Jeffery v TAC
[2011] VCC 1457
•14 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05435
| GRAEME JEFFERY | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 and 5 December 2011 |
| DATE OF JUDGMENT: | 14 December 2011 |
| CASE MAY BE CITED AS: | Jeffery v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1457 |
REASONS FOR JUDGMENT
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SUBJECT – TRANSPORT ACCIDENT – Serious injury
CATCHWORDS – Impairment to the lumbar spine
LEGISLATION CITED – Transport Accident Act 1986, s.93
CASES CITED – Richards v Wylie (2000) 1 VR 79 – Humphries & Anor v Poljak [1992] 2
VR 129; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Co Pty Ltd (2007)
VSCA 267.
JUDGMENT – Leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC with | Moores Legal |
| Mr J Valiotis | ||
| For the Defendant | Mr J Moore QC with | Hall & Wilcox |
| Ms R L Kaye | ||
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 22 September 2004 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to subparagraph (a) relied upon by the plaintiff is the lumbar spine.
4 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
6 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
7 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross-examined. The plaintiff’s friend, Kevin Donovan, swore an affidavit on 29 July 2011 and another friend, Albert Keen, swore an affidavit on 1 August 2011. Dr Wilk was required for cross examination. 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
8 The plaintiff is presently aged fifty nine, having been born in April 1952.
9 The plaintiff is a qualified motor mechanic and holds a Certificate IV in Training and Assessment.
10 As at the said date, the plaintiff had been working at Raytheon Australia Pty Ltd (“Raytheon’) for four years as a technical trainer and was engaged to provide both onsite and external technical training in automotive logistics. His duties included the setting up of vehicles for training purposes. He worked in excess of forty hours per week.
11 On the said date, the plaintiff was the driver of a vehicle, in which his wife and children were passengers, which was involved in a collision in Ferntree Gully Road, Oakleigh, when another vehicle, running a red light, collided directly into the side of his vehicle (“the 2004 accident”).
12 The plaintiff lost consciousness on impact and understood, as a result of the collision, his vehicle spun out of control into a brick fence.
13 The plaintiff deposed he had suffered post concussion syndrome, a partial tear of the supraspinatus tendon and injury to the left shoulder joint, a tear in the left acetabulum labrum and marginal subchondral cysts in the femoral head of the left hip and a disc bulge at L4-5 with mild posterior displacement of the L4 nerve root.
14 The plaintiff understood that in the 2004 accident his body was twisted with his head in his wife’s lap and his lower back was under substantial pressure as it was trapped between the pillar and central console. The plaintiff had to be cut out of his vehicle.
Treatment
15 The plaintiff was conveyed by ambulance to the Emergency Department at Monash Medical Centre. He has no recollection of the accident circumstances.
16 On 23 September 2004, the plaintiff was discharged, despite experiencing ongoing abdomen and lower back pain, in order to attempt to recover at home with the assistance of pain medication. He was instructed to return to the hospital if the pain continued.
17 On 25 September 2004, the plaintiff saw his general practitioner, Dr Abeysinghe, as he was suffering from a severe headache with swelling to his neck and chest. His neck movements were also painful and restricted.
18 On 29 September 2004, the plaintiff again consulted his general practitioner as his neck pain had not eased and he was experiencing shoulder pain. His pain was making it difficult to concentrate.
19 On 1 October 2004, the plaintiff returned to Dr Abeysinghe as he was suffering abdominal pain. The following week the plaintiff reported pain across the back of his chest and scapula and he was referred by Dr Abeysinghe to Mr Wynne, physiotherapist, for treatment.
20 The plaintiff commenced physiotherapy on 15 October 2004 and continued treatment on a regular basis to his back, neck and hips until 2008.
21 On 18 December 2004, the plaintiff attended Dr Abeysinghe regarding ongoing pain in his left shoulder which was not improving with physiotherapy. Investigations revealed a partial tear of the supraspinatus tendon. On 7 January 2005 the plaintiff was treated with a cortisone injection to the shoulder joint .
22 In April 2005, the plaintiff was referred to Mr Paxinos who ultimately undertook left shoulder surgery in July 2005. While the symptoms in his shoulder were alleviated somewhat after that surgery, the plaintiff continued to experience lower back and groin pain.
23 On 6 August 2005, the plaintiff consulted Dr Abeysinghe due to continued lower back pain radiating to both hips. An MRI scan revealed a tear in the plaintiff’s left hip.
24 The pain in the plaintiff’s hip worsened despite ongoing treatment and he also began to experience pain when rotating his left leg. On 16 April 2006 the plaintiff consulted Dr Abeysinghe. The plaintiff continued to attend physiotherapy and hydrotherapy, however, he found his pain was not improving.
25 On 5 August 2006, the plaintiff saw Mr David Young, orthopaedic surgeon, for evaluation and treatment of his left hip and groin pain. In the following January, Mr Young performed a left hip arthroscopy.
26 An MRI scan of the plaintiff’s lumbar spine revealed a disc bulge at L4-5 with mild posterior displacement at the L4 nerve root.
27 On 30 July 2008, the plaintiff consulted Dr Wilk for assessment and management of ongoing chronic lower back pain on referral from Mr Young.
28 Dr Wilk attempted treating the plaintiff with a number of injections to the muscle attachments at the pelvis. He also performed medial branch blocks of the facet joints in the plaintiff’s lower back. However, there was no substantial relief of the plaintiff’s pain.
29 On 22 September 2009, the plaintiff returned to see Mr Young due to increased pain in his left groin, buttock and leg.
30 As a result of his ongoing chronic low back pain, Dr Wilk referred the plaintiff to Mr Chan, neurosurgeon, whom the plaintiff first consulted on 12 October 2010.
31 Mr Chan arranged for an MRI scan of the plaintiff’s lumbar spine on 29 October 2010. The plaintiff returned to see Mr Chan on 7 December and was advised at that time to continue with pain management with Dr Wilk and to undertake a graduated exercise program.
32 In about June 2011, Dr Wilk referred the plaintiff to Mr Bruce Gilmore, physiotherapist, for dry needling to his lower back. The plaintiff gained some relief in his symptoms following the treatment. He tries to exercise at home on his exercise bike. However, this causes increased pain in his left buttock.
33 The plaintiff deposed he had tried many different modalities of treatment in an effort to alleviate the symptoms in his lower back and cope with that injury. However, despite his efforts he continues to suffer daily pain and muscle spasms and to be limited in his activities.
34 The plaintiff understands that if his lower back pain continues to progress, he may require a spinal fusion at L5-S1.
35 In re-examination, the plaintiff confirmed the main focus of physiotherapy to 2008 was his lower back and hip. The injections were painful but he submitted himself to this treatment to try and find out exactly the root cause of why he was having continual back pain.
Return to Work
36 In his first affidavit, the plaintiff deposed after a period of recovery he commenced a gradual return to work on modified duties and had not been able to return to the level of hours he was working prior to the 2004 accident. He had a very sympathetic employer who had provided assistance and modifications where necessary to enable him to keep working. His employer had arranged for assistance in moving equipment and furniture and provided an ergonomic chair. Further, the plaintiff was not required to travel long distances due to the pain he experienced with prolonged sitting.
37 In his second affidavit, the plaintiff deposed it was becoming increasingly more difficult to do his job. He suffered daily pain affecting his lower back. He continued to have difficulty standing and sitting for prolonged periods of time at work.
38 The plaintiff also continued to experience difficulty lifting and bending and he required assistance at work to prepare for classes. On most days, by the time he had finished work, the plaintiff was suffering increased lower back pain and associated fatigue.
39 In cross examination, the plaintiff confirmed that after the 2004 accident, he went back to exactly the same job and the same work arrangements. He did the same amount of country driving.
40 The plaintiff agreed this situation working nine and a half hours a day was contrary to his affidavit in which he described being unable to return to his pre accident working hours.
41 In re examination, the plaintiff said there had been, in fact, minor changes in the plaintiff had been unable to work the extra five hours a week he was required to work in addition to his normal forty hour week.
42 When he does work these additional hours he gets help with his duties from fellow workers. He loves his work but cannot attend to the extra five hours because of the limitations caused by his back injury.
The Suitcase Incident
43 The plaintiff was cross examined about a work trip to Tasmania in July 2009 when he hurt his back manoeuvring a suitcase (“the suitcase incident”).
44 The plaintiff agreed he had the capacity to manoeuvre up to twenty seven kilograms until that date and he was doing that task alone. He did not always load and unload the work equipment by himself, but sometimes he did.
45 Following the suitcase incident, the plaintiff was put off work for a few days. He agreed that incident had resulted in an ongoing worsening of his low back symptoms, but he had problems prior thereto and his back had always been bad.
46 The plaintiff agreed he had not told any of his doctors about the suitcase incident.
47 In re examination, the plaintiff said he did not feel there was any point telling doctors about the incident, as he had already been told there was not much they could do for him and the medication was probably the only means of controlling the condition.
48 Since September 2004, the plaintiff had had flare ups of his back and he regarded the suitcase incident as part of an ongoing problem.
Work Solutions
49 The Work Solutions’ assessment in September 2009 was instigated by Raytheon following the suitcase incident.
50 The plaintiff agreed he told Work Solutions he was having problems driving for more than three hours at a time and that was because of both his knee and back.
51 Country trips could take up to five hours and he did perhaps four or five in 2005-06. No change has been made to the plaintiff’s driving duties following the 2004 accident.
52 The plaintiff agreed that occasionally he was required to do the duties in the Work Solutions job description namely substantial amounts of manual handling, transportation of training equipment and adopting awkward postures.
53 The plaintiff agreed there were no medical restrictions on his duties before the Work Solutions assessment. He was working from 7am until 4-4.30pm.
54 The plaintiff confirmed that he had a number of days off work for his back condition certified by Dr Abeysinghe and he had also taken a couple of personal days’ leave.
55 Following the Work Solutions assessment, the plaintiff was given a better ergonomic chair. The suggested changes in scheduling that required less changes of classroom furniture had not been implemented. The plaintiff agreed it was suggested trainees should give him assistance in re-locating furniture. This had occurred to the plaintiff between 2004 and 2009 and he had sought such assistance in that period so Work Solutions was not suggesting anything new.
56 The plaintiff has not gone to Tasmania since the assessment. He had not complained of difficulties travelling to Tasmania before the suitcase incident as he was frightened he would lose his job.
57 The plaintiff has not been provided with a new lumbar support in the car. Rest breaks were suggested but the plaintiff agreed he required breaks because of his knee, but not as frequently as he did for his back.
58 In re examination, the plaintiff explained that he was very cautious and mindful about making any complaints at work before Work Solutions became involved. He thought if he lost his job he would be unemployable. He was able to manage most of his tasks by himself before the 2004 accident. Thereafter, because of increased levels of pain and the issues with lifting, he started to need assistance.
59 Following a fall at work in December 2010, the plaintiff’s employer became concerned about his safety and thereafter insisted that he have someone escort him on the premises due to the risk of further injuring himself.
60 In cross examination, the plaintiff agreed his employer did not actually get someone to escort him around the factory. There just had to be someone there when he was working in case he had a fall. He did not have an escort when he travelled around the state.
61 In cross examination, the plaintiff confirmed his right knee sometimes gives way and has caused him to fall occasionally. He agreed he had fallen down the steps at work, but said it was hard to say it was because of his knee because he did not feel it give way. He felt his heel caught on the step. The plaintiff then agreed the reason he would be falling at work was because of his knee.
Work Future
62 In 2005, the plaintiff stated that he was concerned about being forced to retire earlier than he expected and he was concerned that his knee injury would cause him great difficulty in his professional career in the future.
63 In his first affidavit the plaintiff deposed that, due to the injuries to his back, shoulder and hip, he believed it would be very difficult for him to find employment other than with his current employer. He believed those injuries would make it very difficult for him to undertake work in the future.
64 In cross examination, the plaintiff ultimately agreed there was not a problem with his employment future. He confirmed that he had not been told that he was not secure in his job and nothing had been said to him about his job future. He said recently there had been more pressure put on him with assessments of his work and not being allowed in the building by himself.
65 The plaintiff confirmed he had been in his job for a very long time and was obviously very good at his work and an asset to his employer, and all signs were that he would be there “until stumps.” The plaintiff agreed a job had been set up specially for him and he was managing it pretty well.
66 Much of the cross-examination focussed on a comparison between the plaintiff’s situation in 2005 (described by him in a statement that year) following the 1999 accident in which he injured his knee and the affidavits sworn in support of the present application and the plaintiff’s viva voce evidence.
Sleep
67 In 2005, the plaintiff stated that his knee injury disturbed his sleep and woke him.
68 In his first affidavit, sworn on 18 July 2010, the plaintiff deposed he found it difficult to sleep on his left side due to constant pain and his sleep was often interrupted and he had to take sleeping tablets. He continued to experience difficulty lying on his left side due to the ongoing pain in his left shoulder.
69 In his second affidavit sworn on 21 October 2011, the plaintiff deposed he found it very difficult to get comfortable in bed and, as a result, his sleep was disturbed each night. He continued to experience difficulty lying on his left side due to ongoing left shoulder pain
70 In cross examination, the plaintiff said that he had problems sleeping because of his hip pain, not his shoulder. Since the 2004 accident he needed sleeping tablets because of both his back and knee condition.
71 The plaintiff agreed there was not much difference in the description of sleep problems in his statement and affidavits.
72 In re examination the plaintiff described how before 2004, his knee pain caused him to wake up, get out of bed and walk around several times a week.
73 The plaintiff’s low back pain wakes him most nights and he can be awake for several hours. Every night, he experiences spasms across his lower back and can feel his back pulsing while he is lying in bed. Sometimes he is awake half the night. His back is the most significant problem in terms of his sleep.
74 The plaintiff has been taking sleeping tablets in the last twelve months because of his back pain.
75 It is now harder for the plaintiff to get going in the mornings and sometimes when he gets up he gets a knife stabbing pain in his back.
Sexual Relations
76 In 2005, the plaintiff stated his knee problem had impacted on his sex life and problems had affected his marital relationship.
77 In his first affidavit, the plaintiff deposed he found it difficult to engage in normal sexual relations and that caused him significant frustration. In his second affidavit he deposed the physical part of his relationship with his wife was greatly restricted by his lower back injury.
78 In cross examination, the plaintiff initially disagreed nothing had changed in terms of his sexual relationship because of his back condition but then agreed his relationship was about the same.
79 In re examination, the plaintiff explained that as most movement comes from the pelvic area, there is much further restriction with his back condition compared to his knee pain.
Mechanic Work
80 In 2005, the plaintiff stated the 1999 accident had forced a change of career. Prior thereto he repaired motor vehicles which was a career he very much enjoyed, in particular the challenge of diagnosing a problem with a vehicle and then fixing problems.
81 Work as a mechanic was very physical, requiring repetitive bending and squatting, and he could no longer undertake this type of employment because of his knee condition.
82 In his second affidavit, the plaintiff deposed, as a result of his back injury, he had had difficulty continuing to service cars and do mechanical repairs. He confirmed that task gave him a huge buzz and a lot of pleasure.
83 The plaintiff deposed he performed mechanical repairs and service the cars of family and friends. He sometimes did this in exchange for a friend’s assistance around his house, such as plumbing, rather than accept payment.
84 In cross examination, the plaintiff agreed that his knee alone would have very much slowed him down in helping his mates repair their cars. He agreed he lost the enjoyment of diagnosing problems with cars before the 2004 back injury.
85 The plaintiff explained there was a further degree of restriction caused by his back in terms of the amount of mechanical work he could help with. He agreed his knee in its own right was a substantial restriction.
86 In re examination the plaintiff said he had minor problems putting faults in cars, moving equipment and furniture before the 2004 accident. He could still do minor repairs, but he is now further restricted because of his back.
87 The plaintiff did not believe he had done any repair/servicing work since 2004. He was pretty upset this was the case because it was something he enjoyed absolutely. His ability to do these tasks has been compromised quite severely because of his back and restrictions bending, problems which he did not have before 2004 when he could lean over a bonnet of a car without any problem.
Handyman Tasks
88 The plaintiff stated in 2005 that prior to the 1999 accident, he undertook many trades. He had renovated his own house and considered himself to be skilled in tiling, concreting, brickwork, timber framing, plumbing and welding. He helped his friends in many of those areas.
89 As a result of his knee injury, the plaintiff had a great deal of difficulty undertaking any of those tasks.
90 In his first affidavit, the plaintiff deposed that prior to the 2004 accident, he had considered himself a handyman and regularly performed renovation and repair work around the house with a wide variety of jobs including tiling, painting, fencing and guttering. As a result of his back injury, he now found it difficult to repair, maintain or renovate the house himself.
91 The plaintiff confirmed this situation in his second affidavit. As a result of his injuries, he continued to experience significant difficulty doing any of those activities around the home and, as a result, he now had to pay someone else to do them.
92 In cross examination, the plaintiff agreed that he would have problems with his knee anyway and probably to the point where, because of his knee, he was not tending to do any of those tasks any more.
93 In re examination, the plaintiff explained he had greater difficulty doing these tasks because of his back.
Physical and Sporting Activities
94 In 2005, the plaintiff stated that he was concerned that he was not able to fully enjoy a range of activities with his children, then aged six and eight, as they grew up. This was mainly because of his difficulties with running and flexibility due to his knee. Playing with his children usually resulted in a significant increase in pain.
95 In his first affidavit, the plaintiff deposed that prior to the 2004 accident, he participated in physical activities and sports with his children. As a result of that accident, he found it very difficult to ride a bike with his children or play football with his son.
96 In his second affidavit, the plaintiff deposed he was restricted in participating in sporting activities with his children as a result of his lower back injury and that greatly upset him.
97 In re-examination, the plaintiff confirmed any jarring type sport affects his spine.
98 In 2005, the plaintiff stated that he used to run five kilometres four to five times a week to keep fit and that was no longer possible. He enjoyed camping and bushwalking and had not done so since the 1999 accident.
99 In his second affidavit, the plaintiff deposed he tried to exercise at home on his exercise bike. However, that caused increased pain in his left buttock.
100 In cross examination, the plaintiff explained before he hurt his back he could kick a football with his left foot. He agreed that riding a bike was going to be one of the big problems with his knee. He still rides a pushbike with his children when he is able but he has pain in his buttock using the exercise bike at home.
101 In re-examination, the plaintiff said he could not remember when he last got on a pushbike. The problem riding is mainly with his back.
102 The plaintiff agreed that in July 2008 he was having problems playing golf due to his lower back. He was then playing nine holes some Saturdays. He agreed he stopped playing after the suitcase incident after which he agreed things were a lot worse.
103 In re-examination, the plaintiff explained that he could still play golf after 1999 but his knee did provide limitations. He was playing eighteen holes about once a month using an electric self driven buggy for his clubs. By 2008 he was playing only nine holes three to four days a year. If it were not for his back, he believed he would still be playing golf now.
104 The plaintiff could not recall when he last played bowls as it was that long ago.
105 In re examination the plaintiff described how he could hit a tennis ball with his children and practise with them before the 2004 accident but not thereafter.
Restricted Movements
106 In 2005, the plaintiff stated that as result of his knee injury, he was limited in his ability to squat and could not kneel without causing pain and suffering.
107 In cross examination the plaintiff confirmed this was the case and that had been the situation pretty well right up until the present. The only difference was his knee had probably got worse with time and it was more painful to squat so he avoided it if he could. He had never said he could not flex his knee because he does not believe in the word “can’t”.
108 The plaintiff confirmed that he still had problems with his knee if he was required to stand in the one spot and that problem was worsening.
109 In his first affidavit, the plaintiff described finding it difficult to walk long distances. He had gained weight since the 2004 accident due to pain levels and limitation of movement. He found it very difficult to bend down to tie his shoelaces or put on his shoes.
110 In his 2005 statement, the plaintiff described instability in the knee joint and clicking and grinding. His pain could be at its worst when he was required to sit for long periods. For example, if he sat in the car for a couple of hours or more he found it hard to walk. When he got out of the car it could take several minutes to loosen up. He could not sit with his knee bent for lengthy periods and had to sit with his legs straight.
111 In his first affidavit, the plaintiff deposed his sitting tolerance was reduced due to the pain in his lower back.
112 In cross examination, the plaintiff agreed in June 2005 he said he had problems sitting for long periods of time with his knee.
113 The plaintiff explained he now frequently moves out of his chair because of his back pain. That pain like his knee pain limits the amount of time he can sit. . He agreed it was still the case he could not sit with his knee bent for lengthy periods and his knee pain when sitting was probably getting worse.
114 In cross examination, the plaintiff agreed that the description of his back problems with prolonged sitting and driving to Mr O’Brien would have been the same with his knee but problems sitting are much more severe because of his back.
115 In re-examination, the plaintiff explained that both the knee and back contribute to problems driving. The knee was just an ache and would get very sore and he needed to get out of the car and have a three or four minute walk to relieve it. His lower back gets to the point where it forces him to get out of the car, whether he wanted to or not, and he had difficulty sometimes standing up out of the car and straightening his back. He got knife-like stabbing pains in his lower back when he tried to stand up. He required more frequent stops on a trip to Albury because of his back.
116 In cross examination, the plaintiff agreed that, to a point, he was very much restricted with various activities even without his back injury. He agreed it seemed he had a much wider range of activities before the suitcase incident and work was a lot easier and there was less discomfort. Most of the time he had better times and better opportunities of doing things with his children.
117 In cross examination, the plaintiff agreed he had been living with the consequences of his knee injury for the last twelve years or so and it stopped him working as a motor mechanic.
118 The plaintiff agreed that the knee problem and series of operations would leave him with a pretty serious ongoing set of symptoms and restrictions. He agreed he had been advised he would probably be a candidate for knee replacement sooner or later.
119 The plaintiff agreed he had had a nuclear bone scan of his knee in 2010 and there were signs of an uptake indicating problems. Mr Young mentioned surgery in the form of a knee replacement when the plaintiff’s condition worsened but he did not put a time frame on it.
120 Things were slowly getting worse in relation to the plaintiff’s knee. He agreed it continues to grind and clunk, worse with activity. He has to sit with his leg straight most of the time.
121 The plaintiff was taking tablets for his knee before the 2004 accident reasonably regularly. Over the years, he had taken Naprosyn, Panadol, Panadeine Forte and Nurofen which had been a necessary feature of his life since the knee injury.
122 The plaintiff explained his back pain masked his knee pain. It is more severe so he takes painkillers for his back but they help with his knee pain.
123 The plaintiff described difficulties with pain and mobility in his left shoulder in both affidavits.
124 In his first affidavit, the plaintiff described experiencing severe stabbing pain in his lower back. The pain often radiated down his left leg and, on occasion, down the right. He experienced referred pain into his groin. There was stiffness and irritability in the left hip Medication to manage the pain had unpleasant side effects including vomiting and nausea and the plaintiff had reduced his intake accordingly.
125 In his second affidavit, the plaintiff described constant pain and spasms in his lower back with referred pain down his left leg and ongoing pain in his left shoulder.
126 In re examination, the plaintiff confirmed that his back pain is far worse than his knee pain. Standing for longer periods causes very tight spasms in his left buttock and it makes it very sore.
127 The knee pain is probably worsening, but it is not often severe pain. It is caused by a stumble or twisting on it in a hurry without thinking, or slipping, but after those little flare ups, the pain subsides after about fifteen to twenty minutes.
128 In comparison, the plaintiff’s back pain fluctuates and it worsens horrendously and is debilitating on a regular basis. If he slips or steps down off a step and lands awkwardly or he misreads the step, the plaintiff gets knife like stabbing pain shooting down his back. If he gets a bad flare up, sometimes it will put him in bed for a day to three days. At other times flare ups can last for several hours.
129 The plaintiff’s back pain is 24/7 and it is worse than the knee pain. His back pain wears him down, hence the reason he has sought further assistance trying to get some relief and find out exactly what is happening to him.
Lay Evidence
130 Kevin Donovan swore an affidavit on 29 July 2011.
131 Mr Donovan is a master plumber who has known the plaintiff for over forty years and assisted him with his home renovations over the years.
132 Mr Donovan deposed that prior to the 2004 accident, the plaintiff was something of a handyman. He had renovated and extended his current residence, tiled the bathroom and laundry and fully refitted the kitchen. The plaintiff rarely needed assistance in these tasks.
133 Over the years, Mr Donovan and the plaintiff had developed a mutual agreement. The plaintiff did jobs for him and, in turn, Mr Donovan did jobs for the plaintiff. As a qualified motor mechanic, the plaintiff had serviced Mr Donovan’s vehicles over many years and always done a top class job. However, for a few years now the plaintiff had not been able to service Mr Donovan’s vehicles as a result of his injuries.
134 Mr Donovan had witnessed the deterioration in the plaintiff’s physical ability which had left him in a situation where he now had to pay someone to do the work which, in past years, he would have done himself.
135 Mr Albert Keen swore an affidavit on 1 August 2011. He is a painter by trade and has known the plaintiff for many years.
136 Mr Keen knew the plaintiff renovated his own home, performing most of the tasks which included the most laborious aspects of building. On a couple of occasions the plaintiff asked him for advice regarding interior painting and decorating. He observed the plaintiff had done a great job with the renovation.
137 Mr Keen lives near the plaintiff so he sees him regularly when he walks his dogs. They often talk about different things and on several occasions the plaintiff has mentioned the difficulties he experiences with his injuries, particularly with his back.
138 As a qualified motor mechanic, the plaintiff has serviced and looked after Mr Keen’s vehicles for many years. However, as a result of his injuries, the plaintiff has been unable to continue servicing Mr Keen’s vehicle and he now has to take it elsewhere for service.
139 Over the last five or more years he has noticed that the plaintiff’s house is in need of maintenance. Mr Keen believes the plaintiff has not been able to maintain his house as he once did due to the injuries that he suffered in the 2004 accident. The plaintiff has great difficulty carrying out the same tasks he was capable of doing prior to that accident due to his injuries.
The Plaintiff’s Medical Evidence
140 Dr Abeysinghe first saw the plaintiff on 25 September 2004 after he had been in a car accident on the said date.
141 In his report dated 6 June 2005, Dr Abeysinghe diagnosed post concussion syndrome, noting at that time, the plaintiff currently had no problems relating to headaches or loss of concentration.
142 Dr Abeysinghe also diagnosed soft tissue injuries to the muscles of the neck, back and hips, noting functionally the plaintiff was better with good range of movement having ongoing physiotherapy. He also diagnosed a pain and soft tissue injury to the left shoulder.
143 Dr Abeysinghe noted the plaintiff was never treated or investigated for any degenerative disease in the past. The plaintiff’s knee injury remained at its pre accident level and Dr Abeysinghe did not think the most recent accident had aggravated it.
144 At that early stage, Dr Abeysinghe noted the plaintiff had been having ongoing physiotherapy treatment for his cervical and lower back stiffness. The plaintiff had not been on any medication prior to the 2004 injury and was on no medication at that time.
145 Dr Abeysinghe noted on 6 August the plaintiff complained of lower back pain radiating down to his hips. The plaintiff underwent an MRI scan in September 2005 which showed a mild under surface tear in the left acetabulum labrum and marginal subchondral cysts to the femoral head.
146 The plaintiff was next seen in April 2006 with left hip pain, especially when standing from sitting. He also had pain when rotating his left leg internally. He continued with hydrotherapy and physiotherapy.
147 On 26 June 2006, the plaintiff’s pain in his hip and groin were getting worse, especially when he was standing from sitting, and his back pain was not responding to treatment but in fact seemed to be getting worse.
148 The plaintiff was referred to Mr Young for further evaluation and he performed hip surgery in January 2007 after which the plaintiff continued to have physiotherapy for his back and hip.
149 Dr Abeysinghe noted the plaintiff had not consulted him for any TAC related matter since June 2006.
150 Dr Wilk, musculoskeletal physician, first saw the plaintiff on referral from Mr Young in July 2008. The main presenting complaint on examination was pain across the lower back, spreading to the left upper thigh posteriorly, and also pain in the left groin and scrotum region, which prevented the plaintiff from sitting and walking long distances. He noted the plaintiff seemed to have difficulty sleeping on his left side in bed because of his shoulder.
151 Dr Wilk noted the plaintiff enjoyed playing golf but was having problems with his lower back when playing. The plaintiff felt his best exercise was walking and he was trying to walk most days for exercise. Dr Wilk noted the previous physiotherapy and also a TAC funded gym program. The plaintiff was then taking Naprosyn but that upset his stomach.
152 Dr Wilk noted the various investigations of the right knee, hip, pelvis and lumbar spine from 1998 to 2008.
153 On initial examination, Dr Wilk found the range of lower back movement was reasonable. Movement was associated with pain and there was pain in the left groin on end range left hip movement in flexion and abduction. Neurological examination was normal.
154 On that initial examination the plaintiff’s pain was well localised to the left lower lumbar spine and he was reporting very mechanical type symptoms in the lower back giving him referred pain into the groin and leg.
155 Dr Wilk felt there was some stiffness and irritability of the left hip joint although investigations showed no specific abnormality.
156 Dr Wilk initially tried some injections over the left medial iliac crest of the pelvis but there was only temporary relief from pain. Subsequently, medial branch blocks of the facet joints were performed in March 2009, blocking pain from the L4-5 facet joints on both sides, but there was no substantial relief of the plaintiff’s pain.
157 Dr Wilk referred the plaintiff to Mr Bruce Gilmore, physiotherapist, to see if a change in his exercise program may assist with the repeated catching pains in his lower back. The plaintiff was reporting he was unable to play golf and that walking now was aggravating his pain.
158 Repeated medial branch blocks, this time blocking the L3-4 and L4-5 facet joints were performed in January 2010, but again there was no substantial relief of the plaintiff’s pain suggesting the facet joints were not its main cause.
159 Dr Wilk tried a further injection procedure to the left lower lumbar spine muscles using a small incision, but again there was no substantial relief.
160 When he next saw the plaintiff in April, the plaintiff was still complaining of regular flare-ups and spasms of his back with bending, twisting type motions.
161 On that examination, range of movement of the lumbar spine was somewhat more restricted but hip joint movements were full range and pain free.
162 As of April 2010, Dr Wilk noted that the lower back pain had been persisting since 2004 and there did appear to be some progression and worsening of signs seen on MRI scans between September 2000 and December 2008 suggesting some progression of the problem. Dr Wilk noted the plaintiff, overall, felt he had been getting worse over the past five and a half years so his prognosis must be guarded.
163 Dr Wilk thought the plaintiff then certainly did need treatment and the priorities were high for him to lose weight and do exercise and he proposed a further course of local injections.
164 Dr Wilk thought it difficult to ascertain the reasons for deterioration in the plaintiff’s back condition. Dr Wilk would have expected any disc injury in the lower lumbar spine from 2004 to be stabilised now, but thought it may be that there was some contribution from the plaintiff’s age and increased weight to the recent deterioration. Dr Wilk thought there appeared to be some ongoing contribution from the 2004 injury.
165 Dr Wilk reported again in August 2011, confirming he had reviewed the plaintiff on further occasions, last seeing him in March 2011. The plaintiff had most recently seen Bruce Gilmore in July 2011.
166 Dr Wilk confirmed the plaintiff’s ongoing problems had been with regard to the lower back with pain radiating to the left scrotum/groin region. The plaintiff complained of pain across the lower back with prolonged standing and sitting at work. He was having problems playing golf, with pain across the lower back.
167 Dr Wilk confirmed that when he first saw the plaintiff he considered there were some non specific findings of stiffness and pain across the lower back, consistent with some aggravation of underlying degenerative changes in the lower lumbar spine.
168 Since he last reported, Dr Wilk gave the plaintiff a trial of local injections. Two series of injections were performed and the plaintiff reported after the second that there was a substantial increase in his pain which lasted almost three weeks.
169 Dr Wilk noted a nuclear bone scan of 29 October 2010 and an MRI scan of the lumbar spine of that date.
170 Dr Wilk noted the plaintiff saw Mr Chan who did not recommend surgery but suggested a graduated exercise program. Dr Wilk noted at home the plaintiff was trying to ride an exercise bike but that was giving him some left buttock pain.
171 Dr Wilk referred the plaintiff to Mr Gilmore for a trial of dry needle acupuncture which commenced in June 2011.
172 When Dr Wilk last saw the plaintiff, the plaintiff’s general pain levels had reduced from nine out of ten down to three or four. At that stage, Dr Wilk recommended the plaintiff continue with dry needling.
173 Dr Wilk agreed with the plaintiff’s description of his limitations regarding his employment. He noted the plaintiff was limited in his ability to perform duties involving prolonged sitting or standing and he was not able to bend and lift on a regular basis.
174 Dr Wilk concluded the plaintiff’s condition had been roughly stable over the past two years and there did not appear to be any substantial improvement in his function, although recently he had some pain relief with dry needling.
175 Dr Wilk thought the long term prognosis was guarded and in that period one would expect that the inflammatory end plate changes at the lower lumber spine to gradually settle in time.
176 Dr Wilk confirmed in cross-examination that the plaintiff had not told him about the suitcase incident. Dr Wilk agreed that the type of incident could sponsor symptoms of spinal injury, but then said some people got symptoms from no injury. Further, the plaintiff may have been able to lift something like that without causing injury.
177 Dr Wilk agreed that he was unable to tell from the September 2005 MRI whether the findings at L4-5 were a result of trauma, or otherwise.
178 In the long term Dr Wilk would expect the inflammatory plate changes in the lower lumbar spine to gradually settle with time but he did not know the timeframe. He confirmed the results for fusion surgery for primary discogenic pain were not that reliable.
179 In Dr Wilk’s view, the plaintiff’s condition seemed to have been fairly stable since he started seeing him.
180 In re-examination, Dr Wilk confirmed that since having started seeing the plaintiff in mid 2008, there had been some minor ups and downs but overall nothing much had really changed.
181 In the middle of this year however, the plaintiff did seem to report some improvement with dry needling, but apart from that, nothing much else had really changed his pain and his level of complaints did not seem to have changed greatly over that time.
182 Dr Wilk confirmed that similar types of difficulties were recorded by the plaintiff on both the 5 October 2009 questionnaire and the pain chart in July 2008.
183 The plaintiff had been quite consistent in his range of movement and showed Dr Wilk “sort of what he could do with his low back”. The location of the pain had been very consistent, and when Dr Wilk examined the plaintiff and had a feel around his lower back where he was tender, the tenderness was also very consistent over time.
184 The inflammatory changes diagnosed had not yet started to settle. The recent nuclear bone and MRI scans showed there was still ongoing active inflammation. Dr Wilk could not really give an idea of when the plaintiff’s condition would settle.
Questionnaires
185 A Brighton Spinal Group questionnaire was completed by the plaintiff in July 2008. In that form he rated his worst pain imaginable at eight of ten, describing his pain as stabbing, hot, burning, throbbing and agonising. He said very often he needed to lie down during the day and he had trouble sleeping, and it was very difficult to do his usual sport and recreational activities. On average, he was having one to two painkillers a day.
186 An Oswestry Disability Questionnaire was completed by the plaintiff at Dr Wilk's request in October 2009.
187 In cross examination, the plaintiff said he had made a mistake when he said could stand as long as he wanted without extra pain. He described his pain as being moderate, and that it was painful to look after himself and he was slow and careful. His pain prevented him from lifting heavy objects and prevented him from walking more than two kilometres. He could sit in his favourite chair as long as he liked. Because of pain, he had less than six hours sleep and his sex life was nearly absent. Pain had restricted his social life and he did not go out as often. He could travel anywhere but it gave him extra pain.
188 The plaintiff was referred to Mr Chan, neurosurgeon, by Dr Abeysinghe in October 2010.
189 On the first examination, Mr Chan reported the plaintiff continued to have lower back pain with pain radiating across the left gluteal region into the left hamstring.
190 On examination, tests for non organic signs was negative. The plaintiff had tenderness in the lower back towards the left side. He had moderate restriction of lower back flexion range. Straight leg raising tests were negative and lower limb neurological examination was otherwise normal.
191 Mr Chan noted the December 2008 MRI.
192 In Mr Chan’s view, the plaintiff had mainly mechanical axial lower back pain with somatic referred pain to his left leg. Mr Chan concurred with Dr Wilk that it was unlikely the plaintiff would respond well to neurosurgical intervention.
193 Mr Chan reviewed the plaintiff on 7 December 2010. Mr Chan noted the bone scan showed active uptake at the L5-S1 disc space. The MRI showed retrolisthesis at L5-S1 level, rudimentary S1-2 disc. There was L3-4 and L5- S1 disc degeneration without neurocompression. There was end plate oedema at L5-S1 levels.
194 The dynamic lumbosacral x-ray did not show any instability.
195 Mr Chan confirmed the plaintiff had mainly mechanical axial lower back pain with somatic referred pain to the left leg, possibly contributing by the active L5-S1 disc degeneration. He thought the plaintiff should continue management with Dr Wilk.
196 Mr Chan diagnosed discogenic back pain associated with exacerbation of the underlying L5-S1 disc degeneration with end plate oedema and retrolisthesis.
197 He advised that if more conservative treatment failed, the plaintiff may be offered the option of an L5-S1 instrumental fusion which would require removal of the degenerate L5-S1 disc, interbody fusion at L5-S1 and internal fixation of L5-S1.
198 Mr Chan noted the plaintiff’s lifestyle and vocational limitations included difficulty in sitting and finding a position of comfort while lying down. He noted that was affecting the plaintiff’s sleep pattern as well and also his ability to work as a clinical trainer. Mr Chan thought the plaintiff’s overall prognosis was guarded.
199 Mr Young, orthopaedic surgeon, reported to the defendant, following examination of the plaintiff on 22 October 2008. The plaintiff then complained of increasing low back pain such that it was a sudden crippling attack which would stop him in his tracks, prevent him from continuing to work and require him to lie down to rest.
200 Mr Young advised the plaintiff’s pain occurred at the lower lumbar region. Mr Young noted many of the hallmarks of the pain suggested L4-5 disc pathology, but he thought investigations in 2005 showed minimal changes in that disc. As the plaintiff’s symptoms had significantly deteriorated over the past three years, Mr Young advised repeating the MRI scan to again look for the underlying pathology leading to those incapacitating attacks of low back pain.
201 Mr Young reported to Dr Wilk after an examination in September 2009 when the plaintiff complained of increasing left groin, buttock and gluteal pain, aggravated with walking.
202 Clinically, Mr Young could not fault the plaintiff’s hip, there being an excellent range of movement with negative impingement signs and, importantly, the plaintiff had good strength in his gluteals.
203 Mr Young advised an MRI scan of the left hip suggested some moderate gluteus medius and minimus enthesopathy, but he noted that did not fit the clinical pictures today.
204 Thus, whilst he could perhaps inject the hip to totally exclude that as the source of origin the plaintiff’s gluteal and groin pain, Mr Young was highly suspicious that some of that was referred from the plaintiff’s L4-5 spondylolisthesis.
205 Mr Young wondered whether the time had come to try a cortico-steroid epidural injection and asked for Dr Wilk's view on the plaintiff’s current symptom complex and the way forward.
206 Mr Young advised he was grateful for Dr Wilk's feedback, but as he could not justify arthroscopic intervention for the plaintiff’s hip, he returned the plaintiff to Dr Wilk to sort out the best way of treating the plaintiff’s L4-5 spondylolisthesis.
Investigations
207 An ultrasound of the left shoulder was organised on 21 December 2004 by Dr Abeysinghe.
208 A CT of the cervical spine organised by Dr Rosengarten in September 2004 showed no abnormality.
209 There was no abnormality detected in pelvis x-ray organised by Dr Rosengarten in September 2004.
210 Dr Rosengarten also organised a spine x-ray in two regions. In the cervical spine there was a lucent line through the posterior and inferior aspect of C5. The prevertebral soft tissues were within normal limits and a CT scan was recommended.
211 No acute injury was identified in the thoraco lumbar spine and the vertebral body heights were within normal limits.
212 Mr Paxinos organised an MRI scan of the left shoulder in May 2005.
213 Dr Abeysinghe organised an x-ray of the plaintiff’s hips and a CT scan of his lumbosacral spine in August 2005.
214 It was reported there was no evidence of any significant degenerative disease or trauma in the hips. Alignment overall was satisfactory in relation to the lumbosacral spine. There was no disc protrusion and no posterior or posteriolateral osteophytic ridging. No significant facet joint was seen and the bone texture appeared satisfactory in the lumbosacral spine.
215 Dr Reggars organised an MRI scan of the lumbar spine in September 2005.
216 It was reported degenerative change was noted at L2-3 and L4-5 intervertebral discs. Mild retrolisthesis and broad based disc bulge were noted at L4-5. The disc bulge at that level produced mild effacement of the epidural fat within the neural foramen without evidence of overt compression of the exiting L4 nerve root on that side. No further evidence of neural impingement was seen within the range of the study. Transitional anatomy was noted at the lumbosacral junction with partial sacralisation of the L5 vertebra.
217 There was an MRI scan of the left hip on the same date. It was reported there were early degenerative changes noted in the left hip with thinning of articular cartilages of superolateral aspect of femoral head and acetabulum in association with a small undersurface tear of the acetabular labrum and marginal subchondral cyst formation within the femoral head. There was mild tendinosis of gluteus medius and minimus insertions at the greater trochanter.
218 Mr Young organised an x-ray of the pelvis and left hip in January 2007. It was reported there was moderate degeneration of the left hip. Small acetabular osteophytes had developed. Small impaction cysts were present in the lateral aspect of the femoral head - neck junction. There was also a small subcortical cyst in the right femoral head - neck junction, often seen with internal impingement.
219 Mr Young organised an MRI scan of the lumbar spine in December 2008. It was reported there was transitional lumbosacral anatomy. Grade 1 degenerative retrolisthesis of L4 on L5 and minor broad based disc bulge at that level resulted in mild bilateral foraminal narrowing. There was mild posterior displacement of the L4 nerve roots lateral to the foraminae and no canal stenosis.
220 The MRI scan of the left hip, showed there was moderate gluteus minimus and medius insertional tendinosis. There was mild trochanteric bursitis. There was minor bony irregularity of the anterior/superior aspect of the femoral head - neck junction in the usual position of femoroacetabular impingement without frank bony hypertrophy or evidence of labral tear.
221 Mr Chan organised an MRI scan of the lumbar spine in October 2010.
222 It was reported transitional lumbosacral anatomy was seen with rudimentary S1-2 disc and retrolisthesis at L5-S1. There was two-level (L3-4 and L5-S1) disc degeneration without focal disc protrusion or significant central canal stenosis. Marginal spur resulted in mild bilateral bony foraminal stenosis at L5-S1, worse on the left than the right without definite neural compromise. Degenerate end plate oedema was demonstrated at L5-S1 and there was no evidence of disc infection.
Physiotherapy Treatment
223 The plaintiff attended EBR Physiotherapy for lower back pain, hip pain and neck pain following the 2004 accident. A number of physiotherapy treatment notification plans set out the plaintiff’s treatment program in relation to his neck, thoracic and low back pain.
224 The last of those, dated 20 June 2007, set out the focus of treatment was principally on the lumbar spine. Prolonged postures at work were noted to contribute to the plaintiff’s pain.
225 A TAC print-out dated 18 October 2011 set out payments made to the plaintiff totalling $55,616, including payment for over one hundred physiotherapy attendances relating to treatment until July 2008.
Vocational Evidence
226 Work Solutions carried out an assessment of the plaintiff’s workplace at the request of his employer on 23 September 2009.
227 The purpose of the assessment was to assess the nature and critical demands of the plaintiff’s pre injury duties, establish the work related performance criteria against which his functional capacity was to be evaluated and identify methods of temporarily or permanently modifying the work demands to facilitate a safe return to work.
228 In terms of background information, the 1999 accident was noted and the plaintiff reported a constant ache in the right knee, rating it at three out of ten. The plaintiff was then involved in the 2004 accident after which he rated his left hip joint and ongoing low back pain as three at best and six at worst out of ten.
229 The plaintiff advised he noted his low back and hip symptoms were aggravated by prolonged sitting greater than three hours, bending, walking up and down stairs, lifting more than twenty kilograms from ground level, bending sideways from a seated position, left side lying and driving for periods greater than three hours.
230 The plaintiff reported that on 18 July 2009 he had been returning from a work trip to Tasmania. He needed to take heavy equipment with him as well as personal luggage. As he went to pull a twenty seven kilogram suitcase out of the car, he felt a twinge in his low back which progressively worsened over the following hours (“the suitcase incident”). The plaintiff advised that this incident resulted in an ongoing exacerbation of his low back pain symptoms.
231 The plaintiff’s role was described as an automotive technician involving the provision of training four days a week from 8.30am to 4.30pm. The plaintiff reported he provided onsite training and often travelled and he was required driving to rural locations up to five hours away.
232 Manual handling activities involved moving furniture around the classroom, setting up electrical testing boards, loading equipment into the vehicle, vehicle preparation – placing faults in cars, hoisting vehicles, administrative duties of thirty to sixty minutes a day and driving to locations up to five hours away.
233 The plaintiff reported that at the time of the assessment he had no medical restrictions with regard to his work duties and he experienced difficulties driving for greater than three hours. He did not have a current medical certificate.
234 It was noted the plaintiff’s work duties involved substantial amounts of manual handling, transportation of training equipment and adopting awkward postures in order to perform the manual handling tasks.
235 Some of the possibilities that Work Solutions recommended in order to reduce the likelihood of further exacerbations of the plaintiff’s low back symptoms were:
• the provision of a suitable ergonomic chair for his work station; • efficiencies in scheduling; • assistance of trainees; • assistance with manual handling activities by work colleagues; • avoid flying to Tasmania; • setting up a second classroom; •
the provision of an adequate lumbar support to be used whilst driving long distances;
• the provision of knee guards and cushions; • rest breaks; and • functional education.
The Defendant’s Medical Evidence
236 Mr Brendan Dooley, orthopaedic surgeon, examined the plaintiff on 28 February 2005 in relation to his 1999 knee injury.
237 Mr Dooley noted the plaintiff had made a reasonable recovery but he was still troubled by aching and weakness affecting his right knee. He could not flex it fully. He could not squat or kneel and he was not able to kick a football with his young children.
238 Mr Dooley noted the plaintiff had turned to alternative work from that of a motor mechanic to a technical trainer which was lighter work and did not require heavy use of his right knee with continual bending, kneeling and squatting.
239 At the time of the examination, Mr Dooley recorded that the plaintiff was receiving no physical treatment or other treatment for his right knee. He was having treatment from his local doctor for his left shoulder and was awaiting specialist referral.
240 Mr Dooley diagnosed an acute rupture of the anterior cruciate ligament and medial collateral ligament, in addition to a partial tear of the right medial meniscus.
241 Mr Dooley noted that overall the plaintiff had made a reasonably good recovery but was still troubled by aching, stiffness and weakness affecting the right knee. He thought there was also a possibility that the plaintiff could develop osteoarthritic changes which may ultimately lead to severe medial compartment arthritis, perhaps requiring joint replacement surgery in the future but unlikely to occur for some ten to fifteen years.
242 In Mr Dooley’s view, the plaintiff was permanently unable to return to work as a motor mechanic because of the residual stiffness, aching and weakness affecting his right leg with an inability to squat and kneel on his right knee.
243 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on behalf of the defendant in November 2007.
244 At that stage, the plaintiff reported he continued to experience constant low back pain with pain around the lateral aspect of the left hip. If he lay on his left side or attempted to ride his pushbike, the plaintiff’s left hip pain was aggravated. Prolonged sitting, such as driving for more than an hour, could increase the pain and the pain was quite severe when the plaintiff tried to get out of the car.
245 The plaintiff told Mr O’Brien he continued to have constant pain in the right knee which was restricted in flexion and occasionally gave way.
246 Mr O’Brien noted the plaintiff continued to work fulltime, however he remained restricted in activities that caused bending. He was unable to do any gardening, however he attempted to remain active, riding a pushbike and occasionally playing bowls. He was then taking the occasional Panadeine Forte for pain.
247 On examination, movement of the thoracolumbar spine was restricted by pain and the plaintiff described some mild lumbosacral tenderness. He was capable of active straight leg raising and there were no neurological abnormalities.
248 Mr O’Brien diagnosed symptomatic spondylosis and left hip labral tear.
249 Mr O’Brien noted the plaintiff suggested the problem in his hip related to a labral tear and there had been substantial symptomatic improvement following surgery. Clinically, the plaintiff had a very mild restriction of left hip movement which Mr O’Brien thought would currently indicate very mild intra articular pathology.
250 There were no investigations available in relation to the lumbar spine. Mr O’Brien thought there was certainly now evidence of painful restriction of lumbar movement without any sign of nerve root compression. He thought the most likely situation was that the plaintiff had aggravated lumbar spondylosis secondary to the 2004 accident. He thought the plaintiff’s clinical condition appeared stable and noted he was having weekly physiotherapy with occasional analgesic medication.
251 Mr O’Brien considered the plaintiff was mildly disabled, due predominantly to persistent lumbar symptoms which caused some restriction of his overall activities. However, the plaintiff remained capable of normal employment. Nevertheless, Mr O’Brien suggested there was some restriction of his general activities which would have some impact on his social and recreational pursuits.
252 Mr O’Brien was somewhat guarded in relation to the plaintiff’s prognosis as it appeared likely he would continue to have some persistent back and hip symptoms.
253 Mr O’Brien was provided with an earlier report where there appeared no specific statement in relation to the plaintiff’s back or left hip. If he were to accept the plaintiff’s history, Mr O’Brien thought there was the possibility of back and hip symptoms that related to the 2004 accident.
254 Dr Kevin Fraser, rheumatologist, examined the plaintiff on 13 April 2011 at the request of Hall & Wilcox, solicitors.
255 The plaintiff then complained of persistent back/left thigh pain, worse with movements, particularly leaning to the left. At home he did some work around the house including mowing the lawns. However, because of back pain he had some difficulty with activities of daily living such as showering and tying his shoelaces. His work was not very physical but he still sometimes needed assistance, moving tables and chairs and in setting up faults in cars.
256 On examination, movement of the dorso lumbar spine was somewhat restricted with pain at extremes. Straight leg raising was not restricted and there were no neurological abnormalities.
257 Dr Fraser noted that the plaintiff gave his history in a straightforward fashion and there was no over reaction on physical examination.
258 Dr Fraser thought it seemed the plaintiff had sustained aggravation of pre- existing degenerative changes at various sites, including the left shoulder, left hip and on the spine, as a result of the trauma in the 2004 accident. The left shoulder and left hip pain had largely resolved post operatively except for some mild residual discomfort in the shoulder with overhead use of the arm.
259 In terms of the low back pain, Dr Fraser thought one might argue that any aggravation of age related degenerative changes as a result of the 2004 accident had ceased and that the plaintiff’s present state was no worse than it would have been regardless of that accident. However, Dr Fraser noted there could be no certainty about this and the contrary view was certainly reasonable. In fact, he tended to favour it, particularly in the absence of any over reaction on physical examination and with the improvement at the other injury sites.
260 Dr Fraser certainly concurred with the advice against surgery. He considered continued treatment with analgesic/anti-inflammatory drugs as necessary was reasonable and he thought a self directed water exercise program may also help.
261 Dr Fraser thought the plaintiff was not incapacitated for work as a result of the compensable injury and noted he, in fact, was doing his normal work and had lost minimal time.
262 Having been forwarded further documents by the defendant’s solicitors, Dr Fraser did not change his opinion.
263 A number of medical certificates from Dr Abeysinghe were tendered.
264 Dr Abeysinghe certified the plaintiff was unfit for work due to sciatica on the following dates:
• 27 June to 29 June 2007 • 8 December 2008 • 24 September 2008 • 9 April to 10 April 2009 • 20 July to 21 July 2009 • 23 April to 30 April 2010 • 12 October to 15 October 2010.
Overview
265 I accept that the plaintiff suffered an injury to his lower back in the 2004 accident.
266 Liability was accepted by the defendant and payment of statutory benefits in excess of $50,000 have been made by the defendant to date.
267 The diagnosis has essentially been one of aggravation of pre-existing degenerative disease in the lumbar spine.
268 Whilst Dr Fraser had some doubt as the any ongoing accident related aggravation, in light of the absence of any over exaggeration on physical examination and with the improvement of the plaintiff’s other injuries, he accepted the aggravation from the 2004 accident continued.
269 Much of the focus in this case was on a comparison between the plaintiff’s condition before the 2004 accident involving significant restrictions relating to his right knee following the 1999 accident and his problems since the 2004 accident relating to his back.
270 Whilst this is not an aggravation case per se, similar principles apply.
271 I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2004 incident is serious and permanent.
272 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
273 I accept that overall there has been a general worsening of the plaintiff’s ability to participate in various activities - work, social, domestic and recreational as a result of his back injury.
274 As counsel for the plaintiff submitted, “there is a layer of further decrease of function over and beyond the undoubted function restrictions caused by the right knee.”
275 Clearly the knee injury was significant requiring surgery on four occasions and there is the likelihood of knee replacement in the future. Further, the plaintiff had to give up his career as a mechanic as he was unable to bend or squat due to his knee condition.
276 Also as a result of his knee condition, the plaintiff was restricted in movements such as such as sitting, driving and standing. Sporting pursuits were compromised as was his ability to play with his children. Sleep and sexual relations were affected. The plaintiff’s ability to participate in hobbies such as handyman work and servicing cars for friends was significantly cut back.
277 Whilst there was some criticism by counsel for the defendant of the plaintiff’s more expansive answers in re examination compared to concessions by him made in cross examination, I accept the plaintiff was generally a truthful witness who provided more detail in support of his various back related problems in re examination when given the opportunity to do so.
278 Further, there was no surveillance film or any other evidence challenging the plaintiff’s reported level of back pain and restriction. There was no medical opinion that the plaintiff was exaggerating his condition or that there were any inconsistencies in the plaintiff’s presentation on examination.
Consequences
279 The most significant consequence of the plaintiff’s back injury, obviously unrelated to any pre accident problem, has been continuing back pain and the requirement for treatment on an ongoing basis since the said date.
280 The symptoms which the plaintiff describes in relation to his back are quite severe and disabling.
281 I accept that the plaintiff has continued to suffer a severe stabbing pain in his lower back radiating down his left leg together with spasms in his lower back. There is also referred pain to the left groin and gluteal region and stiffness and irritability in the left hip, despite improvement in that area following surgery.
282 I accept that the plaintiff’s back pain is far worse than his knee pain and flare ups of his back condition are far more debilitating. His back pain wears him down as he continues trying to find a medical cure.
283 As Dodds Streeton JA stated in Kelso v Tatiara Meat Co Pty Ltd (2007) VSCA 267:
“The endurance of permanent daily pain requiring frequent medication must according to ordinary human experience raise a real prospect of a ‘very considerable’ consequence.”
284 While much was made in cross examination of the suitcase incident in July 2009, and the assessment of his duties organised after that incident by Raytheon, it is clear from the medical evidence that the plaintiff’s condition after that incident continued relatively unchanged.
285 Dr Wilk confirmed that the plaintiff’s condition has been quite stable from 2008 and, whilst not told of the suitcase incident, he did not note any significant exacerbation in the plaintiff’s condition around that time. Further, Dr Wilk also confirmed the plaintiff’s complaints of pain and tenderness have been consistent throughout the time he has treated the plaintiff.
286 Further, it is clear from the medical certificates that the plaintiff required only two days off work as a result of the incident.
287 The plaintiff has continued to require treatment for his back pain since the said date. He had physiotherapy and chiropractic treatment until 2008. During that time the majority of the plaintiff’s treatment addressed his lower back problem with over one hundred physiotherapy sessions, increasingly focussed on his lower back.
288 After physiotherapy ceased, the plaintiff’s treatment was then taken over by Dr Wilk, musculoskeletal physician, who has undertaken various medial blocks and cortisone injections, without sustained improvement, in an effort to reduce the plaintiff’s pain.
289 The plaintiff has also undergone dry needling from Mr. Gilmore in mid 2011 which gave him some degree of relief. He continues to take painkillers for his back pain.
290 The plaintiff is not having any ongoing treatment for his knee, save for the benefit he obtains from the painkillers he takes for his back pain.
Work 291
I accept the plaintiff experiences additional problems at work due to his back pain. In particular he now has problems with duties involving bending and lifting.
292
Whilst the plaintiff has had limited time off work due to his back pain, I accept that he has continued working in his normal job with difficulty, having the financial responsibility of supporting his two young children.
293
I accept the plaintiff is a hard working man who has a strong work ethic as evidenced by his return to work both after significant knee problems and in more recent times following his back injury.
294
As Maxwell P said in Haden Engineering P/L v McKinnon (2010) VSCA 69 at para 13, because a plaintiff is stoic he is not to be viewed any less favourably because he managed to remain more active than might be expected given his level of pain.
295
Whilst his job may not be under threat as his affidavits suggested, I accept that if the plaintiff lost his present job, he may have difficulty finding similar work in as supportive an environment as the one he presently enjoys.
Other Consequences
296 Although at one stage in cross examination the plaintiff agreed that his back injury did not result in a further problem with his sexual relationship, I accept that with his lower back injury and pelvis pain he does experience additional problems in this regard.
297 Added to his sleeping difficulties associated with his knee condition, the plaintiff has more interrupted sleep due to back pain such that he often is kept awake by pain and at times is awake half the night.
298 The plaintiff has also required sleeping medication in the last twelve months because of his back pain.
299 The additional problem with bending relating to his back injury has further restricted the plaintiff in his ability to undertake household handyman tasks and assist friends servicing their cars.
300 There is the also additional significant problem with driving and prolonged sitting described by the plaintiff in re examination.
301 The plaintiff’s ability to participate in physical activity is further curtailed by his back condition. He is more restricted in his interaction with his children. He can no longer play even nine holes of golf and he cannot have a hit of tennis with his children.
302 When considering whether the physical impairment is serious, I am also entitled to take into account, as President Winneke set out in Richards v Wylie (supra), the expected emotional consequences of the plaintiff’s back injury. I accept that the plaintiff’s back pain and associated restrictions cause him anxiety and frustration.
303 As I am satisfied that the pain and suffering consequences of the back injury are serious, it is beside the point that the plaintiff’s knee condition might also have satisfied the tests by reason of its pain and suffering consequences – per Ashley JA in Dressing v Porter at para 48.
304 I accept the plaintiff’s back has been chronically painful for over seven years. There is no medical view that this situation is likely to improve. Accordingly I accept the plaintiff’s back impairment is long term.
305 Taking into account all the evidence, I am satisfied the plaintiff has a long term serious impairment of his lumbar spine.
306 Accordingly, I grant the plaintiff leave to bring proceedings for damages in relation to 2004 accident.
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