Jin v Victorian WorkCover Authority
[2017] VCC 847
•30 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-01794
| HAK TAE JIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 March 2017 | |
DATE OF JUDGMENT: | 30 June 2017 | |
CASE MAY BE CITED AS: | Jin v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 847 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – paragraphs (a) and (c) of the definition of “serious injury” – injury to the lumbar spine – depression, stress and anxiety – leave sought to bring common law proceedings for “pain and suffering damages” and “pecuniary loss damages” – issues of credit and reliability – disentanglement of consequences of other organic injuries
Legislation Cited: Accident Compensation Act 1985, s134AB(160(b)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dordev v Cowan & Ors [2006] VSCA 254; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
Judgment: The plaintiff is granted leave to bring common law proceedings for both “pain and suffering damages” and “pecuniary loss damages” in respect to injury suffered during the course of his employment with the employer around 19 February 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr M Belmar Salas | Maurice Blackburn Lawyers |
| For the Defendant | Mr D Oldfield | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him over the course of his employment with Laurent Bakery (“the employer”) but, in particular, around 19 February 2009.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clauses (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, ‘serious injury’ is defined as meaning:
“(a) permanent serious impairment or loss of a body function; or
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
5 The body function relied upon in this application is the lumbar spine. The mental or behavioural disturbance relied upon is a psychological condition in the form of Depression, Stress and Anxiety.
6 The plaintiff relied upon three affidavits: two sworn by the plaintiff on 1 December 2015 and 17 March 2017, and an affidavit sworn by his wife, Ms Eunsoo Noh, on 17 March 2017.
7 The plaintiff was cross-examined in Court. I have not summarised the plaintiff’s and his wife’s affidavits or evidence; however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
The issues
8 Counsel for the defendant informed the Court that the following issues were relevant to the Court’s determination of the plaintiff’s application:
(a)The plaintiff’s credit was in issue as a reliable witness. Consequently, the medical opinions that are based largely on the acceptance of the plaintiff’s complaints are similarly unreliable.
(b)The consequences of any organic injury to the spine sustained in the course of employment between February 2008 and June 2011 (and in particular during a sneezing event on 19 February 2009), when judged by comparison with other cases within the range of possible impairments, cannot be fairly described as at least “very considerable” and certainly more than “significant” or “marked” because; (i) the plaintiff has not sufficiently disentangled the consequences of the numerous other organic injuries he has sustained, and (ii) he has not identified sufficiently, the extent of any aggravation in respect of the claimed organic injury.
(c)The consequences of any mental or behavioural disturbance or disorder relied upon by the plaintiff do not meet the “severe” test under paragraph (c) of the Act.
The Plaintiff’s background
9 The plaintiff gave his evidence through an interpreter. He was born in Korea in February 1972. In about 1995, he started working in a company doing a type of on-the-job training/apprenticeship where he learnt drafting and AutoCAD. The work involved primarily designing electrical and security layouts. In October 2000, he visited Australia and undertook an English course for about six months. Prior to leaving for Australia, in 2000, he commenced a pastry-making course in Korea.
10 In 2003, the plaintiff migrated to Australia and undertook further training in hospitality, focusing on cookery. He did a two-year course in Australia, which focused on baking and pastry. While undertaking that course, in about 2003, he commenced working part time as a baker at Baker’s Delight.
11 The plaintiff’s evidence was that in about 2005, he had an episode of back pain. He saw a chiropractor, who provided treatment, including massage. He attended the Chadstone Clinic in August 2005, complaining of back pain. A CT scan at that time showed as follows:
“Large central disc protrusion L4/5 causes significant central canal narrowing may also irritate the origins of the S1 nerve roots bilaterally.
Broader based disc bulge at L5/S1 flattens the anterior thecal sac and may also irritate the origins of the S1 nerve roots bilaterally.”
12 The plaintiff had limited recollection of a discussion about seeing a surgeon but his back pain improved and he was able to return to full duties as a baker, and engaged in physical activities such as tennis and squash.
13 The plaintiff obtained a Diploma in Hospitality in early 2008.
14 The plaintiff’s evidence was that, prior to the injuries which are the subject of this claim, he was generally in good health. He did have some back pain due to the manual work he was doing, but was able to continue working. To the best of his recollection, he did discuss these issues with a doctor and with rest, he was able to continue with his work as a baker.
15 In early 2008, the plaintiff was employed by the employer as a full-time baker/pastry cook, working at least thirty-seven hours per week. The plaintiff’s evidence was that the work was generally very hard physical work and involved a lot of manual handling. In May 2008, he had similar back pain which improved with supportive care.
16 The plaintiff’s evidence was that, on 18 February 2009, he felt discomfort in his back whilst performing his normal work duties. On 19 February 2009, he retrieved a large tub of dough, which was on wheels but heavy. He bent to pull the tub of dough out of the coolroom and felt a level of discomfort in his back. He was then required to prepare rolls at a bench, when he sneezed (“the sneezing incident”). He felt immediate sharp pain in his back and collapsed to the ground. An ambulance was called and he was taken to the Monash Medical Centre, where he was provided with pain relief. The following day, he attended his general practitioner, Dr Yun, who prescribed medication. He underwent a CT scan which showed disc protrusion in his lumbar spine.
17 On or about 19 March 2009, the plaintiff returned to work on modified duties and hours.
18 In April 2009, the plaintiff returned to full-time hours and began working in the cake department, where he stayed until June 2011.
19 In May 2009, the plaintiff was assessed by a physiotherapist, David Harding, at Southern Health, where he reported central low back pain since February 2009. It was noted that he had received “some” chiropractic treatment. He had avoided tennis and squash. The plaintiff’s evidence was that he continued to experience pain in his back. His duties continued to consist of repetitive lifting and bending which aggravated his pain. He ceased work with the employer on 20 June 2011.[1]
[1]Plaintiff’s Court Book (“PCB”) 17 and 22
20 After ceasing work, the plaintiff’s back pain continued and he received treatment from his general practitioner.
21 On 16 June 2011, the plaintiff attended the Emergency Department at Epworth Hospital. He was diagnosed by Dr Mary Buchanan with acute chronic back pain with left-sided sciatica and right buttock pain. A CT scan showed multi-level disc prolapse with disc fragments at the L5 level. He was referred to Mr de la Harpe, orthopaedic surgeon.
22 In July 2011, the plaintiff was reviewed by Mr de la Harpe, complaining of recurring predominantly left-sided sciatica over a couple of years.
23 In February 2012, the plaintiff attempted to study at Holmesglen TAFE but was not able to sit for extended periods and his pain became worse.
24 In April 2012, the plaintiff reported to his general practitioner and chiropractor the sudden onset of right lumbar pain.[2]
[2]PCB 63(i)
25 In June 2012, he was reviewed by Mr de la Harpe, who said his CT scan was suggestive of right L5-S1 disc prolapse. In a report to the plaintiff’s general practitioner, Mr de la Harpe said if the plaintiff’s symptoms do not settle with conservative management, the patient will return to discuss surgery.
26 On 31 July 2012, the plaintiff presented at the Emergency Department of Monash Medical Centre with worsening of his chronic low-back pain. He had run out of medication for pain control.
27 In January 2013, Mr Michael Pullar, neurosurgeon, performed spinal surgery because of the back pain, and the symptoms the plaintiff had in his legs.[3] The surgery has not been entirely successful and the plaintiff continues to experience back pain and symptoms into his legs.
[3]PCB 57
28 Prior to 2009, he had some pain due to the manual work he performed. He was able to pursue a full life. He was active and enjoyed activities such as tennis, squash and basketball.[4] He is now no longer able to participate in these activities and cannot work due to back pain.
[4]PCB 19
Credit
29 Of central importance is the credibility of the plaintiff as a witness and as an historian of his symptoms to medical practitioners. The Court of Appeal has referred to the fact that medical opinions may, to varying degrees, be dependent upon the accuracy of the patient or claimant as an historian.[5] A medical opinion which is based upon an account by a patient or claimant as to his or her symptoms “may have little or no probative weight where the court determines that such a witness is not reliable”.[6]
[5]For example Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [46]; Dordev v Cowan & Ors [2006] VSCA 254 at paragraphs [14] and [19]
[6]Dordev v Cowan & Ors (ibid) at paragraph [19]
30 In Franklin v Ubaldi Foods Pty Ltd,[7] Ashley JA said:
“Concerning the history as recorded, two observations may be made. First, the question what history was given to a doctor potentially raised questions both as to what the history-giver said, and what the history-taker recorded. To assume an inevitable monopoly of right on one side or the other would run counter to experience. Second, … it would have been remarkable if there had not been some variations in the appellant’s history as recounted to the very large number of doctors who had examined him over the years.”[8]
[7][2005] VSCA 317
[8]Franklin v Ubaldi Foods Pty Ltd (ibid) at paragraph [5]
31 The fact that a court determines that a plaintiff is not a reliable witness either in general or in respect of particular matters does not mean that all of the medical opinions relied upon by that plaintiff should be disregarded.
32 In Cakir v Arnott’s Biscuits Pty Ltd,[9] the Court of Appeal said that an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application. Further, that regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[10]
[9][2007] VSCA 104 at paragraphs [49]-[58]
[10]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
33 Counsel for the defendant submitted that the plaintiff is an unreliable witness who consistently refused or failed to disclose the true nature and extent of his pre-injury duties in his affidavits and in the witness box. As a result of the plaintiff’s failure to disclose the extent of his pre-existing injuries, his credibility as a witness is adversely affected and, consequently, undermines the medical opinions that are based largely on the acceptance of his complaints.
34 In support of its submission, counsel for the defendant relied upon the plaintiff’s failure to disclose the following in his first affidavit:
(i)At the time of the sneezing incident, he suffered from chronic recurrent lumbar back pain for nearly ten years;
(ii)He failed to report he received treatment and was prescribed an exercise regime while living in Korea;
(iii)He failed to disclose, in 2005, that he had a similar episode;
(iv)He failed to disclose, from 2005, that he had received chiropractic treatment for lumbar back pain;
(v)He had a similar episode in 2008, following which he was off work and received chiropractic treatment;
(vi)Following the sneezing incident of 19 February 2009, he slowly recovered from predominantly left-sided sciatica, and was able to return to exercise and activities of daily living;
(vii)He failed to disclose he went to Holmesglen TAFE to study electrical engineering from February to April 2012;
(viii)He failed to disclose subsequent onset of severe pain in his lumbar spine and right-sided sciatica during an exam period in April 2012.
35 The plaintiff was forcefully cross-examined on some of the above issues, which I will briefly address in turn.
(i)At the time of the sneezing incident, the Plaintiff suffered from chronic recurrent lumbar back pain for nearly ten years
36 In his first affidavit sworn 1 December 2015, the plaintiff stated:
“Prior to the injuries that are subject of this claim I was generally in good health. I did have some back pain due to the manual work that I was doing but I was able to continue working. To the best of my recollection I did discuss these issues with a doctor and with rest I was able to continue my work as a baker.”[11]
[11]PCB 15
37 In Court, the plaintiff agreed with counsel for the defendant that he consulted with Dr Nan Ae Yun, general practitioner, following the sneezing incident.[12] Counsel referred to Dr Yun’s clinical notes, which stated:
“Has had chr[onic] back pain since 20’s
CT scan 3yrs ago; L4/5 ? problem
Prev[iously] well since chiro[practic treatment] last year (May 2008).
… .”[13]
[12]Transcript (“T”) 27
[13]See Dr Yun’s clinical note dated 20 February 2009
38 In cross-examination, the plaintiff said he could not remember what he told Dr Yun and denied having had back pain since his twenties.[14]
[14]T29
39 Counsel for the defendant also referred to a Monash Medical Centre Emergency Department Discharge Summary dated 31 July 2012, which recorded “Long standing Hx of lower back pain- since 2001”.[15] The plaintiff said he could not remember attending Monash Hospital or what he told the doctors. He said it might have been a misunderstanding due to his limited English.[16] Ultimately, the plaintiff agreed he suffered from back pain following his arrival in Australia in 2003 until he started work with the employer in 2008.[17]
[15]PCB 58
[16]T31
[17]T31
40 In Court, the plaintiff did not accept counsel for the defendant’s description of the pain as “chronic”. Instead, he said as follows:
· He disagreed that it was “very severe”[18]
[18]T31
· He did not have “that kind of serious pain prior to the incident”
· He suffered from back pain “sometimes” prior to the incident
· He had some back pain prior to the sneezing incident, which was manageable.[19]
[19]T38, L30 and 51
41 I accept that the statement in his first affidavit accurately reflected his prior medical condition.
(ii)The Plaintiff failed to report he received treatment and was prescribed an exercise regime while living in Korea
42 Counsel for the defendant referred to a report of Dr Phillip Mutton, occupational physician, dated 25 February 2016, where he stated:
“In terms of his history, he was aware of discomfort in his lower back whilst in Korea. He is uncertain if he had any X-rays or special investigations undertaken at that time, but certainly he did receive some massage and exercise prescription.”[20]
[20]Defendant’s Court Book (“DCB”) 22
43 The plaintiff said that he did not receive massage or exercises in Korea but did so following his surgery in Australia.[21] However, agreed that he performed exercises to manage his back pain between January 2008 and February 2009, which included going to the swimming pool, going to the gym and playing basketball with friends.[22] Ultimately, the plaintiff said he performed walking exercises in the swimming pool, not in 2005 but in 2013. He agreed he regularly went to the swimming pool prior to the sneezing incident but that this was not to strengthen his back or to manage pain in his lower back.[23]
[21]T34-35
[22]T35
[23]T38
44 I accept that the plaintiff’s evidence was confused on this point. I think that it is more than likely that the plaintiff reported to Dr Mutton that he was aware of discomfort of his lower back while in Korea and that he received some massage and exercise treatment, despite the fact the plaintiff denied this.
(iii)The Plaintiff failed to disclose, in 2005, he had a similar episode to that experienced in the sneezing incident
45 Counsel for the defendant referred to Dr Yun’s report dated 6 March 2009, which recorded that the plaintiff had a “similar back pain in May 2008”. The plaintiff told the Court that he could not remember telling this to Dr Yun.[24]
[24]T41
46 The plaintiff agreed there was no mention in his first affidavit of his statement in 2005 because he did not remember the treatment at that time.
47 Counsel for the defendant also referred to the records of the Chadstone Clinic on 4 August 2005 where the plaintiff reported to Dr Tan, progressive and worsening back stiffness and pain, with radiating shooting pains down both legs, now present at all times, painful even with transfer. The plaintiff agreed that he consulted Dr Tan in 2005 due to lower back pain and underwent a CT scan of his lumbar spine.[25] The CT scan revealed disc disease at L4-L5 and L5-S1, with narrowing of the central canal clearly pushing on a nerve root, causing the patient symptoms.[26] The records note that the plaintiff was physically active and that Dr Tan advised treatment options and reported that the plaintiff should get improvement with time and exercise, but that he should obtain neurosurgical opinion. He was recommended to continue symptomatic measures including rest, swimming and gentle walking, and monitor his progress over the next two to three weeks.[27] The records also documented the plaintiff was to discuss his back injury with his cousin in Korea, a neurosurgeon himself, and report back to Dr Tan if he required to see a surgeon in Australia.
[25]T31
[26]DCB 1
[27]DCB 63
48 The plaintiff, in his second affidavit, said that he recalled attending the clinic but that he had limited recollection of the discussion. His back improved, and he was able to return to full duties as a baker and pursue other physical activities.
49 In re-examination, the plaintiff said he did not talk to his cousin in Korea directly about his back injury. His elder brother spoke to his cousin, who said the plaintiff should choose whether to have surgery. He could not remember whether the conversation was in 2005 or 2009. He said prior to 2009, no one had recommended surgery. He said he said the pain he suffered after the sneezing incident was different to the pain he suffered before. He said the work in the cake department was different to the work he performed in the bakery as he was not required to lift heavy items.
50 I accept the plaintiff’s evidence on this point. Given the attendances were twelve years ago, I accept his inability to recall details is reasonable.
(iv)The Plaintiff failed to disclose, from 2005, he had received chiropractic treatment for lumbar back pain
51 The plaintiff was cross-examined as to whether he reported to the ambulance officer on 19 February 2009 that he was seeing a chiropractor regularly, which was reflected in their records. The plaintiff’s evidence in Court was that he did not recall informing the paramedics that he was seeing a chiropractor for back pain. This was consistent with his second affidavit.[28] He said he did not believe that he was seeing a chiropractor around the time of early 2009 but did receive some treatment from an English speaking practitioner, which included massage. He felt he recovered and stopped attending.[29]
[28]PCB 24
[29]PCB 25
52 I accept the plaintiff’s evidence on this point.
(v)The Plaintiff failed to disclose he had a similar episode in 2008, following which he was off work and received chiropractic treatment
53 Counsel for the defendant referred to Dr Yun’s report dated 30 April 2009 where she stated as follows:
“… He said that he has (sic) similar back pain in May 2008 and improved in 3 days with supportive care. … .”[30]
[30]PCB 47
54 In 2008, the evidence was that the plaintiff received massage treatment from Dr John Kim, from Our Therapeutic Clinic Pty Ltd, who provided medical certificates on 20 and 21 May 2008 in respect to treatment for the plaintiff’s back problems. The plaintiff’s evidence was that he received treatment for his left-hand-side thoracic rear.[31] He disagreed that he received treatment for lower back pain. He attended another medical clinic in Oakleigh and the pain he was being treated for was an area on his left flank under the arm.[32]
[31]T40
[32]T54
55 The plaintiff was told that the chiropractor’s notes in April 2012 recorded that he reported “right sacroiliac joint pain for three days, can’t walk, radiating to right groin, no trauma, and maybe sitting too long”. He was unable to recall the circumstances which caused him to make the complaint to the chiropractor.[33]
[33]T87
56 Based on the medical certificates of Dr Kim, I accept that the plaintiff was undergoing treatment for his back problems in May 2008.
(vi)Following the sneezing incident of 19 February 2009, the Plaintiff slowly recovered from predominantly left-sided sciatica, and was able to return to exercise and activities of daily living
57 Counsel for the defendant relied upon the following in its submissions:
· A report of Mr Harding, senior physiotherapist, dated 20 May 2009 where he stated “… however he has now returned to work almost on full duties and most of his symptoms have resolved. …”;[34]
[34]PCB 60
· A report of Dr Yun dated 6 March 2009, where he stated, “He has been able to do active life including tennis and squash. But thim he is (sic) recovery is slow”;[35]
· A report of Mr De La Harpe dated 15 July 2011, where he stated, “When he came to see me today his pain is not too bad”.[36]
[35]PCB 49
[36]PCB 62
58 The plaintiff’s evidence was that following the work injury, he was off work for approximately three weeks. He returned to light duties and in April 2009, he commenced full-time hours. In July 2009, he was fit for normal duties, working in the cake department. He told the Court that, prior to his injury in 2009, he enjoyed activities such as tennis, squash and basketball. He reported to Dr Tan that he was physically active. He is no longer able to participate in these activities and struggles to play with his children because of the pain. I accept the plaintiff’s evidence that prior to the work injury, he was physically active, playing sport, such as tennis, squash and basketball.
59 The plaintiff’s evidence was supported by the evidence of his wife, Eunsoo Noh, in her affidavit sworn 17 March 2017. She lived with the plaintiff during 2006 on a temporary visa. She was aware that he had experienced an episode of back pain in 2005, although she was living in South Korea at the time. She said in 2006, he was working full time as a baker, and he appeared, to her, to cope with that work. He was regularly playing tennis, was able to assist around the home and was not restricted in his physical activities. Since February 2009, she deposed that he has not been the same person. He has been under both physical and emotional strain since that time.[37]
[37]PCB 36-38
60 I do not accept that the plaintiff was able to return to exercise and activities following the sneezing incident in 2009. The comments made by Mr Harding were before the plaintiff returned to normal duties. I consider the comment made by Dr Yun refers to his pre-injury status and he is recovering slowly. To read otherwise would suggest that 24 days after the injury, he was playing tennis and squash, which would be most unlikely. Mr de la Harpe is discussing pain on a particular day, not the plaintiff’s return to exercise and daily living.
(vii)The Plaintiff failed to disclose he went to Holmesglen TAFE to study electrical engineering from February to April 2012
61 In his first affidavit, the plaintiff disclosed he attempted further education following his injury.
62 The plaintiff agreed that he attended an electrical engineering course following his return from Korea in 2012. It required him to sit for two hours on a full-time basis from February through to April 2012.[38]
[38]T66
63 I do not accept that the plaintiff should be criticised for not specifically mentioning this in his affidavit.
(viii)The Plaintiff failed to disclose subsequent onset of severe pain in his lumbar spine and right-sided sciatica during an exam period in April 2012
64 Counsel for the defendant queried the plaintiff as to whether he suffered from severe lumbar spine pain in April 2012, which was reported in Dr Yun’s clinical notes of 23 April 2012. The plaintiff said he could not remember.[39] Following repeated questioning, the plaintiff said the following:
Q: “If Dr Yun has recorded in a clinical note that that is the case, do you say that he’s simply got that wrong, do you?---
A: It’s wrong because I always had the pain. At that time, maybe. The pain a little bit severe, but it is wrong.”[40]
(sic).
[39]T67, 68
[40]T73
65 Counsel for the plaintiff submitted that counsel for the defendant had not made a substantial dent in the plaintiff’s reliability as a witness.[41]
[41]T119
Conclusion on credit
66 In considering the credit of the plaintiff, I must consider the evidence as a whole.
67 I formed the view that the plaintiff was a proud man who worked hard despite ongoing back pain to provide for his family. To his credit, he went back to work following the sneezing incident because he felt he had no other choice.[42] The plaintiff gave his evidence and swore his affidavit through an interpreter. English is not his first language. He did not answer questions directly and often relied on a lack of memory in answering these questions. I also note that there was some confusion about the questions asked.
[42]T58, L20
68 In the plaintiff’s first affidavit, I accept that he did disclose that he was generally in good health but that he had some back pain due to the manual work he was performing. He was able to continue working. Given the plaintiff was able to work in a physically demanding job, as well as continue with his physical activities, his failure to deal with the abovementioned issues in great detail, is understandable. The plaintiff was cross-examined in great detail about conversations he had with medical witnesses in about 2002, 2005 and 2008. I accept that the plaintiff could not reasonably recall in any detail what he was reporting to medical witnesses and treatment he received from between nine to fifteen years ago. However, I would expect that he would recall events that occurred more recently. Consequently, I am more inclined to rely upon the objective medical evidence in my assessment.
69 Further, most of the medical witnesses obtained a history of some previous back pain, on occasions, which did not affect his ability to perform his work as a baker with the employer.
The legislative framework
70 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)The injury suffered by him arose out of, or in the course of or due to the nature of his employment with the employer;
(b)The injury, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[43]
(c)The consequences to the plaintiff of his impairments to the spine in relation to pain and suffering consequences or loss of earning capacity consequences must be “serious”, that is, “when judged by comparison with other cases in the range of possible impairments … be, fairly described as being more than significant or marked, and as being at least very considerable”.[44]
[43]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[44]Section 134AB(38)(b) and (c) of the Act
71 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[45]
(a)that at the date of hearing, he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[46]
(b)that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[47]
(c)that the conditions set down in s134AB(38)(e)(i) and (ii) are cumulative; and
(d)that even with rehabilitation and retraining, he will sustain a loss of 40 per cent or more.[48]
[45]Section 134AB(19)(b) and (38)(e) of the Act
[46]Section 134AB(38)(e)(i) of the Act
[47]Section 134AB(38)(e)(ii) of the Act
[48]Section134AB(38)(g) of the Act
72 If the plaintiff satisfies the tests laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[49]
[49]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
73 Accordingly, it is appropriate for me to first look at the various tests for loss of earning capacity, which must be satisfied by the plaintiff in respect to the spine injury.
The physical injury
Causation
74 There was an issue between the parties as to whether the plaintiff suffered a work-related injury to his lumbar spine. The majority of the medical evidence accepted that the plaintiff’s injury was work related.
75 Dr Yun, general practitioner, who had treated the plaintiff since the injury in February 2009, reported that the plaintiff had similar back pain in May 2008, which improved in three days with supportive care. In 2005, he was told of lumbar disc protrusion. Prior to the injury in February 2009, the plaintiff had been very active, playing various kinds of sports. The plaintiff reported that he had pulled/pushed heavy things on 19 February 2009 and did not feel very well before sneezing. After the sneeze, he suffered sudden severe back pain at work and was taken to the Monash Medical Centre. She accepted the injury was work related.
76 In July 2011, the plaintiff was reviewed by Mr David de la Harpe, orthopaedic surgeon. The plaintiff reported recurring predominantly left-sided sciatica over a couple of years. The plaintiff reported that the pain had been aggravated by his work as a pastry chef, from which he had just resigned. In June 2012, he reviewed the plaintiff and said he had developed right-sided sciatica in the S1 distribution. Mr de la Harpe was reporting to the plaintiff’s general practitioner. He was not asked and did not express a view on causation.
77 In December 2016, Dr Slesenger, occupational physician, examined the plaintiff at the request of his solicitor. He obtained a history that the plaintiff was injured during the course of his employment while working for the employer. He had been employed since 2008 in a similar role. He provided a history of being required to retrieve a large tub of dough from the cooler area. He was required to push the tub on wheels and, subsequently, was working at the bench when he developed severe sharp pain into his lower back, which radiated into both legs. He diagnosed an aggravation of pre-existing symptomatic degenerative disease of the lumbar spine with radicular symptoms, requiring surgery in the form of a right L5-S1 microdiscectomy, and rhizolysis, and residual chronic lower back pain with radicular symptoms, but no evidence of radiculopathy. He was aware that the plaintiff had a past history of back pain, possibly work related, in 2005. He received further treatment in 2008 for lower back symptoms. The plaintiff advised that the symptoms were intermittent, mild to moderate, and he was able to remain in work and cope with his day-to-day job demands. He was satisfied that the plaintiff’s work activities and the work incident under consideration caused an aggravation of his symptoms, and that the aggravation has not yet ceased.
78 In September 2016, the plaintiff was medically examined at the request of the plaintiff’s solicitor by Professor Richard Bittar, neurosurgeon. He obtained a history of the plaintiff performing heavy work of a physical nature in the employment of the employer. Significant pushing and pulling was also involved in his work-related activities. He began to experience lower back pain during the course of his workplace activities in February 2009. One day later, on 19 February 2009, he was pulling a heavy tub of dough, which weighed in excess of 100 kilograms, from a cool room. The tub was on wheels. He was required to exert considerable force and felt a sudden onset of sharp, severe pain in his lower back. He sneezed and collapsed to the ground with the pain. He was aware that the plaintiff continued to work despite his pain; however, ceased work in June 2011, due to his symptoms. He said the employment with the employer and specifically, the activities undertaken at work on 19 February 2009, are significant contributing factors. Further, his repetitive and heavy workplace activities leading up to 19 February 2009, also played a significant contributing role.[50]
[50]PCB 103-107
79 In March 2016 and 2017, Mr Yagnesh Vellore, neurosurgeon, examined the plaintiff on referral from Dr Yun. It was his view that the plaintiff’s employment with the employer contributed to the disc prolapse in the plaintiff’s spine.
80 In April 2009, Mr Robin Williams, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. Based on the history he obtained, he believed the plaintiff suffered musculoligamentous strain on 18 February 2009, and a sneeze the following day aggravated that condition. It was his view that the plaintiff’s condition directly related to the back strain on 18 February 2009.
81 In January 2017, Dr Philip Mutton, occupational physician, obtained a history of chronic lower back pain and variable symptoms of left and right radiculopathy over an extended period of time. He said there had been a progression of the plaintiff’s symptoms. Initially symptoms were largely left sided and, subsequently, more right sided. Surgery was directed to the right side. He said he now presents with quite significant disability in association with chronic lower back pain and some sensory disturbances in the lower limbs. He said the plaintiff presented as quite forthright and there was no functional component that he noted. He accepted that his condition was work related.
82 Mr Roy Carey, orthopaedic surgeon, examined the plaintiff at the request of the defendant in March 2016 and February 2017. It was his opinion that the plaintiff continues to suffer from back pain and disability associated with this. He noted the plaintiff had significant pre-existing lumbar pathology, as per the CT scan report of August 2005. He accepted that the plaintiff had a long history of back discomfort prior to the subject injury on 19 February 2009. He accepted the subject injury did occur at work, but the causative event was a sneeze which coincidently occurred at work, and not some particular work-related task or event. Mr Carey said that in someone with profound degenerative lumbosacral changes, as evident, even on the CT scan report of August 2005, spontaneous events, such as a cough, sneeze, rolling over in bed or, indeed, with no particular event at all, sciatica due to lumbar disc herniation/extrusion may occur spontaneously. He said he remained to be convinced that the plaintiff’s physical problem occurred as a spontaneously acute event (a sneeze) and did not relate, in any way, shape, or form, to his work duties at the time, and to which he was predisposed by significant pre-existing degenerative changes in the lumbar spine, which dated back, at least to 2005, as per his CT scan lumbar spine report at that time, well before he commenced work with the employer. I accept that Mr Carey is equivocal as to the relationship of his employment to the plaintiff’s current condition. He is the only medical witness to express that view.
83 Accordingly, based on the majority of the abovementioned medical opinions, I accept that the plaintiff’s condition is work related.
84 I further note that the plaintiff’s claim for injury arising in the workplace on 19 February 2009 was accepted by the defendant. I was informed that there were no payments made by the defendant under that claim. The evidence is that the plaintiff did not understand the WorkCover arrangements and received the treatment under the public health system.
Loss of earning capacity – the narrative test
85 In respect of loss of earning capacity, it is necessary for me to consider the plaintiff as at the present time.
86 The up-to-date medical evidence of the plaintiff’s capacity for employment was expressed by Professor Bittar, neurosurgeon, Dr Slesenger and Dr Mutton, occupational physicians, Mr Carey, orthopaedic surgeon, and the general practitioner.
87 Professor Bittar said the plaintiff was totally incapacitated for work as a result of the work-related lumbar spine condition. He considered the incapacity was permanent. He said the plaintiff does not have any realistic capacity to undertake any work in a sustained, consistent and reliable manner.
88 Dr Slesenger said, in his opinion, the plaintiff will not be able to return to pre-injury duties. In support of this, he noted the manual handling and postural requirements. With regard to alternate employment, he said the plaintiff is unlikely to be able to return to work in a role for which he has suitable training and expertise. He noted the variable and unpredictable nature of the plaintiff’s symptoms, which he said is likely to affect his capacity to attend work on a consistent and reliable basis and to engage in retraining. He said the plaintiff would benefit from referral to a pain management program; however, he did not anticipate a significant alteration in his symptoms, to the point that he would be able to work in a role for which he has suitable training and an expertise.[51]
[51]PCB 101
89 In February 2016, Dr Mutton said the plaintiff presented as quite forthright. He noted that the plaintiff was quite uncomfortable at his appointment and he was aware that the plaintiff had tried to do study, but had discontinued due to discomfort, after a few months. He said the plaintiff would need to restrict attendance to work to less than full-time hours, possibly two to three hours, three times a week. He said he would not be able to lift more than 2 kilograms. He would have to be able to sit and stand and interchange. He would not be able to push, pull or strain, and he would not be able to ambulate for long periods of time. He said that he thought the plaintiff had no current occupational capacity at this time.[52]
[52]DCB 28-29
90 In January 2017, Dr Mutton re-examined the plaintiff. He concluded that he would be highly unlikely to be successfully employed. He would need employment where he can sit and stand and interchange, and this had implication, given his occupational training. He concluded there had been no significant change in his condition since he saw him in February 2016. He said he thought the plaintiff had a current capacity for work, but would have restricted function for work purposes. He would find it difficult to find appropriate work given his lack of transferable skills.[53]
[53]DCB 28-29
91 In February 2017, Mr Carey said there was little to find, on physical examination, which would suggest the plaintiff could not reasonably undertake appropriate alternative or modified duties, but said he was not an occupational physician, so would not comment further on that topic. He said he could work within his limits of any discomfort.[54]
[54]DCB 59
92 Based on the medical evidence of Professor Bittar, Dr Slesenger, and Dr Mutton I accept that the plaintiff has no work capacity.
93 The evidence was in March 2009, the plaintiff returned to work on modified duties with the employer before he was able to return to full-time duties in a different department, with somewhat lighter work in the cake department. The plaintiff’s evidence was that he had to work. He said he remembered he was sick at the time but there was no choice for him but to go back to work full time.[55] He said he did his best to return to working full-time hours during the time he was in the cake department. He continued to experience pain in his back, despite being assigned to another area. His duties continued to consist of repetitive lifting and bending and, as a result, his duties continued to aggravate his pain. This is consistent with the general practitioner’s records. In April 2011, he reported lower back pain comes and goes and that he was considering a change in career. In June 2011, he reported back pain gradually got worse, sitting causes numbness and, standing also causes pins and needles from the back to left ankle. He was admitted to the Epworth Emergency Department on 16 June 2011 complaining of right buttock pain.[56] He ceased work with the employer on 20 June 2011 as he was no longer able to continue working with his back pain.
[55]T58, L20
[56]T62A
94 I accept that the plaintiff continued working with ongoing back pain until June 2011, when he was, again, struggling with back pain and was finally forced to resign. I accept that by 16 June 2011, the plaintiff was reporting symptoms in the left and right sides. This was confirmed on the CT scan of 16 June 2011.[57]
[57]PCB 73
95 The plaintiff was referred to Mr de la Harpe in July 2011 and again in June 2012. In July 2011, he suggested surgery, which the plaintiff was to consider. The plaintiff returned to see Mr de la Harpe in June 2012. A further CT scan was performed which showed right paracentral disc protrusion at L5-S1 of moderately severe grade, producing S1 radiculopathy,[58] confirming the previous CT scan of 2011.
[58]PCB 70-71
96 The plaintiff’s evidence was that he wanted to provide for his young family, hence he commenced studying.
97 In February 2012, he attempted further education through Holmesglen TAFE, undertaking a course in electrical engineering. He found it difficult to sit for extended periods of time.
98 On 23 April 2012, he reported to his chiropractor and general practitioner the onset of right-sided lumbar pain. However, in cross-examination, he said he had pain in both legs prior to April 2012, which is consistent with what he reported on 16 June 2011 to Dr Buchanan at the Epworth Emergency Centre, and the CT scan of the same date.[59] He agreed that the right-sided pain did not resolve and did not get better after April 2012. He ceased his study in April 2012. At that time, he was very depressed, his mood was down and he lost hope.
[59]PCB 62(a)
99 In cross-examination, the plaintiff’s evidence was that he did not get better after he ceased work with the employer. Between June 2009 and April 2012, he was not able to manage his symptoms with exercise.
100 Counsel for the defendant submitted that, with respect to a loss of earning capacity claim, the evidence demonstrates that the plaintiff had decided to embark upon a career in electrical engineering. I accept the plaintiff’s evidence that he wanted to provide for his young family, he could no longer perform physical work, so commenced studying.
101 Further, counsel for the defendant submitted that on 23 April 2012, the plaintiff sustained a sudden onset of lumbar spine pain with radiation down the right side during the exam period and following a prolonged intense period of study in 2012. In the circumstances the 23 April 2012 incident was a separate injury. As a result the plaintiff was required to disentangle the consequences of that injury, from the consequences of the sneezing incident on 19 February 2009.
102 I do not accept that the plaintiff suffered a separate injury on 23 April 2012. In June 2011 the plaintiff reported right sided symptoms and the CT scan of 16 June 2011 recorded “At L5-S1there is a broad- based right paracentral disc protrusion displacing the right S1 nerve root.” Further, it is inconsistent with the contemporaneous records of Mr Park, chiropractor, to whom the plaintiff reported the onset of pain on 23 April 2012. Mr Park recorded ‘right sacro-iliac joint pain for 3 days. Can’t walk. Radiating to right groin. No trauma or maybe sitting too long.”[60] I accept that the plaintiff reported the pain to Dr Yun on 23 April 2012. She recorded “plantar pain 2 weeks ago and has attended chiropractic and during treatment sudden onset od [of] rt[right] lumbar pain and scrotal pain at the same time”.[61]
[60]PCB 63(i)
[61]DCB. The general practitioner’s records at page 38
103 Dr Yun’s record is confusing. Further, she did not get a history of three days of sacroiliac pain. I prefer to rely upon the contemporaneous notes of the chiropractor.
104 The evidence is that in April 2011, the plaintiff was being treated for plantar fasciitis in the left foot. He was prescribed medication. In April 2012, he reported bilateral heel pain to Mr Park. I accept that the consequences of the lumbar spine are so clearly distinct from the consequences of the feet, that no “disentangling” is necessary, as discussed in Peak Engineering Pty Ltd v McKenzie.[62]
[62][2014] VSCA 67 at [24-25]
105 In addition, counsel for the defendant submitted that the evidence demonstrates that after the 23 April 2012 incident, the plaintiff’s wife decided to return to the workforce and the plaintiff would stay at home to look after the children. Further, that it was a voluntary choice by the plaintiff to cease working, with his wife returning to the workforce.
106 As to that submission, that is not the evidence of the plaintiff’s wife nor the evidence of the psychologist, Ms Ellie Shin.
107 The evidence of the plaintiff’s wife was that she is currently employed as a midwife at Sunshine Hospital in the Graduate Program. She qualified in April 2016. She commenced studying midwifery in 2012, when she and her husband realised that he would have difficulty re-entering the workforce. They have three children, aged eight, six and two years. I accept her evidence. She was not cross-examined on her affidavit, and it has a ring of truth about it.
108 Ms Shin, psychologist, said that the plaintiff suffers symptoms of Depression, a sense of hopelessness and helplessness, lowered self-esteem and feelings of failure as a father.[63] She said that one of the most stressing problems for him is his difficulty accepting the new role given to him as a full-time father of young children. I accept that it is a great distress to the plaintiff to find himself in the situation he is placed, having done his best to return to work and then to retrain, on his own initiative, in 2012, after which he had to abandon his studies, and his reliance upon pain-killing medication. Accordingly, I reject the submission of the defendant that this was a voluntary choice.
[63]PCB 50
109 I accept that the extent of the impairment of the lumbar spine is that the plaintiff can no longer return to his pre-injury employment, nor can he obtain suitable employment. He is effectively unemployable.
Aggravation injury
110 The evidence is that the plaintiff reported previous back pain to a number of medical witnesses:
(i) Dr Yun said the plaintiff reported similar back pain in 2008, which improved in three days with supportive care; in 2005, he was told of lumbar disc protrusion;
(ii) Dr Slesenger diagnosed an aggravation of pre-existing symptomatic degenerative disease of the lumbar spine and was aware of a past history of back pain, possibly work related, in 2005, and he received treatment in 2008;
(iii) Dr Mutton obtained a history of low-back pain;
(iv) Mr Carey reviewed the 2005 CT scan report and said the plaintiff was predisposed by significant pre-existing degenerative changes in the lumbar spine which dated back to 2005.
111 In respect of an aggravation to a pre-existing condition, Southwell and Teague JJ, in Petkovski v Galletti,[64] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[65]
“… 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 the additional impairment ….”
[64][1994] 1 VR 436
[65] at 443
112 Where the injury for which compensation claimed is an aggravation injury, the additional impairment must itself involve a permanent serious impairment.
113 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the work injury was “serious”.
114 Prior to the work injury, the evidence is that the plaintiff was generally in good health, he suffered pre-existing back pain, on occasions, due to the manual work he was performing, for which he received conservative treatment from his general practitioner and chiropractor. He was able to continue working in a physically demanding role for a number of years prior to the sneezing incident. He was physically active, playing sport of squash, tennis and basketball. The plaintiff’s evidence was that the pain he suffered following the sneezing incident was significantly different to the pain he suffered prior to the injury. The evidence is that following the sneezing incident, he returned to work, working modified hours and duties. He returned to full hours in the cake department but the work was less physically demanding than his work as a baker. Ultimately, he could no longer manage the work because of his back pain. He did not return to his sporting activities.
115 I accept that as a result of the work injury, the extent of the additional impairment the plaintiff has suffered is the difference between generally being in good health, suffering some back pain doing manual work, but continuing to work as a baker and engaging in sporting activities, to a position where he has no capacity for work.
116 I accept that the work with the employer is responsible for the additional impairment suffered by the plaintiff. I accept the plaintiff cannot return to pre-injury employment. I accept the medical evidence is that the plaintiff now has no work capacity.
117 I am satisfied the plaintiff’s impairment is permanent. I note that the impairment has remained since 2011. There is no medical evidence to suggest the impairment will improve. In fact, Professor Bittar, Dr Slesenger and Dr Mutton said the restrictions were permanent. Given the plaintiffs age of 45 years, this is particularly notable. I am satisfied it is fair to describe the consequence of the plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases in the range. The plaintiff, therefore, satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments. No element of mental component is taken into account in this assessment; indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
118 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The statutory test – loss of earning capacity
119 The statutory test under the Act requires the worker to have a loss of earning capacity of 40 per cent or more, measured by comparing the worker’s gross income before his injury and after the injury. I accept that there really is not any contest in relation to the work capacity. Both occupational physicians are in agreement that the plaintiff either has no work capacity or, at best, a possible work capacity of nine hours a week, which is the view of Dr Mutton. Dr Mutton noted that there was no functional component. Dr Slesenger concludes that there is no work capacity and no retraining capacity, which also is the view of the treating general practitioner. I accept that the evidence is that the plaintiff has no retained work capacity, and has lost at least 40 per cent of his pre-injury capacity.
120 I am also required to consider issues of retraining and rehabilitation pursuant to s134 AB (38)(g) of the Act. The plaintiff’s evidence was that he received some assistance. I accept that the plaintiff has attempted to return to study. He sought to retrain himself into a new area and get back to something which he hoped he might be able to manage. That has proved not to be the case. The plaintiff was referred to the Barbara Walker Centre for Pain Management. He has attended and been reviewed by Dr Charles Kim. He has been placed on the wait list for the START Information session, towards the pain management program to improve self-efficacy, and has an active self-management approach to his chronic pain condition. I am satisfied that the plaintiff has complied with the requirements of retraining and rehabilitation.
121 Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
122 Therefore, I am satisfied that the plaintiff has satisfied the 40 per cent requirement and sustained a “serious injury” within s134AB of the Act.
123 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering and loss of earning capacity is successful.
124 I will hear the parties on costs.
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