Jeffrey v VWA
[2019] VCC 1230
•13 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04982
| ALLAN JEFFREY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2019 | |
DATE OF JUDGMENT: | 13 August 2019 | |
CASE MAY BE CITED AS: | Jeffrey v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1230 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application - injury to lumbar spine - pain and suffering
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:Hunter v TAC & Anor [2005] VSCA 1, Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J. Frederico | Maurice Blackburn |
| For the Defendant | Mr B. McKenzie | Minter Ellison |
HER HONOUR:
1 The plaintiff applies under s.134AB(16)(b) of the Accident Compensation Act 1985 (Vic) for leave to issue proceedings for pain and suffering only[1] flowing from the injury to the lumbar spine suffered during the course of employment as a bus driver with L C Dyson’s Bus Services Pty Ltd (“Dysons”) between 2009 and October 2010. The injury is by way of aggravation of pre-existing and symptomatic lumbar spine degeneration. The plaintiff says that the pain and suffering consequences of that aggravation meet the test for serious injury, because he lost a longstanding job he loved and can no longer work at all; has suffered increased pain and restriction of movement, has to take more medication than before; has less involvement in the community, which he loved; and is less able to engage in recreation.
[1]The plaintiff’s application proceeded as a claim under sub-paragraph (a) of the definition of ‘serious injury’ in s 134AB(37) only, as the application under sub-paragraph (c) of the definition was not pursued at the hearing.
2 The defendant says that the plaintiff has not established the permanence of any aggravation suffered during the course of employment between 2009 and October 2010. Secondly, while conceding that as at the date of the hearing, the plaintiff has a serious lumber spine injury, the defendant says that the plaintiff suffered earlier injuries to the lumbar spine in 1986 and 1996. The symptoms arising from the 1986 injury (flowing from a disc prolapse at L5/S1 affecting the left S1 nerve[2]) were sufficiently severe to require surgery by way of laminectomy in about 1988[3].
[2]See CT scan reported on 23 October 1986 at PCB, p130.
[3]The exact year of the surgery is not clear. In his affidavit sworn 30 May 2018 (PCB, p 15) the plaintiff states the surgery took place in 1988, however, there are also references in the material to other years of the 1980s.
3 The plaintiff commenced working for the defendant in June 1993. Two lifting incidents[4] at work in 1996 caused further injury to the plaintiff’s lumbar spine (this time at L4/5, with an osteophyte “most likely compromising the exiting L5 nerves”[5]). As a result of that injury, he suffered a number of symptoms[6] which led to considerable limitations in sitting, standing, bending and lifting and driving tolerances, required the daily ingestion of medication[7] as well as regular chiropractic treatment, which inhibited his sex life, disturbed his sleep, and interfered with his daily domestic and recreational activities. Some surgeons proposed surgical treatment for his lumbar spine condition in 1997 and 2002. In addition, that lumbar spine injury caused him to work full-time on modified duties with restrictions from 1998 onwards.
[4]The plaintiff lodged two claims for compensation in 1996. The first claim related to an incident on 15 February 1996 during which the plaintiff helped to lift a disabled child from the bus. The second claim was for a back injury sustained while unloading bowling bags from under a bus on 7 November 1996. See DCB p 55-58.
[5]See CT scan of the lumbar spine dated 12 December 1996 at PCB, p 133.
[6]Lower back pain radiating into both thighs with tingling down to the soles of the feet, which was aggravated by prolonged sitting, standing, bending, lifting weight.
[7]Including Valium and Panadeine Forte.
4 The defendant says that it is difficult to obtain a clear picture of the plaintiff’s lumbar spine condition before and after 2009-2010 for a number of reasons. The plaintiff has a poor memory in relation to the symptoms suffered over the years and the histories given to doctors about them going back to 1986. Few experts have been provided with a full history of his pre-existing lumbar spine injury and thus few have been in a position to identify the additional sequelae flowing from the 2009-2010 injury. In any event, the defendant says that the clear picture which emerges is one of considerable disability prior to 2009 and 2010, with periodic exacerbations, periods off work, and of working with restrictions.
5 For these reasons, the defendant says that the plaintiff cannot establish that any aggravation of his lumbar spine condition caused by work in 2009 and 2010 has produced pain and suffering consequences which meet the narrative test for serious injury.
The plaintiff – before injury
Plaintiff’s evidence
6 In his affidavits, the plaintiff stated that, prior to sustaining the injury the subject of the application, he enjoyed tending horses, gardening, handyman work and being part of his local community. He had a large rose garden and enjoyed growing many old fashioned roses.[8] He also had a vegetable patch. He and his wife used to keep horses. He was able to ride. He planned to buy a jinker and show the horse in events, which he had done in the past. He used to look after the horses by changing their rugs and helping them to train them to walk and canter. He used to service his own car and those of his partner and her son.
[8]PCB, p 18.
7 He stated[9] that he really enjoyed working as a bus driver. He considered his work mates to be good friends. His work gave his daily life structure and purpose. Through work he felt he was an important part of the community.
[9]PCB, p 20.
8 From 2009, after the Kinglake bushfires, until October 2010, the plaintiff stated that he worked 40-50 hours per week due to demand within the community for transport services, and that he was able to work those hours and that it gave him satisfaction to feel an important part of the community.
9 In relation to the medication he was taking prior to the subject injury, the plaintiff stated[10] that he took one Voltaren tablet at night. When he was working, he usually took Panadeine Forte, although fewer than two to four tablets per day, but not every day[11]. Some days, he took none at all. In cross-examination, the plaintiff agreed that he continued to receive prescriptions for Valium during this period[12].
[10]PCB, p 23.
[11]T14.23.
[12]T15.3.
10 In cross-examination, the plaintiff said that although he was supposed to be working with restrictions (using an air seat, not lifting more than 10 kg), the restrictions were not adhered to, and he was at times not provided with an air seat.[13]
[13]See for example, T34.20.
11 He planned to keep working as a bus driver until the age of 70, and, prior to the injury, was managing his back condition well, and was able to increase his hours to help out after the bushfires. He continued to see his general practitioner, but more often, for a number of flare ups from late June 2009[14].
Pre-injury back problems – medical evidence
[14]DCB, pp 159-164.
12 The plaintiff is 68 years old. He completed Year 8. He has dyslexia and difficulty reading and writing. He is currently in receipt of the Disability Support Pension. He completed an apprenticeship as a panel beater and worked in that capacity for Bell Autos for approximately 10 years. In the late 1970’s, he suffered a back injury at work and had some time off. He then returned to work. In 1986, while working for another company as a panel beater, he suffered another injury to the lumbar spine. Radiological investigations at that time[15] confirmed a small disc herniation at the L5/S1level with mild effect on the theca and the left S1 nerve.
[15]PCB, pp 129-132.
13 In about 1988 the plaintiff had a laminectomy. According to the history given to Associate Professor Buzzard some years later[16], the plaintiff made about a “90-95%” recovery after that surgery, but was left with some continuing symptoms. He was off work for about two and a half to three years[17]. Between 1992 and 1993, he returned to work part-time as a cleaner and also drove buses.
[16]DCB, p 81.
[17]See the plaintiff’s history to Mr Hadley at DCB, p 93.
14 He started work with Dysons as a bus driver in June 1993. On 15 February 1996 he injured his back when lifting a disabled passenger. Although he did not initially recall it, the plaintiff agreed[18] during cross-examination that there was also a second lifting incident on 7 November 1996 during which he injured his back while unloading bowling bags from under a bus. Radiological investigation[19] revealed an osteophyte at the L4/5 level, “most likely compromising the exiting L5 nerves”. The plaintiff returned to work on a modified basis in early January 1997[20] and gradually returned to full hours by May 1998.
[18]T27.23.
[19]See CT scan dated 12 December 1996, PCB 133.
[20]PCB, p 86.
15 The plaintiff was referred by his treating general practitioner, Dr John Colbert[21] to orthopaedic surgeon, Mr Brian Barrett, who reported on 14 February 1997[22] that the plaintiff had suffered a ruptured disc at L4/5, and complained of symptoms including low back pain, pain radiating in both thighs, with tingling down his legs to the soles of his feet, particularly on the left side. These symptoms were aggravated by prolonged sitting, bending, lifting, etc. and were somewhat alleviated by taking analgesics and lying down. The plaintiff had not been improving over the previous few months. Mr Barrett recommended an L4-S1 spinal fusion and decompression of his cauda equine nerve roots in order to improve “his troublesome and disabling symptoms”[23], but he did not see the plaintiff again.
[21]PCB, p 85.
[22]PCB, p 65.
[23]PCB, p 65.
16 The plaintiff was referred by the insurer to another orthopaedic surgeon, Ms Judith McKenzie, who reported on 8 April 1997[24] receiving complaints similar to those outlined in the previous paragraph. On examination, she found no evidence of neurological deficit. She noted that against a background of “well established symptomatic lumbar spondylosis secondary to very longstanding discogenic damage”[25], going back beyond 1985, which had been managed by an L5/S1 laminenctomy, the plaintiff had developed acute back pain as a result of the lifting incidents at work in February and November 1996. She felt that the work incidents “caused extension of the pre-existing discogenic damage and were a factor in the deterioration of the back condition”[26]. She considered that his partial incapacity was permanent, and that the plaintiff was fit to carry out restricted duties (no repeated lifting, or lifting more than 10 kg, no repeated twisting or bending his trunk, pushing, pulling or working above shoulder height or with vibratory equipment). She considered that the L4/5 and L5/S1 disc damage was permanent, that the pain was mechanically caused, and would not be prevented by any conservative treatment. She considered that an L4-S1 fusion was a realistic treatment option[27].
[24]DCB, p 67.
[25]DCB, p 70.
[26]DCB, p 71.
[27]DCB, p 75.
17 Dr Colbert had extensive discussions with the plaintiff in relation to the proposed surgery, and the plaintiff opted for conservative treatment. Dr Colbert reported[28] that from November 1996 the plaintiff required analgesics including Ducene and Panadeine Forte. He stopped taking Voltaren because it gave him an ulcer.[29] Dr Colbert concluded that the plaintiff had a permanent impairment of the lumbar spine, but had an excellent work attendance record after May 1998[30]. He was assisted by weekly or fortnightly chiropractic treatment and also required “periodic use of analgesics and muscle relaxants” (Panadeine Forte and Diazepam).[31]
[28]DCB, p 85.
[29]PCB, p 86
[30]PCB, p 86.
[31]Dr Maurice Wallin, occupational health consultant, later reported to the insurer on 16 December 1996 his opinion that the plaintiff aggravated his already chronically pathological back in February 1996 and again on 7 November 1996, and had persisting symptoms referable to the 7 November 1996 incident. He felt that the sequelae of the November 1996 incident had not yet stabilised and could not yet be considered permanent.
18 The plaintiff had a number of sessions of physiotherapy with Mr Lachlan Kellaway, who reported on 3 March 1998[32] that the plaintiff had progressed to working three days a week for eight hours including six hours of bus driving. The bus driving caused him some aggravation of pain. Mr Kellaway hoped that the plaintiff might recover sufficiently to return to a combination of bus driving (in an automatic bus) and office type duties, but doubted that he would ever return to heavy lifting or bending activities, especially in combination with prolonged sitting in driving the bus[33].
[32]DCB, p 76.
[33]DCB, p 76.
19 Between 1997 and 1999, the plaintiff had chiropractic treatment between two and four times per week with Dr Steven Katz[34]. He continued to receive treatment from Dr Katz until late 2004, when Dr Katz moved interstate[35].
[34]See report of Dr Michael El Moussalli at DCB, p 78 who reviewed the plaintiff on 14 December 2009. The plaintiff reported ongoing symptoms of low back pain and a burning sensation, intermittent leg pain, and intermittent locking of the back. He was unable to ride a horse or go kart driving. Dr El Moussalli recommended that the plaintiff be provided with a gym membership and gradually reduce his chiropractic treatment to zero over the next three months.
[35]See report of Dr Dean Mawby at DCB, p 60.
20 By May 1998, after a period of gradual increases in activities and hours of work, the plaintiff was working full hours. He was certified fit to work full-time in modified duties, that is, no more than three hours of driving at a time, and only driving when seated on an air ride seat.[36] He was using an air seat, and taking Voltaren (one tablet) in the evening[37] and two to four Panadeine Forte per day. He was experiencing some sexual dysfunction.
[36]PCB, p 145.
[37]PCB, p 15.
21 On 6 April 2002, the plaintiff saw A/Prof Anthony Buzzard[38] and reported back pain extending down both legs, occasionally associated with pins and needles down the back of both legs to the feet. He was taking Valium, Voltaren and Panadeine Forte for his symptoms. He also reported having erectile difficulty over the past four years. A/Prof Buzzard felt that the plaintiff had suffered an aggravation in 1996 of pre-existing pathology in the lumbar spine and that he had suffered a permanent impairment of the function of the lumbar spine. Since the plaintiff had refused surgery, A/Prof Buzzard felt that no further formal physical treatment was required, and that he could do exercises himself. He considered that the plaintiff was capable of carrying out his pre-injury employment.
[38]DCB. P 80.
22 As at 10 November 2003[39], Dr Colbert reported that the plaintiff was able to maintain his work duties with restrictions, with minimal time off due to his back pain, but that his daily activities were limited by his back pain.
[39]PCB, p 88.
23 On 26 July 2004, Mr Hugh Hadley, orthopaedic surgeon, reported to the insurer[40] that the plaintiff complained of low back pain most of the time which varied in degree and was sometimes severe. He had occasional pain, numbness, and pins and needles spreading down his thighs to his calves but not to his feet. The pain was aggravated by prolonged sitting or standing. He was able to walk for long distances on the flat but had difficulty walking down steep hills. He had sexual dysfunction due to his back pain. Prior to 1996, he was able to race go-karts and garden, but could no longer do so. Mr Hadley opined that if his symptoms worsened he may require fusion surgery. Mr Hadley considered that he was fit to work as a bus driver provided he had a seat with good suspension and was able to stand after two hours of driving. He would require ongoing medication.
[40]DCB, p 92.
24 In February and March 2005, the plaintiff was assessed by, Ms Denise Currie, an occupational therapist who noted[41] that he had a sitting tolerance of 30 minutes to three hours; a lifting capacity of 2-5kg; standing tolerance of 15-30 minutes; walking tolerance of 30 minutes; and the ability to complete an eight hour day. Ms Currie recommended the provision of a fully adjustable ergonomic air seat.
[41]PCB, p 160.
25 In April 2005, the plaintiff began treatment with another chiropractor, Dr Dean Mawby, who felt that the treatment with Mr Katz enabled the plaintiff to continue working with little time off. Dr Mawby trialled treatment twice per week for three weeks followed by eight weeks of one visit per week. After three months, Dr Mawby reported that the plaintiff indicated he benefitted most when receiving weekly to fortnightly chiropractic treatment. Dr Mawby recommended continued treatment on this basis.
26 On 17 August 2005, the Medical Panel determined that ongoing chiropractic treatment for a further three months was appropriate. The Panel considered that despite extensive chiropractic treatment over a number of years, there had been no significant long-term overall improvement in his symptoms or functional capacity. The Panel considered that a properly structured self-managed exercise program was appropriate once the chiropractic treatment ceased. However, the Panel also concluded that the plaintiff “could not remain at work if the medical service of chiropractic was ceased”[42].
[42]DCB, p 53.
27 From 2006 onwards the plaintiff did not receive any chiropractic treatment. He worked full-time, with restrictions[43]. He suffered a flare up of back pain in July 2007, for which he sought medical treatment.[44]
[43]T34.5.
[44]Although the plaintiff did not take time off work on that occasion, the plaintiff stated under re-examination that he would sometimes take two or three days off work when experiencing a flare up of back pain.
The plaintiff – after injury
Plaintiff’s evidence
28 The plaintiff attended his general practitioner for flare ups of back pain in late June 2009[45], late March 2010[46], early May 2010[47] and mid-August 2010[48].
[45]DCB, p 164.
[46]DCB, p 160.
[47]DCB, p 160.
[48]DCB, p 159.
29 On 11 October 2010, the usual bus driven by the plaintiff broke down and the replacement bus did not have an air seat. He suffered an increase in back pain. On 12 October 2010, he plaintiff drove another bus with a faulty spring seat. His back pain worsened. He was assessed by Dr Colbert as being unfit for work. He lodged a WorkCover claim form on 13 October 2010. His claim was accepted. He was looked after by two general practitioners: Dr Salbah Al-Mulla (between 2011 and 2013) and Dr Hans Surva (between 2014 and 2019).
30 Before turning to the medical evidence, I summarise the plaintiff’s evidence concerning the sequelae of the injury the subject of the application.
31 In his affidavits[49] he states that he suffers constant lower back pain which he rates at about 7/10 even when taking medication and wearing the Norspan patch. He continues to be prescribed Norspan patches, Diazepam, Mobic, Panadeine Forte and Tramadol.[50] He is also using Mobic as an anti-inflammatory agent and Valium for muscle spasm.
[49]PCB, pp 18-20.
[50]He did not indicate which or how many of these medications he was taking on a daily basis. However, I note from the recent report of Mr Graeme Doig dated 28 June 2019 (DCB, p 2) that he uses a Norspan patch 20 mcg which is changed weekly, Panadeine Forte, and Tramadol 50-100 mg per day.
32 He has restricted movement in his lower back. He is unable to stand, sit, or walk for long periods or carry any heavy weights. He cannot drive for more than an hour and a half without taking a break. Due to his pain, he has to lie down and rest in the afternoon. His ability to sleep is badly affected because he cannot get comfortable and it can take up to four hours for him to get to sleep. He avoids heavy housework and paces himself when doing any domestic activities. He uses a trolley to take washing to the line. He can no longer tend his garden. He can no longer look after horses or ride them. He can no longer do any large home maintenance jobs, nor any work on cars that requires him to bend over the engine. He has to pace himself when cleaning the car. He walks his dog, slowly, about two kilometres per day, which takes him about an hour. Walking any further causes him increased pain. He now only goes out once per week, and tends to stay home or visits friends.
33 He loved working as a bus driver and misses working. He misses the structure and routine of the working day, the friendship of his work colleagues, and the sense of purpose he felt as a member of the local community.
34 The plaintiff was referred for investigations. He had a CT scan on 19 November 2010[51] which was reported with the following conclusion:
The previous L5 laminectomy is noted. There are significant disc degenerative changes at both the L4/5 and L5/S1 levels with a small to moderate sized diffuse central posterior disc herniation at the L4/5 level associated with a mild degree of canal stenosis. No other disc herniation is seen and there is no other evidence of canal stenosis. There is marked bony narrowing of both L4 nerve root exit foramina at the L4/5 level and of both L5 nerve root exit foramina at the L5/S1 level and of both L5 nerve root exit foramina at L5/S1 due to prominent postero-lateral osteophytes at both levels.
[51]PCB, p 137.
35 On 1 February 2011, the plaintiff had an MRI scan[52] which was reported with the following comment:
Previous L5 laminectomy. There are degenerative changes particularly at L4/5 and L5/S1. There is bilateral L4/5 and L5/S1 foraminal stenosis which would account for L4 and L5 radicular compression respectively. If this patient’s symptoms do not respond to conservative management, then a CT guided epidural block may be a consideration.
[52]PCB, p 140.
36 The plaintiff was referred to a number of surgeons and a pain management specialist. Mr Roy Carey, orthopaedic surgeon, recommended conservative treatment in February 2011[53] and sent him to a pain management specialist. By mid-August 2011, Mr Carey noted[54] that his back was still “constantly uncomfortable and bothersome but was settling. He had no sciatica”[55]. Mr Carey recommended referral to a physiotherapist to commence an exercise program. He felt that the plaintiff could return to his driving work using an air seat. He did not see the plaintiff after 22 April 2013. At that point, the plaintiff told him that he was not able to work due to his back pain[56].
[53]PCB, p 28.
[54]PCB, p 35.
[55]PCB, p 36.
[56]PCB, p 43.
37 On 6 April 2011, Dr John Lange, occupational physician, reported to the insurer[57] that the plaintiff told him that although he returned to work in 1998 with long term restrictions of no lifting over 10kgs, to work with a bus with an air ride seat, and to only drive for three hours at a time, the restrictions had not been adhered to and he had been driving up to seven hours per day[58]. Dr Lange concluded that as a result of the incidents in October 2010 the plaintiff sustained “an exacerbation of his underlying lumbar spine spondylosis”, and had no capacity to return to any employment, as he continued to have severe low back pain radiating to the legs, with very limited sitting capacity[59].
[57]PCB, p 149.
[58]PCB, p 150.
[59]PCB, p 151.
38 Associate Professor Brazenor reported on 30 November 2011[60] to the plaintiff’s general practitioner, that the plaintiff would never return to driving a bus, but indicated that was “as much as a 7/10 chance of rendering him comfortable and giving him a decent quality of life, without surgery”[61].
[60]PCB, p 171.
[61]PCB, p 171
39 On 11 January 2012, Dr Lange noted[62] that the plaintiff was following a walking program recommended by A/Prof Brazenor, and alternating this with rest and medication. Dr Lange felt that the plaintiff could not return to his pre-injury duties but could undertake light work, with no lifting over 5 kg, no repeated bending, starting with four hours per day.
[62]PCB, p 156.
40 On 28 September 2012, David de la Harpe, orthopaedic surgeon, reported[63] that the plaintiff’s main complaint was of back pain rather than sciatic radiation, which was aggravated by even mild activity. Mr de la Harpe opined that the plaintiff would not benefit from further surgery and should persist with conservative treatment including physiotherapy and hydrotherapy. He felt that the plaintiff could not return to manual duties, and would suffer further deterioration of his symptoms in the future. He felt that if the lumbar canal stenosis present at L4/5 worsened, further decompressive surgery may be required.
[63]PCB, p 63.
41 On 7 November 2012, Dr Tim Hwang, occupational physician, reported[64] that the plaintiff was being treated conservatively and was awaiting multidisciplinary pain management. He was taking numerous medications. He considered that the plaintiff had suffered an aggravation of pre-existing degenerative changes at the L4/5 and L5/S1 level. He considered it appropriate for the plaintiff to participate in a pain management program.
[64]PCB, p 166.
42 On 13 February 2013, Dr Sabah Al-Mulla reported[65] that the plaintiff had received treatment from osteopaths, chiropractors, physiotherapists and pain management specialists, but that his back problem “is now reflected on all aspect[s] of his life, specially the psychological part which made him feel depressed most of the time. He is taking medication, but in the last month his pain [got] worse with more restriction of his movements inspite [sic.] of treatment…so that put me in doubt of the effectiveness of the pain management team plan”[66].
[65]PCB, p 74.
[66]PCB, p 74.
43 On 25 August 2014, Dr Surya reported[67] that the plaintiff had resumed osteopathic treatment (after funding was ceased two years earlier), and was seeing a pain specialist for management of his back pain. He reported a restriction in his lower back movements due to pain. He was taking analgesics, muscle relaxants, anti-inflammatories and topical analgesic ointment. Dr Surya felt that he would permanently experience back pain, and continue to require medication as well as ongoing physiotherapy or osteopathy.
[67]PCB, p 89.
44 Dr David Vivian, pain doctor, treated the plaintiff from February 2011 to 9 September 2014.
45 On 10 February 2012, Dr Vivian reported[68] a history from the plaintiff that prior to the incidents of October 2010, he “used to get back pain”; a “burning sacral pain, associated with some pins and needles in the legs, and this has been the major pain ever since”. Prior to October 2012, that burning sacral pain by the end of a day driving would reach 6-7/10. The back pain became worse after he was given a bus without an air seat and was exposed to added vibration: “….he had worse burning pain, but he also developed a new mid to low lumbar pain that seemed more mechanical and was aggravated by movement”[69]. By the time of the consultation, the mid to low lumbar pain had settled, and the burning pain remained as before. Dr Vivian concluded that the plaintiff had developed neuropathic pain and perhaps some nociceptive pain, and that there was a significant relationship between the altered vibration and the development of symptoms. At that point, he felt it was unlikely he would get enough pain control to get back to work[70].
[68]PCB, p 96.
[69]PCB, p 96.
[70]PCB, p 99.
46 On 5 August 2014, Dr Vivian reported[71] that he had seen the plaintiff on two further occasions. On 10 July 2012, the plaintiff told him that his pain was persisting. He had limited sitting and standing tolerances. He was taking Endep at night, six to eight Panadeine Forte per day and two to four Panadol per day, as well as Tramal twice per day, Valium once or twice a day, as well as Coversyl and Mobic. Dr Vivian recommended a trial of Gabapentin. If this did not assist, he suggested possible consideration of neuromodulation devices.
[71]PCB, p 100.
47 When Dr Vivian saw the plaintiff in March 2013, Dr Vivian noted that the plaintiff continued to complain that the burning sacral pain was his worst pain and prevented him from sitting and standing[72]. The plaintiff ceased Gabapentin because of its side effects. He had found the trial of compound medication (using anti-convulsants and anti-neuropathic medication) helpful.
[72]PCB, p 101.
48 Dr Vivian concluded, in August 2014, that the plaintiff’s lumbar spine condition “has been permanently aggravated by exposure to vibration”[73]. He would continue to require medication and possible neuromodulation. Further surgery may be required if he developed severe leg pain associated with nerve root compression[74].
[73]PCB, p 103.
[74]PCB, p 103.
49 The plaintiff tendered a “report” by a physiotherapist, Mr Matthew Richards, dated 26 September 2014. The report does not comply with the expert witness Code of Conduct. It is based on information gleaned from other reports and not on a consultation with the plaintiff. It canvasses matters (including psychiatric assessment) clearly outside the author’s expertise. It ought not to have been tendered, and I have ignored its contents.
50 Dr Helen Sutcliffe, occupational physician, reported for medico-legal purposes on 29 September 2014[75] that the plaintiff described constant pain in the low back, mid back and posterior aspect of the left thigh and left leg to the ankle and the plantar aspect of the left foot, with pins and needles in the left leg. The back pain varied in intensity between six and ten on a visual analogue scale. He reported difficulty sleeping, and increased pain on waking and initial walking. He was able to perform self-care and cook a little but did no shopping, cleaning or work on the house outside. He was no longer able to go fishing, go on holidays or work on cars. Dr Sutcliffe diagnosed aggravation of degenerative change in the lumbosacral spine when the plaintiff was provided with a bus without an air-ride seat in the course of his employment in 2010. He had persisting low back pain and left leg pain together with sensory change in the left leg consistent with L4 and L5 radiculopathy. She felt that he was permanently incapable of any employment. She recommended continued conservative treatment through a pain management program.
[75]PCB, p 114.
51 On 14 October 2014[76], Dr Sutcliffe ruled out the additional employment options proffered in a vocational assessment report dated 7 July 2014.
[76]PCB, p 126.
52 On 14 March 2018, A/Prof Anthony Buzzard, general surgeon conducted an Impairment Assessment for the insurer[77]. He noted, relevantly, a complaint from the plaintiff of persistent burning pain in the low back affecting the sacrum and coccyx and extending down the backs of both legs to the toes. The pain is aggravated by any bending, by sitting more than 20 minutes and by walking, toileting and showering. A/Prof Buzzard found that the plaintiff had little detailed memory of events. He reviewed the material sent to him and noted that the laminectomy performed in the 1980s was not completely successful, and that the plaintiff had had deteriorating low back trouble since that time. On examination, A/Prof Buzzard was unable to find clinical evidence of any nerve root involvement. However, he considered that the plaintiff incapable of doing any work involving lifting, bending and stooping and, given his previous employment history, was totally and permanently incapable of working.
[77]DCB, p 10.
53 Given the history of laminectomy and ongoing symptoms thereafter, A/Prof Buzzard considered that the decreased range of movement in the back arose at that time, prior to his employment with the defendant. Accordingly, A/Prof Buzzard would attribute 0% of his current whole person impairment to any injury occurring on or around October 2010[78].
[78]DCB, p 15.
54 On 6 March 2019, Dr Surya reported[79] that the plaintiff continued to suffer chronic back pain and repeated the conclusions outlined in the paragraph 44 above.
[79]PCB, p 92.
55 Mr Mohammed Awad, neurosurgeon, reported[80] on 26 April 2019, for medico-legal purposes that the plaintiff gave a history of returning to work in 1998 using an air seat “with no problems for many years thereafter”[81] until the incidents in October 2010, after which “his back pain reached a point where he was unable to return to work and he required time off for treatment including physiotherapy, exercises and hydrotherapy”. The plaintiff complained of ongoing lower back pain which comes and goes, and is 2/10 on a good day but when present can be 8/10. He could sit and drive for a maximum of 35 minutes, stand for 10 minutes and walk about two kilometres. He was taking diazepam, Mobic, Norspan patches, Panadeine Forte and Tramadol.
[80]PCB, p 110.
[81]PCB, p 111.
56 Mr Awad concluded that the plaintiff’s employment as a bus driver had been a significant contributing factor to aggravation of his lumbar spondylosis. The precipitating factors were the combined effect of driving excessive hours from 2009 and the incidents of driving on poor seats on 11 and 12 October 2010. The impact of the injury on the plaintiff was to prevent sexual activity with his wife[82]. In addition, he struggles with general household chores and cooking. He can no longer work on his vintage cars, which he used to enjoy. He needs to take care when cutting his own firewood. Mr Awad concluded that the plaintiff was permanently incapacitated for his pre- injury employment and probably for any employment. He would permanently suffer the pain and restrictions flowing from this injury. He recommended continued conservative treatment by way of a full extended pain management program including physiotherapy and hydrotherapy.
[82]His marriage broke up in 2015.
57 Dr Graeme Doig, orthopaedic surgeon, reported[83] to the defendant’s solicitors on 28 June 2019 that the plaintiff complained of persistent lower back pain with radiation to his perineum and a burning discomfort, but had no symptoms in his lower limbs. The plaintiff reported an inability to return to racing his rally car, and an avoidance of heavy lifting and repetitive bending through the spine.
[83]DCB, p 2.
58 Dr Doig had a history of significant previous injury to the L4/5 disc in the 1970’s and again in 1986 when the plaintiff worked as a panel beater. The injury to the L4/5 disc required a decompressive laminectomy. This surgery was not completely successful and he was unable to return to work as a panel beater. He did not work for a few years before returning to work, as a bus driver. Dr Doig considered that the incident at work in 1996 “symptomatically exacerbated his pre-existing, degenerative, lower back condition”[84]. Dr Doig considered that the “symptomatic exacerbations” in 2010 were a result of his bus driving due to the long periods of sitting, and “would have resolved to the pre-incident state”. He considered that there was no deterioration in the radiological investigations of the lower back after 2010. He concluded that Mr Jeffrey would still be currently suffering from similar symptoms and restrictions with or without the symptomatic exacerbations of 2009 and 2010.
[84]DCB, p 6.
Findings and reasons
59 It is clear from the narrative above, that the plaintiff suffered a significant injury to the lumbar spine in 1986 while working as a panel beater and required an L5/S1 laminectomy in about 1988 which was technically successful but left him with some ongoing symptoms. However, after recovering over the next two to three years, he was able to resume full-time employment with the defendant, as a bus driver, in 1993.
60 The lifting incidents in 1996 caused injury to the L4/5 disc. Notwithstanding the recommendations of Mr Barrett and Ms McKenzie in 1997 that the plaintiff undergo an L4/S1 fusion, and their conclusions that the plaintiff had suffered a permanent impairment of his lumbar spine that would result in ongoing pain preventing him from undertaking heavy work in the future, the plaintiff was able to return to full hours working as a bus driver in 1998, doing modified duties (using an air ride seat, and not driving more than three hours at a time without a break). He had little time off work for his symptoms, which were assisted by regular chiropractic treatment and the ingestion of medication.
61 Specialists who examined the plaintiff in 2002 (A/Prof Buzzard) and 2004 (Mr Hadley) also found a permanent impairment of function. A/Prof Buzzard considered that the plaintiff could do self-managed exercises and work as a bus driver. Mr Hadley considered that he may require surgery but could work as a bus driver provided he continued to take medication, had a good seat, and could stand every two hours. Ms Currie, an occupational therapist, felt that in 2005 he could work eight hours per day with an air-ride seat. His treating physiotherapist felt that ongoing weekly treatment was needed to help the plaintiff stay at work with limited time off.
62 I accept that as a result of the 1996 injury the plaintiff had a permanent impairment of the lumbar spine with sequelae, including restrictions on his capacity to do heavy work and some recreational activities, and pain requiring medication and ongoing chiropractic treatment.
63 By 2005, however, in spite of the Medical Panel ceasing physiotherapy while finding that the plaintiff would be unable to continue working without it, the plaintiff was working full time, without taking much time off work due to back pain. He was not having any chiropractic treatment, and was taking medication, albeit not every day. He continued in this vein, with the odd flare up (for example, in July 2007) until 2009, when he increased his hours to up to 50 hours per week. He suffered more frequent flare ups of pain from late June 2009[85] but he only took time off on occasion and would take Panadeine Forte only when he needed it, and not every day.
[85]DCB, pp 159 - 164.
64 Therefore, the before-injury picture between 2005 and 2010 is one of an extremely stoic person who continued to work more than full-time hours, not having chiropractic treatment, and not taking medication every day but who continued to suffer with daily pain and restrictions. He loved his work, and loved the social engagement and sense of purpose it gave him. He loved tending horses, gardening, doing handyman work around the house.
65 The aggravation of his pre-existing lumbar spine injury occasioned by his employment between 2009 and 2010 put him out of the work he loved, many years before he would otherwise have liked or intended. That is a significant loss of amenity for him[86], as is the attendant loss of purpose and social engagement which work brought him. When taken together with the additional pain and restrictions flowing from his employment in 2009 and 2010 and the additional medication including the use of a Norspan patch, I consider that as a result of the injury sustained between 2009 and 2010 the pain and suffering consequences suffered by the plaintiff are more than considerable when compared with other cases involving permanent impairments of the lumbar spine.
[86]See Hunter v TAC & Anor [2005] VSCA 1 and Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326.
Conclusion
66 For these reasons, leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect to the injury to lumbar spine comprised by the aggravation of pre-existing and symptomatic lumbar spine degenerative changes occurring during the course of his employment with Dysons between 2009 and October 2010.
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