DATE OF JUDGMENT: | 12 August 2015 | |
CASE MAY BE CITED AS: | Jakovljevic v Toyota Motor Corporation Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1070 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (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; Ansett Australia Ltd v Taylor [2006] VSCA 171; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Richards v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 12
Judgment: Leave granted to the plaintiff to bring proceedings for both loss of earning capacity and pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Mr P G Hamilton | Zaparas Lawyers |
| For the Defendant | Mr D Masel SC with Mr I Gourlay | Minter Ellison Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant from about September 2003 until about 30 September 2010 and, in particular, on that date (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” 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 lumbar spine.
5 This application was previously adjourned to allow the plaintiff to add a clause (c) application for psychiatric impairment. However, this additional application was not addressed by counsel for the plaintiff in closing, after I indicated the application was not particularly strong.[1]
[1]Transcript (“T”) 86
6 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.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable”.
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 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
14 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
16 The plaintiff relied upon three affidavits and gave viva voce evidence. He was cross-examined. 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
17 The plaintiff is presently aged fifty-three, having been born in Serbia in August 1960. He separated from his wife in February 2012 and has two adult sons.
18 The plaintiff migrated to Australia at the age of thirty-six. His English literacy skills are not good.
19 After completing high school in Serbia, the plaintiff undertook fifteen months of army service. He then worked manufacturing telecommunication cables for about fifteen years.
20 When the plaintiff first came to Australia, he worked at Gilbertsons meat factory for about two years and then for about five years as a machine operator at National Forge Operations.
21 The plaintiff commenced employment with the defendant in early September 2013 as an Engine Team member working in motor vehicle parts and accessories. His duties were fulltime and he worked varying amounts of overtime. He earned a weekly wage of about $1,024 gross, in addition to overtime. He had intended to continue in employment until aged sixty-five.
22
The plaintiff had an episode of low back pain in 1999, following which he underwent investigations, saw his general practitioner and was off work for about three weeks. He continued modified duties, with an improvement in his lower back symptoms, and in January 2000, re-commenced
pre-injury duties fulltime. Over the following years, the plaintiff experienced occasional lower back pain which did not affect his activities or work.
23 The plaintiff’s work duties with the defendant included repetitive pushing and pulling and manual handling of different parts along a conveyor belt into machines which required repetitive stooping, bending forward, twisting and prolonged standing. He also did a lot of walking between machines (“the work duties”).
24 On the said date, the plaintiff noticed increasing lower back pain symptoms which worsened significantly. After about three hours at work, he was in a great deal of pain and could not keeping going. He notified his team leader and eventually saw the company doctor, Dr Farmer, who referred him for physiotherapy.
25 In about late July 2010, the plaintiff noticed gradually increasing lower back pain with referred left leg pain. The symptoms gradually resolved, however, in August 2010, lower back pain returned and the plaintiff also felt referred left leg pain to the foot. He took about a week off work on annual leave, but on his return to work, his symptoms continued and gradually worsened.
26 The plaintiff had an MRI scan of his lower back in October 2010. A few weeks later, he saw general practitioner, Dr Andrianakis, due to his ongoing pain. At that stage, the plaintiff was also having physiotherapy and attending the pool daily. His lower back and referred symptoms continued and he experienced difficulty with prolonged postures. Dr Andrianakis referred the plaintiff to Mr Barrett, an orthopaedic surgeon.
27 In December 2010, Mr Barrett discussed the prospect of lower back surgery with the plaintiff but he was scared to have surgery due to the risks, and he wanted to try conservative treatment instead.
28 That month, the plaintiff also attended Mr D’Urso, neurosurgeon, on referral from Dr Andrianakis. Mr D’Urso also suggested lower back surgery.
29 Due to the plaintiff’s ongoing pain, he became more and more depressed and anxious, and Dr Andrianakis referred him to George Tsironis, psychologist, whom he first attended in late December 2010. Mr Tsironis prescribed 25 milligrams of Endep. The plaintiff was reluctant to take a lot of medication because it caused him stomach pain and upset.
30 At the time of his first affidavit sworn in January 2013, the plaintiff had stopped physiotherapy due to its lack of long-term benefit, but he kept going to the pool. He also joined a gym and did home exercises. He took Panadeine Forte, as required, particularly with worsening of symptoms.
31 As the plaintiff’s pain symptoms worsened, he requested a further specialist opinion in respect of the proposed surgery, and Dr Andrianakis referred him to Professor Bittar, neurosurgeon. He also recommended back surgery; however, the plaintiff remained fearful of undergoing a procedure. The plaintiff discussed the proposed surgery with Dr Andrianakis and subsequently, decided to put up with his pain symptoms.
32 As of January 2013, the plaintiff was attending Mr Tsironis and his general practitioner once a month, going to the pool every couple of days, the gym three to four times a week and he did home exercises. He was then taking Panadeine Forte, about six to eight tablets a day, one tablet of Murelax and Endep, one tablet at night. He tried to limit his medication intake as it made him drowsy and lethargic. Dr Andrianakis had then referred him to a psychiatrist.
Symptoms
33 In his first affidavit, the plaintiff described constant pain, difficulties with sitting, walking and standing, and having to change his posture frequently. He avoided running, having previously enjoyed running about 5 kilometres a week. He also avoided playing social soccer with friends on the weekend. He had previously enjoyed watching his Serbian soccer club games two to three times a month, but was then only attending matches about once a week.[4]
[4]T25
34 The plaintiff described problems with personal grooming and housework, and also cooking.
35 Following the incident, the plaintiff was depressed, anxious and irritable. There was increased tension caused at the home, resulting in him and his wife separating in 2011 and selling the matrimonial home.
36 The plaintiff then felt depressed and anxious as a result of his pain and restrictions. He could feel no future for himself and he preferred to stay at home than go out and socialise.
37 The plaintiff had difficulty sleeping and only slept for short periods due to his back pain. He found it very difficult to get comfortable in bed and, as a result, he was lethargic and withdrawn.
38 The plaintiff went back to Professor Bittar in about August 2013 and he sent him for another MRI scan.
39 In October 2013, Professor Bittar recommended conservative treatment. The plaintiff saw him again in late August 2014, when he discussed the option of a cortisone injection. However, the plaintiff was scared of that procedure and reluctant to have it, as he knew people who had not benefitted from that type of treatment.
40 The plaintiff re-attended Mr D’Urso in late January 2014. He again recommended back surgery, but the plaintiff’s fears remained and he was also concerned about there being no guarantee as to the success of surgery.
41 In late 2014, the plaintiff had stopped seeing Mr Tsironis due to lack of benefit from his treatment. The plaintiff was then seeing his general practitioner monthly and going to the pool and gym about three times a week, also doing home exercises.
42 The plaintiff was then taking Lyrica, 75 milligrams, one tablet most nights; Endep, 25 milligrams, one to two a day; Panadeine Forte, 500 milligrams, between two to eight most days and Temazepam, one at night.
43 The plaintiff’s lower back was worse in the mornings and during cold weather. When he sneezed, he felt a sharp knife-like pain in his lower back and had a reduced feeling in his legs. He had fallen on some occasions when his legs had given way when sneezing.
44 The plaintiff had learnt to adjust how he dressed and showered to minimise lower back pain, and he did these tasks carefully.
45 The plaintiff found it difficult and painful to stand to watch a soccer match and it was hard to find a seat. As a result, he no longer watched soccer weekly, and he went only about three or four times during 2014.
46 The plaintiff remained depressed due his ongoing lower back and physical restrictions. He tended to wake up during the night a number of times due to his pain.
47 In his third affidavit sworn 30 July 2015, the plaintiff confirmed he continues to suffer from ongoing pain symptoms, depression and anxiety as previously deposed. He takes the same medication, except he now takes one-and-a-half Endep tablets rather than one tablet most nights.[5]
[5]T26
48 In cross-examination, the plaintiff confirmed that his lower back condition has remained the same since the incident. He has leg pain sometimes if he is standing for a long time and there has not been a long period when he has been free of this pain. Most of the time, his back pain is 7 out of 10, or something like that. He cannot measure his pain.[6]
[6]T28
49 In late 2014, the plaintiff started seeing Mr John Karamanos, psychologist. He now sees him and Dr Adrianakis about three times a month.
50 The plaintiff returned to Mr D’Urso in May 2015 for review. He believes Mr D’Urso confirmed his diagnosis and again mentioned potential surgery. However, the plaintiff remains fearful of back surgery and is concerned it will not be successful and that he would be worse off because of it.
51 The plaintiff is still thinking about surgery. He feels scared because he could not be guaranteed he would feel better after surgery. Similarly, there was no guarantee he would feel better after an epidural. Also, the plaintiff had met several people who felt “very bad” after these procedures and thus he was scared to have them.[7] It is possible one day the plaintiff will want a back operation. The plaintiff denied he had not undergone these procedures because his pain was not that bad.[8]
[7]T29
[8]T29
52 The plaintiff continues to attend the pool for hydrotherapy approximately every second day and regularly goes to the gym. He does home exercises and he walks most evenings.
53 The plaintiff continues to have difficulty with personal grooming and housework, which he has to complete slowly and carefully.[9]
[9]T31
54 The plaintiff has rarely attended a soccer match because of the difficulty and pain it causes him.
55 The plaintiff continues to wake up a number of times during the night and usually does not get a lot of sleep due to lower back pain.
56 The plaintiff is worried he will not be able to look after any future grandchildren because of his back condition.
57 Between June and August 2014, the plaintiff was in Serbia to sell a block of land. He had intended to move there one day, but because of his injury, he had been forced to sell the property.[10]
[10]T52
58 The plane trip was very long and difficult for the plaintiff. He took a lot of painkillers and had to move around the plane. He was unable to look after his luggage on this trip as it was too heavy, weighing 15-20 kilograms, and he needed assistance to put it on the conveyor when checking in.[11]
[11]T31-2
59 The plaintiff had asked the defendant to terminate his employment, seeking a payout after weekly payments ceased to ease his financial difficulties.[12]
[12]T56 – this payout was in fact made after weekly payments were terminated – T64
60 The plaintiff was shown on film wheeling two bags at Tullamarine Airport on 4 June last year. When shown putting his big bag on the conveyor, the plaintiff explained that he could not recall whether someone helped him with his luggage as his son had just dropped him off at the airport.[13] The plaintiff maintained that he was always in pain and he knew how he felt every day.[14]
[13]T38
[14]T39
61 The first film shown was of several minutes taken over 25 November and 5 and 6 December 2011. The plaintiff was shown driving, walking along the street and, on one occasion, he bent into the passenger seat of his car and picked up some papers. He thought the film showed he was in pain, as he got into the car slowly. He agreed he attended the Serbian Social Club then, and still does sometimes. He sees people in the neighbourhood when he goes out.
62 In the second short film of 10 December 2011, the plaintiff was shown briefly talking to a real estate agent on the street. The plaintiff agreed he used to frequently attend a local coffee shop which has closed. He now has coffee regularly elsewhere. He confirmed he is always in pain, sometimes more, sometimes less.[15]
[15]T36
63 There was a short film on 28 March 2013. The plaintiff was shown partly obscured behind his car bonnet taking approximately half a dozen shopping bags from the trolley and putting them into the boot. The plaintiff explained this was not a “big shop”. He agreed he was earlier in the film shown pushing an empty trolley.[16]
[16]T40
Work since the incident
64 The plaintiff had a week off work without much improvement and then went back to Dr Farmer, who certified him off work again.
65 The plaintiff returned to work about two or three times later in 2010 on modified duties and reduced hours but only lasted two days on each occasion, with difficulty with prolonged postures and worsening back pain, even with light duties. He last attempted to return to work in about November 2010 but has not worked since. He does not believe he could return to any physical work, which he had done previously.
66 In cross-examination, the plaintiff agreed there had been a suggestion he was fit for work with a number of restrictions. He did not think he could work as an electronic technician as sometimes he felt very bad. Every day was different and if he felt very bad, he could not do anything.[17]
[17]T44
67 The plaintiff repeated these comments in terms of his capacity to work as a parking officer. He did not believe he could work as a courier because of his problems driving long distances. Whilst he agreed he did not know his capacity for work as he had not tried, plaintiff explained that when he tried to do things at home, his limitations were very clear.[18]
[18]T45
68 The plaintiff would try light work if it was offered. However, he had tried light work on three previous occasions and he could not continue. His doctors then recommended he stop work, otherwise his condition would worsen. He knew he could not do anything for long.[19]
[19]T47
69 No one had offered the plaintiff a job nor had Recovre found him work in one of the areas it had suggested. He told Recovre of his problems with English literacy when interviewed in 2012. Whilst the plaintiff was prepared to attend further English classes planned after that date, these did not take place.[20]
[20]T46
70 The plaintiff has complied with all the request of rehabilitation providers. His general practitioner currently certifies him unfit for all work.[21]
[21]T52
Treaters
71 Dr Andrianakis most recently reported in April 2015, having provided a number of earlier detailed reports. Dr Andrianakis then noted the plaintiff continues to struggle with pain and disability caused by his work injury, which is permanent, and surgery is the only likely treatment to ease his pains.
72 Dr Andrianakis noted the plaintiff had struggled with pain and depression since his injury and was not sleeping and not coping well with his disability. The plaintiff felt worthless that he could not work and was more distressed by the constant need to take analgesics and to attend therapy for his back.
73 Despite five years of treatment and being off work, the plaintiff admits he is no better and no closer to recovery, and that has caused him ongoing stress and depression.
74 Dr Andrianakis noted the need to treat the plaintiff’s depression was as important as the need to treat his lower back injury, because the two are now combined.
75 Dr Adrianakis would agree with a diagnosis of Depressed Mood and irritability, as the plaintiff struggled to cope with his pains and rehabilitation therapy, that was often interrupted by medical examinations, followed by ceasing funds for various assistance, followed by a process of appeals leading up to conciliation.
76 Dr Andrianakis thought the plaintiff needed ongoing psychotherapy and specialist psychiatric treatment as a result of the work injury that continued to cause him pain and disability.
77 In August 2015, having been provided with details of the jobs suggested by Recovre in September 2012, Dr Andrianakis was firmly of the opinion that, based only on his physical injuries, the plaintiff could not do any of those duties for any meaningful time (hand packer, sales assistant – retail, motor vehicle and vehicle parts salesperson – interpreter, and cleaner (domestic)).
78 Mr Brian Barrett, orthopaedic surgeon, saw the plaintiff in December 2010 on referral from Dr Andrianakis.
79 The plaintiff then continued to complain of low back pain radiating to the left buttock, and pain radiating to the left thigh, calf, ankle and foot, associated with numbness in the same region. Those symptoms were aggravated by prolonged postures and coughing. The plaintiff’s pain was not improving so far.
80 On examination, lumbar movements were very limited and produced low back pain. There was some tenderness in the lumbar spine and some restricted straight-leg raising on the left. Neurological testing was normal.
81 Mr Barrett had available the 2010 MRI film.
82 Mr Barrett thought the plaintiff had sustained serious injuries to both the L4-5 and L5-S1 lumbar intervertebral disc, producing low back pain, but also a left L5 and S1 nerve root sciatic problem.
83 Mr Barrett noted the restrictions that the plaintiff would require. If his symptoms did not improve significantly, Mr Barrett thought serious consideration would be appropriate of a two-level decompressive lumbar laminectomy, possibly combined with an operative fusion at the two lower lumbar disrupted disc.
84 Mr Barrett thought the plaintiff’s symptoms were a direct result of the nature of his employment and the symptoms, clinical and orthopaedic, and radiological investigations were all consistent, his symptoms being clearly due to the physical and genuine nature of his lower lumbar disc lesions.
85 Mr Barrett diagnosed a painful rupture involving the two lower lumbar intervertebral discs, particularly at L5-S1, where the significant posterior disc bulge was seen to be on the left, wedged against the left S1 nerve root and also close to the emerging left L5 nerve root.
86 Mr Barrett then thought the plaintiff was clearly quite unfit to return to either pre-injury or lighter alternative duties now or in the next few months. He considered the prognosis for lumbar disc ruptures of this severity was poor, and had a minimal capacity to heal or repair. He expected the symptoms would prevent the plaintiff returning to heavy physical work in the future.
87 Mr Barrett noted investigations repeated in February 2012 confirmed the painful ruptures involving two lower lumbar intervertebral discs, particularly at L5-S1, where there was a significant posterior disc bulge on the left as described in the earlier report. He confirmed his views as to prognosis.
88 Mr Paul D’Urso, neurosurgeon, first saw the plaintiff in December 2010 on referral from Dr Andrianakis.
89 Straight-leg raising was restricted on examination, with some alteration of sensation in the lateral aspect of the left leg and foot.
90 Mr D’Urso had available the 2010 MRI.
91 Mr D’Urso thought the plaintiff had developed an L4-5 disc prolapse with subarticular L5 nerve root impingement on the left. There was lesser disc degeneration at L3-4.
92 Mr D’Urso thought it appeared likely repetitive activities such as the plaintiff described at work may well have contributed to progression and aggravation of underlying L4-5 disc degeneration.
93 Mr D’Urso noted that there was a degree of congenital structural abnormality which existed and placed the plaintiff at high risk of L4-5 disc degeneration and prolapse. He thought the plaintiff was symptomatic from the L4-5 disc prolapse and L4-5 nerve root impingement.
94 In Mr D’Urso’s view, it then appeared the plaintiff did not have a capacity for work at that time. He suggested an L4-5 microdiscectomy and rhizolysis would be appropriate surgery, and also mentioned the appropriateness of an epidural injection.
95 Noting the plaintiff’s three failed attempts to return to work, Mr D’Urso thought it likely he would have no current capacity for employment, and that situation depended on the outcome of intervention. He suspected it unlikely the plaintiff would return to unrestricted physical and manual duties in the foreseeable future. He thought the plaintiff would require further treatment, and that with that, the prognosis for his condition should be satisfactory.
96 Mr D’Urso re-examined the plaintiff for medico-legal purposes in January 2014.
97 The plaintiff then advised that his condition had remained stable and he had persisting back and leg pain, which he rated as 7.5 out of 10. He reported a sitting tolerance of two hours, standing tolerance of an hour and walking for thirty minutes. He was limited by symptoms and awoke nightly with pain.
98 On examination, the plaintiff had mild global weakness but nothing clearly focal. Reflexes were preserved. Sensation was intact. Straight-leg raising was limited by back pain and sciatic symptoms.
99 Mr D’Urso noted that there had been a further MRI scan in August 2013. That revealed substantial progression of degenerative disc disease at L4-5 which now demonstrated a marked modic endplate change. There was mild subarticular stenosis at the L5 nerve root, worse on the left than the right. He noted the previously demonstrated L4-5 disc prolapse had reduced substantially in size and there was evidence of segmentation anomaly at the lumbosacral junction.
100 Mr D’Urso thought that the plaintiff was symptomatic with L4-5 disc disease with subarticular L5 nerve root impingement. He considered there then appeared to be evidence of significant degenerative progression of his condition.
101 Mr D’Urso explained how the plaintiff’s work duties placed excessive biomechanical strain at L4-5 and contributed to the development of prolapse and degeneration.
102 Mr D’Urso thought that the plaintiff did not have a capacity for pre-injury or unrestricted work. He considered he may have some capacity for part-time light work but he recommended permanent restrictions with any work involving repetitive bending, twisting or lifting activities. He thought the plaintiff should not be required to lift in excess of 10 kilograms or required to lift weight from below knee, above shoulder or perform repetitive bending, twisting or lifting. The plaintiff required the capacity to ambulate freely in the workplace and avoid sitting and standing for in excess of an hour.
103 Mr D’Urso noted consideration of an L4-5 interbody instrumented fusion should be given which was likely to improve the plaintiff’s pain management function capacity and capacity for employment. He thought that the long-term prognosis was likely to be satisfactory and there was likely to be a degree of degenerative progress with the plaintiff, which was somewhat difficult to determine and predict. He thought surgery was likely to improve the plaintiff’s functional capacity, pain management and employment prospects.
104 Mr D’Urso reported further, having been given Dr Yong’s September 2014 report. He disagreed with Dr Yong’s view that there was an L5-S1 disc prolapse without significant neural compression on the 2013 MRI.
105 Mr D’Urso’s interpretation of this scan revealed severe degenerative disc disease at L4-5 with subarticular stenosis, worse on the left than the right. He noted that the plaintiff has had a segmentation anomaly at the lumbosacral junction which may explain the inconsistency noted in Dr Yong’s report. Mr D’Urso carried out a further medico-legal examination in May 2015.
106 The plaintiff then said his condition had remained stable and his condition was similar to when last examined.
107 On examination, there was some mild global weakness in the right lower limb. Straight-leg raising was limited to less than 50 degrees bilaterally due to back pain.
108 Mr D’Urso confirmed his previous diagnosis, prognosis and views as to the plaintiff’s work capacity.
109 Mr D’Urso thought it likely that there would be employment activity that the plaintiff could perform. However, it was likely to be only of a part-time, light nature with restrictions, and the plaintiff would require some substantial vocational retraining and English learning to assist him to find employment activity.
110 Mr D’Urso thought that presently, the plaintiff would have a capacity to do three hours light employment on three separate days a week. He recommended any return to work be supervised by a general practitioner and occupational rehabilitation physician. He thought it likely that employment activity would aggravate the plaintiff’s current symptoms and increase his pain level and make it difficult for him to find suitable or reliable employment activities.
111 Mr D’Urso believed that the substantial majority of the pain restriction and disability, as well as incapacity, was related to the degenerative condition at L4-5. If managed conservatively, he thought there was likely to be a degree of degenerative progression of the condition. He considered surgical fusion may offer improvement in functional capacity, pain and disability. He thought that the plaintiff’s condition was stabilised.
112 The plaintiff was referred to Professor Richard Bittar, neurosurgeon, by Dr Andrianakis in November 2011.
113 The plaintiff then described to Professor Bittar pain radiating from his low back into his left buttock, hamstrings and to the lateral aspect of the calf, which Professor Bittar thought was consistent with the L5 distribution.
114 Professor Bittar had reviewed the 2010 MRI which demonstrated a left paracentral disc prolapse at L4-5, with compression of the L5 nerve root in the lateral recess. He considered the plaintiff presented with lower back pain and left sciatica as a result of the prolapse, and his presentation was consistent with left L5 radicular pain.
115 Given the plaintiff’s persistent symptoms, Professor Bittar then recommended a left L4-5 microdiscectomy. He thought the progress would be reasonably good if the plaintiff underwent that surgery, and that his long-term prognosis would be best assessed at least six to twelve months post operatively.
116 Professor Bittar then thought the plaintiff was unfit for both pre-injury employment and alternate duties.
117 On subsequent review in August and October 2013 (medico-legal), the plaintiff described continuing low back pain, radiating in his left leg if he stood for too long. His condition was unchanged.
118 Professor Bittar then also had available the 2013 MRI. He noted that demonstrated some collapse of the L4-5 disc with a reduction in the size of the left-sided L4-5 disc prolapse. There was a mild to moderate degree of bilateral subarticular stenosis at that level.
119 Professor Bittar confirmed his earlier diagnosis and thought that employment remained a significant contributing factor to the plaintiff’s ongoing pain, disability and requirement for treatment.
120 Professor Bittar noted, given the most problematic symptom was low back pain, and the size of the prolapse was reduced on recent MRI, he would not recommend surgery but ongoing conservative care. He thought, in the long term, the plaintiff was likely to continue to suffer from significant pain and disability.
121 Professor Bittar concluded the plaintiff was permanently incapacitated for pre-injury work. In theory, he had a physical capacity to do sedentary duties for two or three hours a day, three to four days a week. In practical terms, Professor Bittar noted the plaintiff speaks limited English and completed high school in Serbia without higher qualification.
122 Professor Bittar thought, taking those factors into consideration, together with his work experience, the plaintiff’s ability to find suitable employment would most likely be minimal.
123 On review in September 2014, the plaintiff’s condition had not changed, and he continued to complain of lower back pain radiating to his left leg. Symptoms were exacerbated by sitting or standing for more than 30 to 60 minutes or bending or lifting more than 5 kilograms.
124 Current medication was Panadeine Forte, Endep and Lyrica, which the plaintiff took daily.
125 Professor Bittar thought the plaintiff was permanently incapacitated for pre-injury work. He had a physical capacity to undertake very sedentary duties, probably at most for two to three hours a day.
126 Taking into account the plaintiff’s limited English, education and work experience, together with the prolonged period he had been off work, Professor Bittar thought, in practical terms, he was totally incapacitated for work on a permanent basis. Professor Bittar considered the prognosis was poor and the plaintiff was likely to continue to suffer from significant pain and disability for the foreseeable future.
127 Professor Bittar recently reviewed the 2015 CoWork Vocational Assessment.
128 Professor Bittar noted the author of that report had not met with the plaintiff and that that opinion was based on the firm view of Professor Brazenor that the prolapse had now healed and the plaintiff was capable of full employment – a conclusion with which Professor Bittar disagreed, on the basis of his direct interactions with the plaintiff.
129 Professor Bittar confirmed he thought the plaintiff had not made a full recovery from his condition and remained significantly symptomatic and disabled and, in his opinion, was most certainly not capable of full-time employment.
130 Professor Bittar thought the plaintiff was able to potentially work for two to three hours a day in a role not requiring sitting or standing for more than 30 to 60 minutes or bending or lifting more than 5 or 10 kilograms.
131 Professor Bittar thought, in relation to the role of electronic assembler, there was little information about what the job involved and, in those circumstances, it would be impossible to form a confident opinion as to whether the plaintiff had a capacity to work in that role, even for a few hours a day.
132 Professor Bittar thought having to change postures every 30 to 60 minutes would make it extremely difficult for the plaintiff to carry out work as a parking enforcement officer in a sustained fashion without experiencing a flare up.
133 Professor Bittar considered the plaintiff would be able to work as a pathology courier if he was lifting objects weighing less than 5 to 10 kilograms and not driving more than 30 to 60 minutes at a time. It was unclear as to both the weight of the objects the plaintiff would be required to carry and whether he would be required to drive long distances.
134 In the role of truck driver-waste disposal, Professor Bittar noted it was unclear how heavy the goods involved would be and whether the plaintiff would be required to engage in bending, pushing or pulling. Professor Bittar thought any of those activities may cause a flare up. It was also unclear whether the plaintiff’s back would be exposed to jolting or vibrational forces. Finally, it was unclear whether he would be able to change postures every 30 to 60 minutes and avoid sitting for more than that period of time.
135 Mr de la Harpe, orthopaedic surgeon, examined the plaintiff in January 2014 on referral from Dr Adrianakis.
136 On examination, the plaintiff had a slow, guarded gait and stood in a slightly forward flexed motion. There was no neurological abnormality. Mr de la Harpe noted the MRI scan revealed significant degenerative change in the L5‑S1 disc in a transitional zone, possibly with some subarticular stenosis.[22]
[22]It seems Mr de la Harpe was referring to the 2013 MRI
137 Mr de la Harpe offered the plaintiff an L5-S1 epidural injection. He was not sure if the plaintiff wanted to undergo the injection, noting he was still obtaining opinions from Mr D’Urso and Professor Bittar.
138 Mr de la Harpe recorded the history was of a gradual development of back and left leg pain, which the plaintiff associated with seven years of repetitive manual work on the line with the defendant. Mr de la Harpe was happy to accept that these sort of duties over that time had contributed to some degenerative change in the lumbar spine and therefore contributed to the plaintiff’s current degenerative back condition, with possibly some nerve root compression. He diagnosed degenerative back pain with probable subarticular recess narrowing and nerve root compression.
139 Mr de la Harpe did not think the plaintiff had a current fitness to return to work on the production line. He thought the plaintiff had a very limited capacity to return to any alternate duties.
140 Mr de la Harpe believed, at least, there was a necessity to try a CT-guided injection, and there was the possibility that some degree of decompressive surgery may be required. He considered the prognosis was extremely guarded, and he did not think the plaintiff would ever be in a situation where he would be capable of returning to work involving repetitive manual duties.
141 Mr Karamanos, psychologist, has seen the plaintiff regularly since December 2014. Treatment has consisted of cognitive behaviour therapy, coping skills, training, psycho educational methods, motivational interviewing and supportive psychotherapy.
142 As at May 2015, Mr Karamanos reported psychological treatment had yielded short-term gains that had not been sustained in the long term as a result of the plaintiff’s chronic intractable physical symptoms, his decompensated physical and psychological condition, fear avoidance behaviours, impaired concentration, thinking and decision making faculties and daily dependence on strong opioid analgesia.
143 Mr Karamanos thought the deterioration in the plaintiff’s mental health and onset of depressive and anxiety symptoms were precipitated by and secondary to the lower back and left pain that had developed as a result of the incident.
144 Mr Karamanos diagnosed Major Depressive Disorder moderately severe. He thought the plaintiff’s physical symptoms had been in a chronic phase for several years and therefore, he also suffered from a Chronic Pain Syndrome.
145 Mr Karamanos considered the plaintiff did not have a psychological capacity for both pre-injury duties or alternate duties. His opinion was based on the persistent chronic and intractable leg and back pain functional limitations, persistent anxiety and depression, impaired concentration, slow thinking and dependence on strong opioid medication. He thought, as long as the physical incapacity persisted, the plaintiff would also remain psychologically incapacitated for all work, and that was likely to be permanent. He thought the plaintiff would benefit from an additional 15 to 21-hourly psychological pain management treatment sessions and that as of May 2015, the prognosis must be guarded.
Investigations
146 There was an MRI scan of the lumbar spine in October 2010. At L4-5, it was reported there was a left paracentral disc protrusion impinging upon the traversing L5 nerve root in the left lateral recess.
147 A further MRI appears to have been undertaken in February 2012, the findings of which Mr Barrett noted were similar to the 2010 MRI. There is no report of this investigation.
148 There was an MRI scan of the lumbar spine organised by Professor Bittar in August 2013.
149 It was reported the L5-S1 disc was moderately degenerative and L4-5 and L5-S1 facet joints were mildly degenerative. There was multilevel very mild broadbased disc bulging. The central canal and exit foramina remained of adequate calibre, patent to mildly stenosed only. There was no budding, traversing nor exiting neural compression. It was concluded there were multilevel degenerative changes as described but adequate calibre central canal and exit foramina with no neural compression.
Medico-legal evidence
150 Dr David Middleton, occupational health and rehabilitation consultant, saw the plaintiff on 31 January 2014.
151 The plaintiff’s main pain was then in the low back, extending to the left buttock, described as aching, varying in intensity and aggravated by prolonged standing, where the pain went down the left side of the thigh into his foot. Sleep was frustrated and disturbed by low back pain and the plaintiff had had emotional symptoms as a result of his failure to recover.
152 The plaintiff described a standing tolerance of 30 to 45 minutes when he preferred to move about, 30 to 60 minutes sitting, depending on his pain, and walking for 30 minutes as a maximum. He could walk up to 1.5 kilometres, stating he could not walk fast or run.
153 Dr Middleton noted the plaintiff provided an “agonising history” and he tended to vocalise discomfort under examination.
154 On examination, there was tenderness on palpation in the lower lumbar spine, with some dulling of tendon reflexes in the left leg and reduction of straight-leg raising. There was a significant restriction in the range of lumbar movement.
155 Dr Middleton noted the MRI scans of 2010 and 2013.
156 Dr Middleton had available reports from all the plaintiff’s treaters and medico-legal examiners and also, the defendant’s medico-legal reports.
157 Dr Middleton thought the plaintiff’s current condition remained work related and his employment had been a contributing factor to it.
158 Dr Middleton diagnosed the plaintiff as having suffered a well described L4-5 disc prolapse to the left, impinging on the left L5 nerve root, resulting in radiculopathy.
159 Dr Middleton noted the 2013 MRI indicated the disc protrusion had partially resolved and the plaintiff’s ongoing leg pain was discogenic in origin. He thought the plaintiff also suffered with a Chronic Adjustment Disorder with ongoing Depression.
160 Dr Middleton considered the plaintiff no longer had the safe physical capacity to undertake his pre-injury work. His residual physical capacity was such he was no longer fit to do duties reliant upon a reliable and reasonable physical capacity, and as such, not having the skills to be reasonably able to gain paid employment in the open market, Dr Middleton thought the plaintiff did not have a fitness for alternative duties.
161 From a purely physical point of view, Dr Middleton considered the plaintiff may be able to attend work for between two to four hours in any one day and three to four non-consecutive days in any one week, where attendance at work cannot be relied upon. He thought suitable duties involved the plaintiff avoiding repetitive or prolonged bending, lifting, twisting or pushing or pulling involving the lower back. Dr Middleton considered a maximum effective weight of 5 kilograms occasionally and 3 kilograms intermittently needed to apply. He thought work needed to be self-paced, with the ability to take breaks when needed.
162 Dr Middleton considered the plaintiff would benefit from a multidisciplinary pain management program, and he needed ongoing monitoring by his general practitioner and the ability to attend specialists, including neurosurgeons, psychologists and psychiatrists as determined.
163 Dr Middleton considered the prognosis was poor, as the plaintiff was unlikely to make any significant gains physically and as such, gains would be limited to improving his quality of life rather than his physical capacity to obtain employment.
164 The plaintiff was examined by neurologist, Dr Roberts, in August 2013. The plaintiff then continued to complain of low back pain present when standing or sitting and which often spread to the left lower extremity, down the leg to the dorsum of the foot but not the toes. He indicated that his major problem related to poor sleep because of persistent pain. He felt miserable and his sons helped with various activities.
165 Dr Roberts noted that the plaintiff appeared depressed on examination and moved about slowly and reported the presence of low back pain. There was a very marked increase in the voluntary range of movement, slightly greater on observation, but there was not a great deal of difference. There was no spinal tenderness, but the muscles around the lumbosacral spine appeared rather tight, with apparent guarding.
166 There was minimal weakness in the lower extremities and a give-way weakness related to the reported pain. There was no focal organic weakness.
167 Dr Roberts noted, however, that there was a 2-centimetre wasting of the left thigh. There was no sensory abnormality.
168 Dr Roberts had available the 2010 and 2013 MRI scans. Having viewed the films, noting the limitation of the screens, he could not detect any significant change, but he recommended waiting for the formal report.
169 Dr Roberts thought that the plaintiff’s condition was consistent with the stated cause and appeared to be work related. He noted that the plaintiff has degenerative disease of the lumbosacral spine which had developed over the years, perhaps with a genetic susceptibility. The plaintiff’s work appeared to have aggravated or exacerbated this condition. Dr Roberts noted that that was related to the nature of his employment, his posture and the heavy lifting and bending and nature of his work.
170 Clinically, Dr Roberts thought that the diagnosis appeared to be that of a left L5 radiculopathy but there were no unequivocal neurological signs to confirm it. There was left thigh wasting but the reason was not clear and did not localise to any particular nerve root distribution.
171 Dr Roberts did not consider the plaintiff fit either for pre-injury or alternate duties. He thought further treatment would be necessary, with ongoing pain management and exercise, noting that he considered surgery appropriate to consider in the future. He thought the prognosis was poor.
172 Dr Roberts thought that there were also psychological factors involved, with change behaviour with irritability and aggressiveness and poor sleep which had worsened the prognosis. He thought that even with surgery, the plaintiff may well have continued difficulty with lower back pain. Overall, the prognosis was quite guarded but may be influenced by surgery or not. He noted consideration of psychiatric care may also be appropriate for the plaintiff.
173 Dr Roberts was subsequently provided with Dr Yong’s 2012 and 2014 reports.
174 Noting the 2014 report, Dr Roberts commented that it appeared from the descriptions recorded that there had been some improvement in the plaintiff’s physical capacity or its recent manifestation given Dr Yong’s certification of a light work capacity.
175 Dr Roberts noted from Dr Yong’s report that it seemed likely that the plaintiff had a greater capacity for work than it would seem and, in that sense, it would seem likely that his assessment would be altered. He noted, however, psychological factors also needed to be taken into account and those were not assessed by Dr Yong.
176 In summary, Dr Roberts commented that taken on face value, Dr Yong’s 2014 report suggested some unexpected physical improvement since the August 2013 examination and therefore, possibly would alter his opinion in relation to physical disability. However, Dr Roberts noted that the psychological aspects had been specifically excluded from Dr Yong’s report and a more up-to-date psychiatric assessment would seem appropriate to determine whether there was a current work capacity from the psychiatric perspective.
177 Dr Roberts re-examined the plaintiff in October 2014.
178 The plaintiff again related sleep was a major problem for him due to the presence of back and left leg pain. He reported that he felt depressed and miserable all the time. He continued to complain of constant low back pain and left lower extremity pain.
179 Dr Roberts noted the 2013 MRI scan showed some degenerative changes, especially at L5-S1 and L4-5, and multilevel disc bulges. On the review of the film, Dr Roberts could not identify any definite nerve root compression.
180 Examination demonstrated the plaintiff was rather anxious with a flattened affect but did not appear overtly depressed. He had a slight antalgic gait. There was again some slight wasting of the left thigh. There was no guarding of the back. There was, however, a moderate to marked reduction in the range of back movement in all directions and the plaintiff was slow with movements, including getting up from the couch and from a sedentary position.
181 In Dr Roberts’ clinical opinion, the plaintiff was not fit to resume any pre-injury employment or return to duties. Dr Roberts noted that the plaintiff cannot remain in one position for an extended period and does not have training or a qualification that would allow him to work in a more sedentary occupation, although theoretically that might be possible.
182 Dr Roberts thought that there appeared to be psychological factors which were outside his field. He considered that because of a combination of physical and psychological factors, the plaintiff’s prognosis was poor.
183 Dr Roberts last saw the plaintiff in May 2015. There were then similar findings on examination to October 2014.
184 Dr Roberts concluded that overall, the major factors contributing to the plaintiff’s inability to work would appear to be his depression and psychological factors. In addition, the plaintiff reported continued pain but there were no changes or signs. In particular, there was no guarding, although the plaintiff had a continued restriction of movement.
185 Dr Roberts noted that the plaintiff had evidence of an L4-5 radiculopathy in the past. There were no new signs. In addition, the plaintiff appeared rather miserable.
186 Dr Roberts noted the relatively minor wasting of the left thigh but thought it was compatible with there being an L4-5 radiculopathy on the left. It was likely that the plaintiff had some ongoing pain in relation thereto.
187 Dr Roberts thought that on none of his examinations did the plaintiff demonstrate any of the improbable descriptions or exaggerated clinical signs of learned pain behaviour, and that there was wasting in the clinical history consistent with the left L5 radiculopathy.
188 Dr Roberts noted that one cannot prove the presence of organic pain and he suspected that there was some underlying central sensitisation that had occurred in the absence of any underlying psychiatric diagnosis. He thought that there were degenerative changes in the spine and that the organic effects of the back injury and underlying degenerative condition would prevent the plaintiff from returning to his pre-injury employment or alternate duties.
189 Dr Roberts noted that the plaintiff cannot remain in one position for extended periods of time and does not have training and qualifications that would allow him to work in a more sedentary occupation, although, theoretically, that might be physically possible.
190 It remained Dr Roberts’ opinion that the plaintiff was unable to return to pre-injury duties because of his injury and underlying degenerative disease. He did not consider that the plaintiff was trained for, or has qualifications for, other sedentary work, and that would be theoretically physically possible.
191 Dr Roberts had indicated previously that there were psychological factors present that were outside his field but he did not accept the diagnosis of learned pain behaviour. He noted that, as with any patient with pain, it was difficult to be certain of the severity of the pain, and that remained the case, noting there were clear psychological factors involved.
192 Dr Roberts thought that the plaintiff may benefit from attendance at a multidisciplinary pain management clinic and that may help alleviate the symptoms related to the physical effect of his injury and his ability to cope.
193 The plaintiff was examined by Dr David Vivian, musculoskeletal physician, in May 2015.
194 The plaintiff then complained of left-sided lower back pain, more over the iliac crest. The plaintiff thought he had a sitting tolerance of an hour. There was left leg pain when he stood for a long time. There was no numbness. The plaintiff also complained of sleep disturbance.
195 Dr Vivian noted the 2010 and 2013 MRI scans.
196 On examination, back movements were decreased and produced pain. There was mild reduction of straight leg raising.
197 Dr Vivian thought the plaintiff’s pain was derived at least from the L5-S1 disc (discogenic pain). The leg pain was derived, initially, from the nerve root compression seen in the initial MRI scan and it persisted mildly, presumably because of permanent nerve root injury and/or persistent minor disc protrusion still compressing the nerve root and/or perineural scar and adhesions. He thought it was likely to be radicular rather than referred pain, and commented that the MRI scan can be false negative for both residual disc prolapse and nerve root injury.
198 Dr Vivian thought persistent back pain was the major issue and the pain was likely to be discogenic. He considered there was a significant correlation between modic changes (representing inflammation and injury going from the disc into the adjacent vertebra), provocation, discography and back pain. He thought those changes reflected substantial injury. He also raised the possibility of the changes reflecting secondary infection.
199 Dr Vivian thought the pathology causing the plaintiff’s disability had been substantially or totally contributed to by the nature of his work involving loading of the lumbar spine.
200 Dr Vivian thought the plaintiff now has chronic pain and disability from his disc injury which is permanent and stable.
201 In Dr Vivian’s view, the plaintiff is unfit for work that involves physical activities and he would not be able to work in a simple sedentary job. Any work, even a sedentary job, would now increase his disability and pain.
202 Dr Vivian noted treatment was not simple and that surgery was one option. For lower back pain it was less successful than for radicular pain caused by disc protrusion and/or spinal canal stenosis. Surgical possibilities included discectomy and fusion. Reported success rates for such treatment for lower back pain varied from 30 to 80 per cent; however, as pain levels were high, Dr Vivian thought the plaintiff might have to consider some such treatment trial if offered by a surgeon.
203 Dr Vivian thought simple injection, such as epidural injections, were not indicated; however, he considered somewhat more complex needle intervention might be worth considering, such as an epidurogram followed by epidurolysis under sedation, which was less invasive than surgery and after a few repeats might improve the plaintiff’s pain. He thought spinal cord stimulation should also be considered.
204 If no intervention was offered or it was declined, noting it was very reasonable to decline intervention, Dr Vivian then thought management would consist of general pain management systems, counselling, medication, exercise, pain management programs, all of which might provide temporary respite.
205 Dr Sullivan, anaesthetist and pain specialist, reported in May 2015. He noted the plaintiff then complained of less left-sided leg pain and more of a unilateral left-sided lower back pain. The plaintiff assessed his pain at 7 out of 10, which was quite good for him, and it averaged 8 out of 10, with severe exacerbations rarely up to 10 out of 10.
206 The plaintiff described a sitting, standing, driving and walking tolerance of around 30 minutes.
207 Dr Sullivan noted the 2010 and 2013 MRI scans.
208 Dr Sullivan concluded the heavy and arduous nature of work with the defendant was a significant if not sole contributor to the plaintiff’s current clinical presentation, including his pain presentation, associated functional limitations and his time out of the workforce and inability to rehabilitate to the point where he could get back to work.
209 Dr Sullivan thought the plaintiff had no current capacity to return to work in pre-injury duties. He noted the extremely limited potential for vocational rehabilitation, given the plaintiff’s limited English, education and skillset.
210 Dr Sullivan thought an interdisciplinary pain management program would be appropriate and there were further treatment options, including surgery, although he thought the chances of a dramatic improvement in the plaintiff’s functional condition from surgery were questionable. He noted neuromodulation was an option and a minimally invasive approach, and it would also be prudent for the plaintiff to undertake a comprehensive interdisciplinary pain management program to ensure maximisation of self-management skills.
211 Dr Sullivan concluded the chances of the plaintiff rehabilitating to be able to return to his pre-injury duties were negligible and his chances of rehabilitating to return to the workforce in any meaningful capacity were questionable. He concluded, overall, the plaintiff experienced significant negative impacts in terms of his level of function and quality of life as a consequence of his workplace injury.
212 The plaintiff was examined for medico-legal purposes by psychiatrist, Dr Michael Epstein, in March 2015.
213 As the claim pursuant to clause (c) was effectively abandoned, I do not propose to refer to this examination in detail, save that Dr Epstein concluded the plaintiff he had a Chronic Adjustment Disorder with Depressed Mood as a consequence of chronic pain, discomfort and disability.
214 In a subsequent report of April 2015, Dr Epstein advised the impression gained was that the major factor preventing the plaintiff from returning to work was his physical symptoms. He thought the plaintiff’s psychiatric condition alone did not fully prevent him returning to work, although it may make it more difficult for him to cope with co-workers and managers because he was irritable, easily frustrated, intolerant and unmotivated, hence his psychiatric condition played a part in limiting his work capacity.
215 Having been provided with the report from Dr Andrianakis of April 2015, Dr Epstein stated he agreed with the opinion expressed therein as to the plaintiff’s mental state.
216 Having been provided with a report from Dr Karamanos, Dr Epstein noted he was essentially in agreement with him in his diagnosis of a Major Depressive Disorder of moderate severity. Dr Epstein thought the plaintiff had a Chronic Adjustment Disorder with Depressed Mood, but that was not a major or significant difference of opinion.
217 Dr Epstein agreed that the plaintiff’s chronic pain had led to his current mental state and that given the passage of time, there was unlikely to be any marked improvement in his physical state and hence his psychiatric condition was stable and his prognosis for improvement was poor. In general therefore, he agreed with his opinion.
The Plaintiff’s earnings
Financial Year Ending Gross Earnings 30 June 2007 $68,644.00 30 June 2008 $68,622.00 30 June 2009 $62,036.00 30 June 2010 $48,899.00 30 June 2011 $57,639.00
(including weekly payments)
The Defendant’s medico-legal evidence
218 As counsel for the defendant conceded the plaintiff suffered a prolapse in the incident, demonstrated on the 2010 scan,[23] the focus of the defendant’s submissions related to later examinations and the 2013 MRI findings.
[23]Mr Kendall Francis, in November 2010, and Dr Lange, in February 2011, July 2011 and January 2012 both found nerve root involvement and a work-related prolapse. Neither thought the plaintiff had a capacity for pre-injury duties.
219 When Dr Lange, occupational physician, last saw the plaintiff in January 2012, he thought the plaintiff had a capacity for light work with a 5-kilogram lifting limit commencing working part time for four hours a day and slowly increasing to full-time hours over three months.
220 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in May 2012. The plaintiff then presented with a somewhat flat affect and moved slowly and demonstrated a normal gait. There was restriction of lumbar movement and passive straight-leg raising.
221 Mr O’Brien noted the 2010 MRI scan was reported as demonstrating a left paracentral disc protrusion at L4-5, impinging upon the traversing L5 nerve root in the left lateral recess.
222 Mr O’Brien confirmed physical signs certainly demonstrated restriction of lumbar movement, but there were no specific signs to indicate the presence of ongoing nerve root compromise and certainly no evidence of radiculopathy. He noted that MRI scan, which suggested left-sided disc protrusion with nerve root impingement. Despite that, he thought the plaintiff’s leg pain was certainly not currently accompanied by clinical evidence of nerve root pathology.
223 The history, signs and radiology, Mr O’Brien thought, certainly would suggest that the plaintiff’s underlying pathology remained discogenic at L4-5 with no signs of specific L5 radiculopathy. He considered employment remained a significant contributing factor. Mr O’Brien thought the clinical condition would now have to be regarded as stable.
224 Mr O’Brien noted the plaintiff presented describing significant disability. Whilst certainly there was well established chronic pain, this undoubtedly had been complicated by psychosocial issues.
225 Mr O’Brien noted the plaintiff certainly considered himself totally incapacitated. Mr O’Brien was sure this attitude would result in an inability to return to the workforce. In fact, he considered this complex clinical presentation was now responsible for the plaintiff being totally incapacitated, a situation that was likely to be permanent. Indeed, he thought the plaintiff would continue to be significantly restricted in relationship to his general, social, domestic and recreational activities.
226 Dr Wyatt, occupational physician, examined the plaintiff in April 2013. On examination, she noted the plaintiff had a fairly negative focus and a strong focus on his limitations. There appeared to be mild wasting at the left thigh. There were a number of non-organic findings including global weakness demonstrated in the left leg.
227 Dr Wyatt noted the 2010 MRI scan which showed a disc protrusion at L4-5 impinging on the L5 nerve root.
228 Dr Wyatt thought the plaintiff had developed back pain with a disc prolapse and sciatica. It was possible that condition had improved; however, she would say it was very difficult to tell. She thought the plaintiff’s back problem had been compounded by a Mood Disorder.
229 Dr Wyatt noted the plaintiff’s general presentation and, in particular, his examination findings made an accurate assessment of his problem difficult, with him reporting disability greater than one would expect for his condition and his examination findings were heavily clouded by non-organic or non- physical findings.
230 Dr Wyatt thought the loss of muscle bulk did not correlate with his left L5 distribution of symptoms and scan findings and, as such, seemed to be unrelated. She thought the plaintiff had no clear objective findings of ongoing radiculopathy, although he reported significant ongoing symptoms.
231 Dr Wyatt thought it reasonable to accept the plaintiff’s employment contributed to his back problems in 2010.
232 Dr Wyatt thought the plaintiff’s presentation suggested his back problem had been clouded by other factors, such as his mood, perception about his work capabilities et cetera. With his general presentation, it made it difficult to assess how much of his condition related to organic pathology and how much to non-medical or non-physical factors. In the circumstances, Dr Wyatt thought it seemed sensible to assume there was a continuing back problem and that, reasonably, ongoing disc protrusion would make it difficult for the plaintiff to do repeated deep bending, constant lifting and awkward posture work, as well as static posture activities.
233 Based on all the information, Dr Wyatt thought it seemed likely the plaintiff was unable to return to his normal job in the foreseeable future.
234 Based on the plaintiff’s general presentation, taking into account his past work history which had been manual, Dr Wyatt thought he did not present as having a capacity for suitable employment, at least for the next few years. With a modest focus on rehabilitation, she thought he may be able to get back to a less physical job in the future. That would, in the large part, depend on his focus and at present that was on his disability.
235 Dr Wyatt expected the plaintiff would be able to return to work in a few years, working in a less physically taxing role, such as a less demanding machine operator or doing process work. She thought the plaintiff was likely to have ongoing back complaints into the foreseeable future.
236 Dr Yong, occupational physician, first saw the plaintiff in September 2012.
237 Dr Yong noted the 2010 MRI, which revealed the presence of a left paracentral disc prolapse at L4-5 impinging the left nerve root.
238 On examination, the plaintiff had a slow gait with no obvious ataxia. There was tenderness to palpation in the low and midline into the leg. There was reduced range of movement. There were Waddell’s signs, including superficial tenderness, discrepancies on straight-leg raising, and axial loading test was mildly positive.
239 Dr Yong concluded the plaintiff had an initial discal injury leading to radicular symptoms and there were no current features of a radiculopathy. He thought the plaintiff’s condition had been complicated by a psychological comorbidity and there were also features of Wadell’s signs, suggesting magnification of the symptoms. He was unaware of any non-work related factors contributing to the plaintiff’s condition.
240 Dr Yong thought the incident injury was a primary one in the form of a disc prolapse. Whilst the plaintiff appeared to have ongoing features related to a discal injury, they had been complicated by other factors, but it was still work related.
241 Dr Yong thought the plaintiff, then, had a current capacity to do work involving the following restrictions:
§ avoid repeated bending and twisting the back
§ avoid firm pushing or pulling
§ avoid lifting more than 4 kilograms repeatedly; and
§ varying posture regularly between sitting, standing and walking.
242 Dr Yong would anticipate the pre-injury role would exceed these restrictions and, therefore, the plaintiff did not have a current capacity for those duties and had a current capacity to perform tasks complying with restrictions that he had outlined.
243 Dr Yong then thought the prognosis for the physical condition alone should not be unreasonable, assuming the plaintiff can participate in an activity-based recovery program.
244 On further examination in September 2014, the plaintiff reported his symptoms in his back and leg had persisted.
245 The plaintiff brought with him the 2013 MRI. Dr Yong noted that it set out the presence of an L5-S1 disc prolapse without any significant neurocompression.
246 On examination, there was restriction of lumbar movement and mild tenderness to palpation. Neurological examination was unremarkable. Dr Yong noted the Waddell’s signs appeared to be resolving.
247 Dr Yong confirmed the work restrictions described in his earlier report.
248
Given the duration of the plaintiff’s condition and his clinical progress,
Dr Yong thought his incapacity to perform pre-injury tasks was permanent, but he had a capacity for suitable employment.
249 Dr Yong suggested a graduated return to work program was indicated, which would initially involve working reduced hours. An initial recommendation would be to work four-hour shifts three days a week, and that could increase back to pre-injury hours over six months. He thought some of the restrictions would relax with an activity-based recovery program; however, they could not be completely removed and some restrictions remain, which would result in an incapacity into the foreseeable future.
250 Dr Yong was provided with Professor Brazenor’s August 2014 report in which he set out, he thought, the diagnosis was a healed disc at L5-S1, and reported some features where the complaints of pain were difficult to accept.
251 Noting his previous findings, Dr Yong thought it likely there was some limited improvement in the plaintiff’s condition since previous review.
252 Dr Yong then commented on Mr D’Urso’s October 2014 report and his comments on the 2013 MRI scan. Dr Yong confirmed that, in his view, there was presence of an L5-S1 disc prolapse without any significant neurocompression. He did note that, on review of his notes, there was also some degeneration in the lumbar spine and he did note no evidence of neurocompression and no evidence of a radiculopathy; therefore, his assessment remained unchanged.
253 Dr Yong noted Mr D’Urso and he were commenting upon their interpretation of the scan and this information was taken into account with their own clinical findings to determine the diagnosis. Dr Yong thought that might explain the difference in diagnosis between the two assessors.
254 Dr Yong provided a further report on Mr D’Urso’s comments. Dr Yong felt that the significant finding was at the L5-S1 level and not at L4-5, taking into account the clinical findings and the most recently viewed radiology of 2013.
255 In light of his most recent assessment of the plaintiff in September 2014, Dr Yong confirmed the restrictions he previously imposed on the plaintiff’s work.
256 Having seen the 2012 vocational report, Dr Yong thought the suggested job of hand packer could be too heavy and therefore, required individual assessment, making a similar comment in relation to a sales assistant role due to the stacking and packing that may be involved.
257 Dr Yong considered the plaintiff’s ability to undertake work as a motor vehicle and vehicle parts sales person or interpreter depended on the weight of the components, thus that job also required individual assessment. With regard to the role of cleaner, that involved a range of duties which would exceed the restrictions when required to clean windows; therefore, it was not considered to be reasonable for the plaintiff.
258
Professor Brazenor, neurosurgeon, saw the plaintiff once on
28 August 2014. He had available reports from Dr Adrianakis, Mr Barrett, Mr D’Urso, Professor Bittar, Dr Roberts, Mr O’Brien, Dr Yong, Dr Lange and Dr Wyatt, together with the 2012 vocational assessment.
259 Professor Brazenor noted the said date was the first time the plaintiff had significant left leg pain. He noted, curiously, the plaintiff rubbed the anterolateral aspect of his left thigh, telling him about that. Professor Brazenor could not really get the plaintiff to commit to a proposition of whether the back pain had started to manifest earlier than that, because he was not sure whether the symptoms really began in late July.
260 Professor Brazenor noted the MRI scan showed a disc prolapse and the plaintiff really had not worked since then, with a couple of attempts which increased his pain.
261 Professor Brazenor asked the plaintiff about his contemporary status and activities of daily living. He asked him what he said was to be a very important question, whether he had improved at all in the last two years. The plaintiff could not really tell how he had improved, which Professor Brazenor thought meant there had been no significant improvement.
262 On examination, there was two-fifth’s spasm of the lumbar erector spinae muscles, and a mildly limited lumbar lordosis. The left thigh was seen to be mildly wasted with respect to the right. There was restricted straight-leg raising, allegedly limited by pain in the left posterior iliac crest. Plantar flexion was obtained after encouragement. There were inconsistencies on straight-leg raising.
263 Professor Brazenor noted the plaintiff exhibited his gait in a curious, slow, stiff manner which he could not explain medically. He did not appear to have any leg pain during the examination. The plaintiff complained of it being terribly painful standing behind a chair, holding onto the back of it for balance and raising his heels off the carpet. When asked to stand on his heels, the plaintiff grunted to communicate he was experiencing pain, which Professor Brazenor thought was also medically inexplicable from a low back point of view.
264 Professor Brazenor noted in the 2010 MRI that the L5-S1 disc seemed to be moderately deflated and there was a small left lateral recess focal disc prolapse. It was of a magnitude that would have made him advise, at that time, it was likely to resolve spontaneously with sensible, conservative measures.
265 In the recent 2013 MRI, the disc had not deflated further but there were prominent modic changes in the vertebra above and below the L5-S1 disc space. Professor Brazenor noted the disc protrusion, itself, had certainly healed. There was now no pressure on any left sided nerve root and no significant foraminal stenosis.
266 Professor Brazenor concluded the plaintiff had a recent left lateral recess focal prolapse of L5-S1 when first scanned, which he thought was consistent with injury in the incident. In his view, the injury had now healed and the plaintiff’s complaints of pain were difficult to accept because:
(i)They were highly atypical of pain from someone with a lumbar disc prolapse, in that there was no pain distribution described that could be construed as anything like sciatica, and the site of the alleged lower back pain did not relate to the lumbar disc disease and;
(ii)The plaintiff claimed not to have improved significantly over the years since his injury and yet the record of the MRI scans clearly showed excellent healing in that small prolapse as, indeed, occurred in the majority of patients with such a condition.
267 On balance, Professor Brazenor believed the plaintiff did not have the severity of symptoms alleged and from examination and perusal of the MRI scans, he believed the plaintiff was fit for full-time work from now until retiring age and the only restriction he placed on that employment was that the plaintiff should not be asked to do repeated bending at the waist, repeated accessing of levels below his waist, or lifting of weights (even where such lifting does not involve bending at the waist) in excess of 20 kilograms. No further treatment was necessary.
268 Professor Brazenor diagnosed a healed disc at L5-S1 injured in the incident. He doubted whether the plaintiff had any more than mild lower back pain, if that. He thought surgery would make him worse.
269 Professor Brazenor noted a discectomy conferred only a single benefit, namely more rapid resolution of sciatic pain. At twelve months after that procedure, a population of operated patients is indistinguishable from a population of disc prolapse patients who have been treated without operation.
270 Professor Brazenor doubted whether the plaintiff could do his pre-injury job because of the necessity for bending and lifting.
271 Professor Brazenor concluded the likely consequences of the plaintiff’s injury simply reflect the loss of the L5-S1 disc as an elastic shock absorber. As a result of this injury, he thought the plaintiff would forever have to avoid bending at the waist, twisting at the waist and lifting of objects (even where such lifting was permitted because it does not involve bending at the waist) in excess of 20 kilograms.
272 Professor Brazenor thought that Mr D’Urso’s assessment of 19 August 2013 was consistent with his and saw no reason to change his opinion.
273 Having been provided with further material, Professor Brazenor noted Dr Adrianakis, Professor Bittar, Mr de la Harpe, Dr Vivian, Mr D’Urso and Dr Roberts seemed to accept without question the plaintiff’s account of his ongoing alleged pain and disability.
274 Moreover, two specialist physical examinations ignored (or did not discover) significant details of the plaintiff’s clinical presentation which were quite obvious from Professor Brazenor’s examination of him.
275 Professor Brazenor thought Mr De la Harpe made an assumption without an evidence base being offered. One could see in the last MRI scan, there was no significant subarticular recess narrowing or nerve root compression and the disc protrusion had healed.
276 Professor Brazenor thought invasive treatment, when there was no significant evidence of organic disability, was ill advised
277 Professor Brazenor thought it was theoretically possible to conclude, as Mr De la Harpe did, that seven years of manual duties have contributed to some degenerative change in the lumbar spine and therefore, contributed to the plaintiff’s current condition of degenerative back pain with, possibly, some nerve root compression. However, he noted how much of the plaintiff’s lumbar degenerative changes were due to similar activities in private time, or merely aging, no one could say.
278 Professor Brazenor disagreed with Mr De la Harpe that there was subarticular recess narrowing and nerve root compression, noting his examination findings and the 2013 MRI. Nevertheless, he agreed with Mr De la Harpe that the diagnosis was that of degenerative back pain of an indeterminate degree.
279 On the basis of his physical examination on the 23rd and the MRI scan, Professor Brazenor confirmed that the plaintiff was fit for full-time employment to normal retiring age but he would not send him to work in a capacity where he had to repeatedly bend at the waist or lift objects to or from significantly below the waist. He did not agree with any form of invasive treatment insofar as he believed that there was a significant credibility gap between the plaintiff’s claims of pain and disability on the one hand and the MRI scan in 2013, which was now within normal limits for the plaintiff’s age.
280 Professor Brazenor agreed the prognosis was guarded, insofar as he did not believe the plaintiff was likely to give up his allegations of pain and disability.
281 Professor Brazenor thought that in his 2015 report, Mr D’Urso did not seem to be aware that the disc prolapse present in 2010 had now healed and he appeared not to appreciate the inconsistency between improving radiological picture (signifying significant healing) and the allegation of a completely static and incongruously severe level of pain and disability.
282 Professor Brazenor noted Dr Roberts, in May 2015, had some doubts about the physical aspects of the plaintiff’s condition, noting major factors appeared to be depression and psychological. Whilst noting the plaintiff reported continued pain, Dr Roberts had noted there were no changes in signs and, in particular, there was no guarding, although the plaintiff had a continued restriction of movement. Dr Roberts, nevertheless, concluded the condition described was consistent with the stated cause.
283 Professor Brazenor thought Dr Roberts had made a serious error concluding the wasting of the left thigh was compatible with there having been an L5 radiculopathy on the left. In Professor Brazenor’s view, L5 had absolutely nothing to do with the innervation of any muscle in the thigh in the human being.
284 Professor Brazenor noted that all lesions that seemed to heal on lumbar MRI scan were attended by at least some improvement in (and, in most cases, resolution of) the painful symptoms.
285 Professor Brazenor also noted that another contradiction remained the fact the plaintiff claims to be very seriously disabled and in constant pain and yet does not take up Mr D’Urso’s offer of a spinal fusion.
286 Noting the 2012 vocational report was almost three years old, Professor Brazenor thought none of the suitable employment options identified were suitable for someone with documented lumbar disc injuries in the past, even if they are largely healed.
287 Professor Brazenor reiterated his views as to the plaintiff’s work capacity. Thus, suitable jobs, in his view, would be driving a heavy truck where the plaintiff did not have to personally handle the freight, he could be a parking officer or he could be a security guard on patrol, but not crowd control nor in an armoured car where he would have to lift heavy cash boxes.
288 In a suitable job, the plaintiff could begin immediately and work full hours and continue to work until normal retiring age.
289 The plaintiff was examined by Dr Entwisle, psychiatrist, in May 2012. He diagnosed an Adjustment Disorder with Depressed Mood.
290 Dr Ratnayake, psychiatrist, examined the plaintiff in November 2012. A Mild Adjustment Disorder with Depressed Mood was diagnosed.
291 Dr Ratnayake noted the plaintiff appeared to be unwilling and unmotivated to return to work. The plaintiff stated he was unable to say when, or if, he was able to perform any light duties. He said he would like to return to work, although he was unable to say when that would be. Dr Ratnayake thought the plaintiff had a current work capacity from a psychiatric point of view and a physical point of view.
292 Associate Professor George Mendelson, psychiatrist, examined the plaintiff in January 2015.
293 Associate Professor Mendelson concluded the plaintiff did not have any diagnosable mental disorder based on his current emotional symptoms and his observations on mental status examination do not meet the diagnostic criteria or threshold for a finding of a specific psychiatric disorder. Any specific depressive symptoms that might have been present when the plaintiff was examined by Dr Ratnayake had resolved.
294 At the same time, Associate Professor Mendelson accepted and acknowledged the plaintiff had some emotional symptoms due to an understandable psychological reaction to his physical complaints.
295 Associate Professor Mendelson thought the plaintiff’s complaints were a manifestation of what had been termed “learned pain behaviour”.
296 In respect of work, Associate Professor Mendelson thought the plaintiff had no loss of work capacity due to any psychiatric illness or impairment. He thought the plaintiff required firm and unequivocal explanation and reassurance from his treaters that the effects of prolapse had resolved and there was no contraindication to return him to gainful employment. He thought pain management may be of some assistance.
Vocational evidence
297 Recovre carried out an NES vocational assessment in September 2012. Identified suitable employment options in order of priority were hand packer, sales assistant (retail), motor vehicle and vehicle parts sales person/interpreter and cleaner – domestic.
298 Joanne Bryant, occupational therapist from CoWork Pty Ltd, provided a vocational and labour market analysis report in August 2015. The plaintiff was not interviewed for the purposes of this report and the only material provided to the author were reports from Associate Professor Brazenor and Dr Yong.
299 Ms Bryant suggested vocational recommendations appropriate for the plaintiff were electronic assembler, parking officer, medical courier, truck driver and waste disposal.
Summary of surveillance
300 Between 25 November 2011 and 12 June 2015, there was 73 hours of surveillance, during which there 47.12 minutes of film was taken.
Overview
301 It is not disputed the plaintiff suffered a compensable injury to his lumbar spine during the course of his employment, in particular, on the said date.
302 The defendant accepted liability for the payment of weekly payments and medical expenses. The plaintiff’s Section 98C application was also accepted. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[24] 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.”
[24][2006] VSCA 171
303 It was conceded that the initial diagnosis was a prolapse shown on the 2010 MRI[25] with apparently a similar finding on the MRI of February 2012 as Mr Barrett noted.[26]
[25]T74, T76
[26]Mr Barrett is the only practitioner who commented on that investigation
304 However, there is a dispute as to the nature of the plaintiff’s ongoing spinal condition[27] and it was submitted on the defendant’s behalf that the plaintiff’s present spinal condition was inexplicable on an organic basis and could be explained in terms of psychological embellishment on the plaintiff’s part.[28]
[27]T22-2
[28]T76
305 Counsel for the defendant also submitted that to the extent there may be an organic aspect, this case “cries out for disentanglement” – a task the plaintiff has failed to successfully carry out.[29]
[29]T65
306 In Meadows v Lichmore Pty Ltd,[30] Maxwell P set out the two-step manner in which I ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[30](supra) at paragraphs 21-22
307 Counsel for the defendant relied heavily on Professor Brazenor’s view that the prolapse had healed and therefore, had been an improvement in the plaintiff’s condition. Professor Brazenor found inconsistencies on examination and noted there were a number of examination findings which could not be explained on medical grounds.
308 On the basis of this opinion, it was submitted that “now the mystery in this case is that the plaintiff’s symptoms as reported have remained essentially unchanged in the face of this healing”.[31]
[31]T22
309 However, the majority of medical practitioners who have examined the plaintiff since 2013 did not share Professor Brazenor’s view of recovery, and whilst acknowledging some resolution of the prolapse, considered the 2013 investigations and the plaintiff’s clinical presentation continue to provide an explanation of his ongoing complaints and disability and correlate with an organic injury.
310 Further, whilst some of these examiners note non-organic or psychological features on examination, I am satisfied the preponderance of medical evidence supports a substantial organic basis.
311 Whilst Professor Brazenor thought the disc had healed and the plaintiff had recovered, he in fact attributed future work restrictions to the loss of the L5-S1 disc as an elastic shock absorber – an organic explanation, and he did not express any view that this condition was non organic or functional in nature.
312 Dr Adrianakis, who has treated the plaintiff since November 2010, reported in April this year that the plaintiff continues to struggle with pain and disability. He has not noted any significant improvement in the plaintiff’s condition since the incident. This history was noted by all other treating practitioners and medico-legal examiners.
313 Professor Bittar noted the 2013 MRI demonstrated some collapse of the L4-5 disc, with a reduction in the size of the prolapse, and that there was a mild to moderate degree of subarticular stenosis at that level. On the basis of his direct interactions with the plaintiff, he disagreed with Professor Brazenor that the prolapse had now healed, and he thought the plaintiff remained significantly disabled and symptomatic from low back pain.
314 Whilst noting the disc prolapse had reduced substantially in size, Mr D’Urso thought the plaintiff was symptomatic with L4-5 disc disease with subarticular L5 nerve root impingement. He considered there appeared to be evidence of significant degenerative progression of the plaintiff’s condition and that consideration should be given to an L4-5 fusion in these circumstances.
315 Having seen the 2013 MRI, Mr de la Harpe diagnosed degenerative back disease with probable subarticular recess narrowing and nerve root compression. Following examination, he offered the plaintiff an L5-S1 epidural injection.
316 Professor Bittar, Mr D’Urso and Mr de la Harpe did not mention any non-organic features in the plaintiff’s presentation on numerous examinations nor did Dr Vivian, who thought the plaintiff’s pain was derived at least from the L5‑S1 disc, and that there were a number of anatomical explanations for persisting mild leg pain.
317 Although he noted the plaintiff provided an “agonising history” and also thought the plaintiff was suffering an Adjustment Disorder with ongoing depression, occupational physician, Dr Middleton, thought the plaintiff’s leg pain was discogenic in origin, noting the protrusion having partially resolved.
318 Whilst Dr Roberts found some non-organic signs and psychological factors in the plaintiff’s presentation, he thought the diagnosis appeared to be that of chronic low back pain with referred pain and an underlying left L5 radiculopathy associated with longstanding degenerative disease of the spine and discs associated with an apparent exacerbation. He suspected there was some underlying sensitisation that had occurred in the absence of any underlying psychiatric diagnosis.
319 Dr Roberts did not consider the plaintiff’s presentation came within Professor’s Mendelson’s description of learned pain behaviour.
320 In May 2012, Mr O’Brien thought the plaintiff’s underlying pathology remained discogenic in origin with no signs of specific L5 radiculopathy.
321 In April 2013, Dr Wyatt noted the plaintiff had a strong focus on his limitations when examined. There were no objective findings of ongoing radiculopathy She found a number of non-organic signs and thought the plaintiff’s presentation had been compounded by a Mood Disorder. However, she thought it seemed sensible to assume there was a continuing back problem.
322 Whilst Dr Yong initially reported that there was an L5-S1 disc prolapse without any significant neurocompression, having seen the 2013 MRI, on review of his notes, he accepted there was also some degeneration in the lumbar spine. On re-examination, he thought Waddell’s signs seen on previous examination appeared to be resolving, and made no comment as to any relevant non-organic factors in the plaintiff’s presentation.
323 Whilst I have given some consideration to the plaintiff’s injury when analysing the basis of his present condition, it is the impairment not the injury that is the relevant issue for consideration. See Winneke P in Richards v Wylie.[32]
[32](2000) 1 VR 79
324 Any change in pathology or lack thereof is not crucial or determinative of the seriousness or otherwise of the plaintiff’s spinal impairment.
Credit
325 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[33]
“… 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.”
[33](2010) 31 VR 1 at paragraph [12]
326 There was surveillance film shown of the plaintiff on four occasions between 2011 and 2015.
327 Counsel for the defendant submitted the film showed normal activity without the plaintiff showing any obvious difficulty.[34] It was suggested the plaintiff was living a normal life, able to drive and socialise. He did not appear to be suffering constant pain at the level he has described, and his presentation was consistent with improvement in his earlier condition.[35]
[34]T42
[35]T78-9
328 As I indicated to the parties, I did not consider that film advanced the defendant’s position in any way. In my view, whilst he was shown undertaking normal daily activities, none involved significant bending or prolonged postures, and in fact at some times in various films, the plaintiff was shown getting into his car quite slowly and tentatively, as he had described to a number of examiners.
329 Although the plaintiff was shown lifting a suitcase at the airport, having previously said he needed help with his bag, this was not an issue of any significance in considering his credit as a whole.
330 Whilst psychological factors were described on some examinations, no examiner was of the view that the plaintiff was deliberately embellishing or exaggerating his symptoms.
331 Generally, I found the plaintiff a truthful witness. He explained he still got on with activities of his normal life, as he lived alone and often did not have the assistance of his sons. When he did various activities, he would suffer with pain. Further, the plaintiff was not really cross-examined about the extent or his pain or his level of restriction and his evidence in that regard remained largely unchallenged.[36]
[36]T90
332 It was suggested to the plaintiff that his failure to undergo surgical and treatment modalities meant his pain was not as severe as he claimed; however, he explained clearly on a number of occasions he was frightened of undergoing various surgical procedures, he had not been given a guarantee of their success and he had spoken to friends who had undergone similar procedures with little or no success.[37]
[37]T103
Pain
333 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[38]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[38](supra) at paragraph [11]
334 I am satisfied that since the incident, the plaintiff has suffered lower back pain with referred pain into his left leg of varying frequency and severity.
335 Since the incident, the plaintiff has had physiotherapy treatment, which was of little benefit. He has undertaken hydrotherapy and done home exercises.
336 Injections and surgery have been suggested by a number of specialists confirming their view as to the seriousness of the plaintiff’s spinal condition both before and after the 2013 MRI scan.
337 Since the incident, the plaintiff has required various forms of painkilling medication, some quite significant. He presently takes Lyrica, 75 milligrams, one tablet most nights; Endep, 25 milligrams, one and a half tablets;[39] Panadeine Forte, 500 milligrams, between two to eight most days and Temazepam, one at night.
[39]T26
338 As Dodds-Streeton JA noted in Kelso v Tatiara Meat Company Pty Ltd,[40] where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[40][2007] VSCA 267 at paragraph [199]
339 Since the incident, the plaintiff has been restricted in his ability to bend, lift, twist, stand and sit for prolonged periods. I accept these problems are ongoing and there was no activity shown in the surveillance film inconsistent with these ongoing restrictions.
340 The plaintiff has had ongoing problems with sleep due to his back pain, causing him to be lethargic the following day.
341 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[41]
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[41][2010] VSCA 69 at paragraph [45]
342 It was conceded that the plaintiff does not have a capacity for his pre-injury duties,[42] a view supported by all medical examiners. It was not submitted that the plaintiff’s light work back “was not a product of, among other things, the work exposure”.[43]
[42]T59
[43]T69
343 Although the plaintiff trained in electronics in Serbia, his qualifications are not recognised in Australia, and whilst in this country, he has only worked in manual work. He has no clerical or administrative experience and has limited English skills.
344 For this man, the restriction to light work as a result of his ongoing pain and restrictions is a serious consequence.
345 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
346 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
347 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
348 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
349 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
350 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. I am therefore required to determine a “without injury” earnings figure. See Barwon Spinners Pty Ltd & Ors v Podolak.[44]
[44](supra) at paragraph [70]
351 There was no real dispute in this regard with counsel for the plaintiff submitting the plaintiff’s earnings in the relevant pre-injury period were consistently around $60,000.[45] Counsel for the defendant was content with this approach.[46]
[45]T21
[46]T59
352 Sixty per cent of that figure is $36,000 or $692 per week.
353 On the medical opinions relied on by the plaintiff, there are a range of views as to the plaintiff’s work capacity, ranging from no capacity for suitable employment to a capacity for light work on limited hours for a few days a week.
354 Earlier this year, based only on his physical injuries, Dr Adrianakis thought the plaintiff could not do any of the jobs set out in the 2012 vocational report for any meaningful time.
355 As at December 2010, Mr Barrett noted the prognosis for disc ruptures of this severity was poor and had a minimal capacity to heal. Like all other practitioners in this case, he considered the symptoms would prevent the plaintiff returning to heavy physical work in the future.
356 Mr D’Urso thought that the plaintiff did not have a capacity for pre-injury or unrestricted work. He considered he may have some capacity for part-time light work three hours a day, three days a week, but he recommended permanent restrictions with any work involving repetitive bending, twisting or lifting activities and imposed a 10-kilogram lifting limit and limits on sustained posture, together with the capacity to ambulate freely.
357 Professor Bittar considered the plaintiff had a physical capacity to undertake very sedentary duties, probably at most for two to three hours a day. In practical terms, he thought the plaintiff was totally incapacitated for work on a permanent basis. Noting that the plaintiff remained significantly symptomatic and disabled, he thought he would have difficulty with the roles of pathology courier, parking officer and truck driver. Having little information about the job of electronic assembler, it was impossible for him to comment as to the plaintiff’s capacity, even for a few hours a day in that role.
358 Mr de la Harpe thought the plaintiff had a very limited capacity to return to alternative duties.
359 Occupational physician, Dr Middleton, thought, from a purely physical view, the plaintiff may be able to work between two to four hours a day, three to four non-consecutive days per week on restricted duties with a 5-kilogram lifting limit.
360 Dr Roberts thought sedentary work was a theoretical possibility, but noted the plaintiff did not have training or qualifications in that field.
361 Dr Vivian considered the plaintiff unfit for work that involved physical activities. Any work, even a simple sedentary job, would increase the plaintiff’s disability and pain.
362 Dr Sullivan thought the plaintiff had extremely limited potential for vocational rehabilitation, given his limited education, English and skillset. The chances of rehabilitating to return to the workforce were negligible.
363 In terms of the defendant’s evidence, in May 2012, Mr O’Brien noted the plaintiff considered himself totally incapacitated and that attitude would result in an inability to return to the workforce.
364 Occupational physician, Dr Wyatt, thought, in April 2013, that the plaintiff did not present as having a capacity for suitable employment at least for the next few years.
365 Dr Yong considered the plaintiff had a capacity for light work on a graduated return to work program, initially four-hour shifts three days a week, which could increase to pre injury hours within six months. He thought the jobs of sales assistant, hand packer and cleaner would be too heavy for the plaintiff and the job of motor vehicle parts sales or interpreter required individual assessment.
366 Professor Brazenor thought none of the jobs identified in the 2012 vocational report were suitable for the plaintiff. However, he considered the plaintiff was fit for full-time work in which he would be asked to do repeated bending at the waist, repeated accessing of levels below his waist or lifting weights in excess of 20 kilograms.
367 I do not accept the plaintiff has a capacity for work of any nature on a full-time basis. Further, I do not accept the submission by counsel for the defendant that there are a “wealth” of jobs open to the plaintiff, given his retained functional capacities on organic grounds.[47]
[47]T73
368 No job suggested by the vocational assessors have been accepted as being suitable without further assessment as Dr Yong described.
369 In this regard, counsel for the plaintiff relied upon the decision of the Court of Appeal in Giankos v SPC Ardmona Operations Ltd.[48]
[48][2011] VSCA 121 at paragraph [115]
370 Where there is a prima facie case the plaintiff cannot work in any particular vocation, strongly supported by his treaters, there is an evidentiary onus cast upon the defendant to show that there is such a job suitable for him. As no practitioner has found any of the suggested job to be suitable, it was submitted the defendant had failed to discharge this onus.[49]
[49]T92
371 In my view, the amount of work the plaintiff may be able to attempt in the suggested roles or in any other alternate employment would be minimal, not more than a couple of hours on alternate weekdays, given his unreliable attendance as a result of ongoing pain and restrictions.
372 In these circumstances, I am not satisfied that the plaintiff has a capacity for suitable employment such that he would earn in excess of $692 per week. Accordingly, he has suffered the requisite loss of earning capacity of 40 per cent.
373 I am satisfied this loss is permanent, as there is no indication the plaintiff’s spinal condition is likely to improve in the foreseeable future. Further, his attempts to return to light work were unsuccessful.
374 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
375 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
376 Having satisfied the test laid down by the Act in relation to loss of earning capacity, then the plaintiff is at large to make a claim for damages; ie both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[50] and Advanced Wire & Cable Pty Ltd v Abdulle.[51]
[50](supra) at paragraph [147]
[51]Supra
377 Accordingly, I grant leave to the plaintiff to bring proceedings for both loss of earning capacity and pain and suffering.
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