Kamphouk v National Fleet Network Pty Ltd
[2011] VCC 1478
•2 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-03924
| SISOMPHONE KAMPHOUK | Plaintiff |
| v | |
| NATIONAL FLEET NETWORK PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 and 12 August 2011 |
| DATE OF JUDGMENT: | 2 September 2011 |
| CASE MAY BE CITED AS: | Kamphouk v National Fleet Network Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1478 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – pain and suffering damages and loss of earning capacity – causation – intervening event – scarring.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with | Holding Redlich |
| Ms F Ryan | ||
| For the Defendant | Mr I S Gourlay | Minter Ellison |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 1 September 2010 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant. The plaintiff alleged the injury to his lower back occurred in or about April 2004. The body function which the plaintiff says has been lost or impaired is his lower back.
2 The plaintiff also applies for leave pursuant to s.134AB(16)(b) of the Act to bring proceedings to recover damages for injuries, in particular, under the heading of “permanent serious disfigurement”. The permanent serious disfigurement was scarring to the plaintiff’s abdominal region following surgery for his low-back injury.
3 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
4 Mr A Ingram appeared with Ms F Ryan of counsel for the plaintiff and Mr I Gourlay of counsel appeared for the defendant.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; • The plaintiff tendered the following documents: ƒ Exhibit A, the Plaintiff’s Court Book (“PCB”), pages 19-124 and
pages 125-149;
ƒ The Defendant’s Court Book (“DCB”), pages 1-13, pages 20-27,
pages 34-39 and page 142.
• The defendant tendered the following documents:
ƒ Exhibit 1, the Defendant’s Court Book, pages 40-43, pages 46-141,
and pages 143-149.
6 The decision that I have to consider is whether or not the plaintiff has satisfied the serious injury test for permanent serious impairment or loss of a body function to his lower back.
7 The plaintiff also has to establish that the scarring to his abdomen satisfies the serious injury test for permanent serious disfigurement.
8 At the commencement of the application, Mr Gourlay, on behalf of the defendant, stated that the issues for consideration were:
(a) causation in respect of the back injury was in issue; (b)
whether the intervening incident in August of 2009 was the cause of the current symptoms and consequences suffered by the plaintiff;
(c)
whether the consequences of an injury rather than examining the injury itself met the “very considerable” test as required under the legislation;
(d)
whether the plaintiff satisfied the test for loss of earning capacity, being greater than forty per cent; and
(e)
whether the scarring or permanent serious disfigurement satisfied the “very considerable” test as required under the legislation.
The Statutory Scheme
9 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s.134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
10 The plaintiff seeks a serious injury certificate for permanent serious disfigurement pursuant to sub-paragraph (b) of the definition for serious injury as set out in s.134AB(37) of the Act. The test for serious injury is the same as the other categories of serious injury set out in the serious injury definition in the Act. In Ingram v Ingram,[1] Callaway JA stated:
“Quite apart from authority, it is important not to read para(b) in isolation. ‘Permanent serious disfigurement’ within the intendment of the statute must be such disfigurement as bears comparison with such injuries as serious long-term impairment of a bodily function, severe long-term mental illness and loss of an unborn child.”[2]
[1] [1996] 2 VR 435
[2] at 438
11 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[3]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[4]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)
Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[3] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[4] Barwon Spinners, at paragraph 33
12 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
13 The plaintiff was born in Laos on 7 July 1955 and is now aged fifty-six years. The plaintiff migrated to Australia in March 1976. He is a married man and has two children. He presently lives with his wife in Dingley Village. The plaintiff’s children are adults and independent.[5]
[5] PCB 20
14 The plaintiff initially was employed at General Motors Holden in Port Melbourne as a machine operator. He remained in that employment for some five years until 1981. The plaintiff then transferred his employment to a quality control inspector at Mercedes Benz Trucks in Mulgrave. He worked in that position for a period of approximately five years. The plaintiff then transferred his employment to Net Bus as a mechanic, where he remained for approximately two years repairing, servicing and maintaining buses. He then had a short period of employment at Princes Bus Lines in Oakleigh, before moving to the defendant in approximately 1989. The plaintiff remained in employment with the defendant from 1989 until 7 July 2005 when his employment was terminated after the accident.[6]
[6] PCB 20
15 The plaintiff started employment at Attachment Hire and Service (AHS) on 19 October 2006. His employment at this business was fitting speed limiters to forklifts. The plaintiff obtained this employment himself. The employment with AHS was assessed and approved by his treating neurosurgeon, Mr Brazenor, and the return to work consultants for CGU, the insurers for the defendant in this case.
16 The plaintiff ceased employment at AHS in October 2009. The plaintiff stated that he was unable to continue to work due to the level of pain he suffered in his back.[7] The plaintiff has not returned to paid employment since that time.
[7] PCB 24
The Injury with the Defendant
17 The plaintiff sets out the circumstances in which he was injured in his affidavit sworn on 16 April 2010. He states that his symptoms came on as a result of work on 24 April 2004 when he was working on a front-end loader with a fellow employee. The task being performed by the two employees was changing of hydraulics on cylinder rods to a front-end loader.[8]
[8] PCB 21, paragraph 7
18 In the course of his employment with the defendant, the plaintiff was required to perform heavy manual lifting tasks in order to complete his mechanical repairs to various machines. The plaintiff stated that after performing the work on or about 24 April 2004, he developed right thigh pain in the week following. The pain then became more intense and involved his lower back.
19 The defendant does not contest that the accident occurred on 24 April 2004. There was also no contest from the defendant that the plaintiff was injured as a result of that work accident. The issue was whether or not the injury to the lower back with its radiculopathy to the right and left legs was a consequence of the April 2004 accident. The defendant’s case was the intervening and later accident said to have occurred on 17 August 2009 was the cause of the plaintiff’s injury. On that date, the plaintiff was said to have stepped off a forklift and injured himself. The plaintiff’s case is that the injury which occurred in April 2004 has had continuing consequences for him right up to the present time.
The Plaintiff’s Medical Treatment
20 The plaintiff was injured on 24 April 2004 whilst lifting heavy hydraulic cylinders at work when he noted pains in the back of his right thigh and knee. On 29 April 2004, the plaintiff attended Dr Baré at the Valewood Clinic. This Clinic had a specialisation in occupational health. Dr Baré found limitation of straight-leg raising on examination and prescribed Vioxx as an anti- inflammatory.[9]
[9] PCB 33
21 The plaintiff continued to have persisting back and leg pain. Dr Baré sent the plaintiff for a CT scan of his lumbosacral spine on 10 May 2004. The CT scan showed that there was a small non-calcified soft-tissue mass posteriorly arising from the disc on the right side, with some indentation of the right S1 nerve root at the L5-S1 level. The conclusion by Dr J Stuckey, radiologist, was that the major abnormality is the presence of a small posterolateral right- sided L5-S1 disc prolapse.[10]
[10] PCB 125
22 On 11 May 2004, Dr Baré prescribed Prednisolone, 25 milligrams to be taken twice daily. The plaintiff was to remain on restricted duties as he had been from the commencement of his treatment on 29 April 2004. Dr Baré referred the plaintiff to Mr A Drnda.[11]
[11] PCB 35
23 The plaintiff attended Mr Armin Drnda, consultant neurosurgeon, on 26 May 2004. Mr Drnda found that the plaintiff had signs of mild sciatica which were in keeping with the findings on the CT scan. Mr Drnda advised the plaintiff to cease work and dedicate some time to his physiotherapy and regular exercises with walking in an attempt to treat the condition conservatively. At that time, Mr Drnda did not think that surgical treatment was appropriate.
24 Mr Drnda referred the plaintiff for an MRI scan of his lumbosacral spine which was conducted on 25 August 2004.[12] Mr Drnda’s opinion was that the L4-5 disc had an annular fissure without significant protrusion. At the L5-S1 disc there was a broad-based central disc protrusion causing mild central stenosis, however without neural compression. Mr Drnda diagnosed that the plaintiff suffered from low-back discogenic pain. He was of the view that the plaintiff ought to maintain conservative treatment, including walking, and that the plaintiff avoid bending, twisting or any heavy lifting. In short, Mr Drnda was saying that the restrictions were completely incompatible with the plaintiff’s normal work as a mechanic.
[12] PCB 38, 126 and 127
25 The plaintiff changed his general practitioner from Dr Baré to his usual general practitioner, Dr Pereira, in July of 2004. Dr Pereira certified the plaintiff fit for light duties only. Dr Pereira encouraged the plaintiff to continue with physiotherapy and hydrotherapy in an attempt to treat him conservatively.
26 In October of 2004, the plaintiff had complained of a burning sensation in his left foot. It is the first time that the plaintiff had mentioned the symptom of burning in the left foot. His previous complaints were of right leg pain with burning right down to his right foot and the low-back pain.[13]
[13] PCB 43
27 In December of 2004, Dr Pereira certified the plaintiff fit for restricted duties for eight hours a day, five days a week.
28 Mr Drnda remained as the treating neurosurgeon until he referred the plaintiff to Mr Graeme Brazenor, neurosurgeon, in May of 2005 for a second opinion.[14]
[14] PCB 38
29 Mr Graeme Brazenor, neurosurgeon, first examined the plaintiff on 9 June 2005. At that time, the plaintiff was complaining of low-back pain and left leg pain. The plaintiff apportioned the pain between the two areas as 50-50.[15]
[15] PCB 52
30 The plaintiff’s employment with National Fleet Network was terminated on or about 7 July 2005.[16] At the time of his termination, he was working approximately 30 hours per week. The restriction to his working full-time on restricted duties was that he could not stand or tolerate the pain in his leg and lower back. The plaintiff remained unemployed until he obtained employment with AHS on 19 October 2006.
[16] PCB 23
31 In October 2006, Mr Brazenor certified the plaintiff fit for light duties on full- time work with the restriction of wearing a back brace. The back brace was said to extend from the lower back right up the full length of his back in order to limit the amount of bending the plaintiff could perform. Mr Brazenor thought that the job description and return to work plan provided to the plaintiff in November 2006 had too much bending involved in the duties.[17]
[17] PCB 65
32 The plaintiff’s employment at AHS was to fit speed limiters to forklifts. This was light duties employment. It had been assessed and approved by Mr Brazenor and the occupational health consultants from CGU Insurance. The initial employment was for four hours a day, five days a week.[18]
[18] T 38, L7-10
33 During the course of his employment with AHS the plaintiff took Panadol, Panamax or Nurofen to assist him with the level of pain and wore the back brace prescribed by Mr Brazenor. He continued in that employment until October 2009, when he could no longer continue with the employment at AHS due to the pain that he was suffering to his back and legs.[19]
[19] PCB 24
34 Mr Brazenor referred the plaintiff for a further MRI scan of his back which was conducted on 12 February 2008. The MRI disclosed that there was a symmetric disc bulge at L4-5 involving minor subarticular stenosis of the traversing right L5 nerve. There was a small central disc protrusion shown at L5-S1 without neural displacement and there was mild bilateral bony foraminal stenosis at L5-S1.[20] Mr Brazenor advised at this stage that surgery was not required and that the plaintiff should persist with his work with the restrictions referred to earlier in these reasons.
[20] PCB 128
35 The plaintiff continued to work at AHS in his capacity as a light duties assembler of speed limiters for forklifts. On or about 18 August 2009, the plaintiff stepped back or off a forklift and suffered severe pain to his back and legs.[21] An MRI scan was conducted on 22 August 2009 which revealed an asymmetric generalised disc bulge at the L4-5 level with annular fissure, worse on the right than the left, resulting in mild subarticular stenosis of the traversing right L5 nerve. There was also a broad-based right paracentral disc protrusion demonstrated at L5-S1 with posterior displacement of the right S1 nerve. This was said to be a new finding on the MRI scan from previous MRI scans.[22]
[21] PCB 27
[22] PCB 129
36 On the basis of the MRI findings, Mr Brazenor recommended surgery for the plaintiff on 22 August 2009.[23] The plaintiff ceased his work at AHS due to the pain in his back in October 2009.
[23] PCB 79
37 On 4 May 2010, the plaintiff underwent surgery involving a multi-level discectomy fusion and an implantation of a disc prosthesis and anterior lumbar interbody fusion and an L5-S1 and L4-5 disc arthroplasty involving an artificial disc implantation. Mr Brazenor was the surgeon. As a result of the surgery, the plaintiff developed Deep Vein Thrombosis (DVT) and was prescribed Warfarin for a period of six months.[24]
[24] PCB 27
38 After the surgery, the plaintiff underwent two CT scans of his lumbar spine on 10 May 2010 and 15 February 2011.[25] The scans revealed that the surgery has been successful, in the sense that the fusion had been completed at L5- S1 and that the disc prostheses were intact and well-placed.
[25] PCB 130-132
39 The plaintiff has continued to have symptoms in respect of his left leg and low- back. The left leg symptoms are pain right down to the foot with a burning sensation in the foot. He also has swelling in the left thigh as a complication of the surgery.
40 On 23 June 2011, Dr Blombery, consultant vascular physician, ordered a duplex ultrasound for the plaintiff’s left leg. The duplex ultrasound revealed that the plaintiff suffers from recurrent thrombosis in his left leg common iliac vein.[26]
[26] PCB 89 and 92
41 The plaintiff’s current treatment is overseen by his general practitioner, Dr Pereira. Mr Blombery recommends that further treatment be undertaken in respect of the DVT complication. Dr Pereira continues to monitor the pain control of the plaintiff with Panadol, Panamax and sometimes Nurofen. The plaintiff takes aspirin to assist in the management of his blood clot difficulties in his left leg.
Causation
42 Mr Gourlay, on behalf of the defendant, submitted that the cause of the injury that resulted in the surgery in May of 2010 was the incident at work in August of 2009 at AHS. It was submitted that the difference between the MRI findings in February 2008 and 22 August 2009 demonstrate that a new injury occurred in the intervening period. This is an attractive argument at first blush.
43 Mr Brazenor, in his report dated 6 April 2010,[27] stated that:
“On 11 August 2008, at which time he told me that he had bent and twisted in his garden a couple of weeks previously and exacerbated his condition, I found no real change in examination findings and reassured him.”
[27] PCB 80
44 In the same report, Mr Brazenor sets out that the new lesion was the paracentral disc protrusion at L5-S1 with a mass effect on the right S1 nerve root. The same condition of a diffused bulge at L4-5 causing lateral recessed stenosis on the right side at that level still remained from a time prior to 2009.
45 The conclusion to be drawn from the history taken by Mr Brazenor and his observations of the two relevant MRI scans is that the initiating injury in 2004 has continued and that an extra “assault” on the plaintiff’s back has caused a separate new lesion at the L5-S1 level. The symptoms suffered by the plaintiff were the same before the August 2009 incident and the same after the August 2009 incident. In short, the effect on the plaintiff of this injury is the same and it is a continuation from the original cause of the injury to his back which occurred in 2004.
46 Mr Brazenor, in his report to the plaintiff’s general practitioner, Dr Pereira, dated 31 August 2009, stated as follows:
“I reviewed Mr Sisomphone Kamphouk today and an MRI on 22 August 2009 shows that he has pushed out quite a large protrusion on the right side at L5/S1 and clearly this disc which was injured more than four years ago is in its death throes. There is also some right-sided foraminal stenosis at L4/5.”[28]
[28] PCB 79
47 Mr Brazenor continued with this re-injury diagnosis in his report to the plaintiff’s solicitors dated 6 April 2010, wherein he stated:
“I wrote a letter to CGU Workers Compensation on 1st September 2009 stating: ‘This is a clear re-injury of the disc injured 24th April 2004 in the course of his bending and lifting duties at work’.”[29]
[29] PCB 81
48 Mr Stanley Schofield, orthopaedic surgeon, was asked to examine and give an opinion on the plaintiff’s medical condition. In respect of the position said to be taken by Mr Brazenor that there was “a new injury”, Mr Schofield stated:
“Mr Brazenor stated that this was ‘a new injury’. This is not so, but it does represent an acute aggravation of the persisting prolapse and is, therefore part of the original injury which occurred on 24th April 2004.”[30]
[30] PCB 98
49 I find and accept that Mr Schofield has accurately assessed the chain of causation in relation to the back injury to the plaintiff in this case. Mr Schofield finds that the original cause for the plaintiff’s back injury is the April 2004 incident. Mr Brazenor’s position is a little bit inconsistent, to the extent that, on the one hand he says that the injury is caused by the 2004 incident, which are the references I refer to above, and on the other hand, he says that the injury is a new one occurring in August 2009.
50 Mr John O’Brien, orthopaedic surgeon, provided two reports to the insurers for the defendant dated 9 February 2010[31] and 11 March 2010.[32] In his latter report on the issue of causation, Mr O’Brien was of the following opinion:
“As you are aware, I did not examine the patient at the time of his initial injury but certainly the history does suggest that the original pathology improved but did not resolve, leaving the patient with back pain and he has had a recurrence of the original pathology as a result of the August 2009 incident. His history to me suggests more a continuation of an old back injury rather than a new injury with a totally different pathology.”
[31] PCB 120
[32] PCB 124
51 It is clear from Mr O’Brien’s opinion that he was of the view that the injury to the plaintiff occurred in April 2004 and continued up until the present time. The reports of Mr O’Brien pre-date the surgery and are not of any great assistance to me in determining whether or not the plaintiff has a work capacity or what his current symptoms are. The force of Mr O’Brien’s report really goes to the issue of causation. I find that Mr O’Brien’s opinions support those of Mr Schofield about the cause of the plaintiff’s difficulties.
52 The evidence in this case clearly supports the proposition that the symptomology of low-back pain, referred pain down the right leg and referred pain down the left leg have all manifested themselves subsequent to the April 2004 incident and prior to the incident of August 2009. I conclude that the 2004 incident is the cause of the ongoing symptoms and consequences to the plaintiff in this case.
The Credit of the Plaintiff
53 The plaintiff had worked with the defendant from 1989 to 2004 without incident. In April 2004, he injured his lower back, with resulting pain, initially in his right leg, and subsequently, symptoms in his left leg as early as 2005. In June of 2004, the plaintiff went back to work on light duties.[33] By December of 2004, he was certified fit for light duties of eight hours a day, five days per week.[34] The plaintiff’s evidence was that by the middle of 2005 he was having trouble attending work for the full forty hours per week. He was coping with thirty hours per week when, on or about 7 July 2005, he was made redundant by the defendant.[35] The history just recounted clearly indicates that the plaintiff is motivated to work and rehabilitate himself, and I accept that he had done all he could at that time to get himself back to work with his back condition.
[33] T 33, L9-13
[34] T 34, L3-6
[35] T 35, L22-23
54 In or about October 2006, the plaintiff sourced and obtained alternative employment at AHS.[36] In the course of his work at AHS, Mr Brazenor was so concerned about the plaintiff’s willingness to participate in the work that he prescribed a back brace to stop the plaintiff from bending.[37]
[36] T 37, L22-25, T 76, L1-12
[37] T 43, L18-28
55 Subsequent to surgery, the plaintiff attempted a further return to work program as a driver. In May of 2011, he attempted working as a driver for a period of four hours per day. He was unable to continue with that work and lasted in his return to work attempt for a period of two weeks. He had to cease that return to work due to the pain in his lower back and now left leg.[38]
[38] PCB 20
56 The plaintiff has undergone serious back surgery and despite symptoms to his lower back and legs, both prior to and subsequent to the surgery, he has attempted return to work programs. I find that the plaintiff is a person who would, if he could, return to work and get on with his life. Unfortunately, the position for him is that he can no longer work without exacerbating the pain and symptoms to his lower back and left leg.
57 I have had the advantage of seeing the plaintiff in the witness box giving his evidence and being cross-examined. I accept that he was doing the best he could to give honest and truthful answers. There were times during the course of his evidence when he was unable to recall particular details of when his symptoms commenced or to recall what histories he specifically gave to some doctors. I accept the plaintiff as a witness of truth.
Scarring/Permanent Serious Disfigurement
58 The plaintiff sought a serious injury certificate pursuant to s.134AB(37)(b) of the serious injury definition. The plaintiff is required to prove that the permanent serious disfigurement, being the scar to his abdomen as a result of the back surgery, satisfies the requisite test under the legislation.
59 The incision is 13 centimetres in length and 1.0 to 1.5 centimetres in width.[39] The incision commences from below the umbilicus to the suprapubic point. There were four photographs of the scarring in the PCB from pages 112 to 115. During the course of the hearing, an inspection was made of the scarring to the plaintiff’s abdomen. It is apparent that the scar has pigmentary changes along its length. The colour of the scarring is darker and appears a little purple in colour. There is irregularity in the scar, including hardness as described by Mr Behan, plastic and reconstructive surgeon. The plaintiff also complained of a sensory deficit in the lower left abdominal wall, but Mr Behan is not sure of the cause of such a deficit.[40]
[39] PCB 105
[40] PCB 105
60 I have regard to the statements made by Brooking J in Baker v Transport Accident Commission[41] where his Honour said that he had regard to the number of scars, their location, their size and the degree of obviousness as parameters for determining whether or not a scar was serious, in the sense of the Act. The scarring in this case is to a middle-aged man. The position of the scar on his body is such that when he is clothed it is not obvious to anyone. Whilst the scar is quite significant in size, the only part of it that would be on display when the plaintiff was at the beach in bathers would be the top half of the scar. It seems that his basic complaint about the scar is that his wife does not like it. The plaintiff stated in evidence:[42]
[41] [1997] 1 VR 662 at page 664
[42] T 93, L5-19
“Well it annoys when you touching it, not happy, you know when I look at
it, even sleeping when you touch it you feel something.
Q: Would you wear board shorts?--- A: Normally I wear shorts at the beach with no shirt or anything but I
don’t know if I’m able to do that anymore.Q: You don’t do that anymore?--- A: I don’t know if I can do that anymore. Q: Why is that?--- A: Well it’s a scar and I’m not happy.”
61 I find that the scar does not satisfy the requisite test under the legislation for serious injury and I dismiss that part of the application.
The Evidence of Mr Brazenor, Neurosurgeon
62 An unusual feature of this particular application was that the plaintiff’s barrister, Mr Ingram, both in the opening and in the closing address, attacked Mr Brazenor for his opinions. Mr Brazenor operated on the plaintiff on 4 May 2010. There are three reports subsequent to the surgery from Mr Brazenor.
63 In a report dated 3 September 2010 to Dr Pereira, general practitioner, Mr Brazenor gives the following opinion:
“He is fully fit to return to forklift maintenance work, and I urged him
(again) to go out and get a job.
He is four months after his spinal operation and he is top of the class. There are really very few constraints on what he can do with his low- back now.”[43]
[43] DCB 36
64 It is to be remembered that at this time Mr Brazenor observed and noted that the plaintiff still had left leg swelling after the operation. He had prescribed an elastic stocking to be worn at all times when he is not in bed or having a shower. At the time, in September 2010, he had prescribed Warfarin to the plaintiff.
65 The next report of note is dated 18 October 2010 to Dr Pereira. In that report, Mr Brazenor stated:
“I am distressed that he has not yet found a job and a brief reading of the Riot Act was held today. If he doesn’t get a job in October or November then he won’t get one until well into the new year. He should be encouraged to get off his butt and do it.”[44]
[44] DCB 35
66 It is fair to say that this is reasonably colourful language to be used by a surgeon some six months after the implantation of a Maverick artificial disc at L4-L5 and a fusion at L5-S1. Mr Brazenor had received complaints from the plaintiff that he still had a click in his low-back and that his left thigh was still larger than the right thigh. Mr Brazenor acknowledged that the plaintiff had suffered from a left common iliac vein stenosis after the operation.
67 The final report from Mr Brazenor is dated 9 February 2011.[45] Mr Brazenor certified the plaintiff fit for unrestricted duties. In February of 2011, Mr Brazenor withdrew Warfarin medication and advised the plaintiff to take half an aspirin per day in its place. This medication is to deal with the ongoing swollen left thigh which resulted from the operation. It is clear from the rest of the text of that report that Mr Brazenor has lost all faith in the plaintiff and his attempts to rehabilitate himself.
[45] DCB 34
68 I accept Mr Brazenor’s opinion that the accident in April 2004 was the cause of the compromise to the plaintiff’s lower back. I also accept Mr Brazenor’s opinion that the levels that he operated on in May of 2010 were injured as a result of the accident in April of 2004. Mr Brazenor’s opinion is that the events of August 2009 have exacerbated a previously injured spinal structure in the plaintiff’s lower back. I do not accept Mr Brazenor’s opinion of the plaintiff’s current work capacity and condition. It is clear on the evidence that the plaintiff still suffers pain to his lower back and into his left leg. The plaintiff has restriction of movement of his back as a result of the surgery, and pain. I prefer the evidence of other medical practitioners in this case as to the plaintiff’s current medical state and ability to work in the future.
Medical Opinions
69 In this application, a large number of medical reports were tendered. The reports of Dr Baré, Mr Drnda, Mr Brown, Mr Baker and Mr Fish are all dated in the year 2007 or earlier. They are old reports. However, the histories contained within those reports collectively corroborate the plaintiff’s evidence, both in his affidavits and in his evidence in the witness box. The test for serious injury that I have to apply to this application is to be done on the current state of the plaintiff’s injury.
70 The plaintiff’s general practitioner, Dr Pereira has provided a number of reports which are set out in the PCB. The latest and most relevant report is dated 13 April 2011. Dr Pereira reports that the plaintiff was complaining of suffering low-back and left leg pain on 13 April 2011. He also complained of a left foot burning sensation and of left leg swelling occasionally. The history taken included that the plaintiff was taking Panamax for pain and vitamin D daily. He was also taking aspirin daily as the replacement medication for Warfarin to deal with the vascular complication in his left leg following the surgery. Dr Pereira, on examination, states that the back movements were generally slowly decreased and that there was a decrease in sensation to light touch on the left foot.
71 Dr Pereira stated that the plaintiff probably is not able to work in his pre-injury duties. He thought that the plaintiff may be able to attempt more sedentary work where there is no repetitive bending of the back or heavy lifting involved.
72 Professor Richard Bittar, consultant neurosurgeon, provided a medico-legal report dated 18 June 2011.[46] On examination, he found the plaintiff had minimal lower back tenderness and no guarding. The plaintiff’s range of lumbar flexion and extension were mildly restricted. The only neurological deficit that he could detect was a mild weakness of the right extensor hallucis longus.[47]
[46] PCB 82
[47] PCB 84
73 Professor Bittar thought that the plaintiff was someone who could be reviewed by a pain specialist given the level of pain suffered by him. He thought that the plaintiff would continue to suffer from significant pain and disability into the foreseeable future.
74 Professor Bittar’s opinion about the plaintiff’s work capacity in the future was as follows:
“In my opinion he is permanently incapacitated for pre-injury employment as a motor mechanic. Taking into account his relatively limited English, age, training, skills and education, as well as the severity of his work- related lumbar spine injury, it is very unlikely that he would be able to procure and maintain suitable employment.”[48]
[48] PCB 85
75 Professor Bittar was of the opinion that the incapacity was permanent. He stated that the plaintiff was at risk for a deterioration in his current state of symptoms given the fact that he has had a lumbar fusion.
76 Dr Peter Blombery, consultant vascular physician, provided a medico-legal report dated 11 July 2011.[49] Dr Blombery’s expertise is in vascular conditions. When he examined the plaintiff, he formed the view that a duplex scan ought to be performed on the veins of the left leg. He states that the scan revealed that there is an ongoing thrombosis in the area of the left common iliac vein. The result of this thrombosis is that there is swelling in the left leg as described by the plaintiff. Dr Blombery expressed the opinion that the heavy work performed by the plaintiff up to and including 24 April 2004 was a cause of his current incapacity.[50] Dr Blombery was also of the opinion that the plaintiff was not capable of returning to his pre-injury employment or to any other employment for which he is suited by reason of age, training, skills and experience.[51]
[49] PCB 87
[50] PCB 90
[51] PCB 91
77 Mr Stanley Schofield, orthopaedic surgeon, provided a medico-legal opinion on 22 June 2011 in respect of the plaintiff.[52] Mr Schofield noted during his examination of the plaintiff, that his range of spinal flexion was about 70 degrees, extension was limited and painful to 20 degrees and other movements were normal. He noted that straight leg raising was restricted to 60 degrees bilaterally which reproduced pain at the back of each leg, more on the left than the right. Mr Schofield also noted wasting in the right leg. These examination findings are consistent with the evidence given by the plaintiff about the limitations that he now suffers. Mr Schofield is certain that the original injury to the plaintiff occurred on 24 April 2004. He notes that the jarring to his back in the August 2009 incident is an aggravation of a pre- existing symptomatic prolapse at the lumbosacral level causing right sciatica, originally in 2004 and persisting to the date of August 2009. Mr Schofield was of the opinion that the plaintiff was incapable of returning to his pre-injury employment or any other employment for which he is suited by age, training, skills and experience.
[52] PCB 93
The Consequences
78 I have read the two affidavits sworn and filed on behalf of the plaintiff in this matter. The affidavits dated 16 April 2010 and 28 July 2011 contain the evidence and set out clearly the impact of the injury to the plaintiff’s lower back.
79 I have carefully considered the evidence of the plaintiff and also his oral evidence which was tested by Mr Gourlay during cross-examination. I formed the view that the plaintiff gave his evidence in a straightforward manner and did not exaggerate or avoid difficult questions. I accept his evidence and I accept him as a witness of truth. He gave clear evidence about the consequences of the injury to his lower back and legs and what effect it has had on him.
80 I find the consequences which I am satisfied the plaintiff has suffered as a result of the injury to his lower back are as follows:
•
The plaintiff suffered pain and limitation of movement to his back as a result of the injury in April 2004. He continues to suffer from the limitation of movement and pain in his lower back, even after the surgery of May 2010. The pain and limitation of movement combined restrict his ability to work.
•
The plaintiff is careful in the manner in which he moves about and his ability to sit and stand for any length of time is restricted by the pain.[53]
•
Since the surgery on 4 May 2010, the plaintiff’s pain in his right leg has improved but he still has a left leg burning pain and the left leg is swollen, “swollen very bad”.[54]
•
The plaintiff gave evidence that subsequent to the surgery, his back is a bit better, that he can do a bit of bending but if he slips it is painful; that is, sometimes he gets a “sharp pain come in and when I twist and turn I hear a clunking noise”.[55]
•
The plaintiff now suffers from a vascular complication arising from the surgery which was necessitated by the back injury. The vascular complication is one of a thrombosis in his left leg which requires him to take aspirin on a daily basis. The leg itself is swollen and he complains of pain in the left leg as a result.
•
The plaintiff still suffers from a burning sensation in his left foot on occasions and this is as a result of the injury to his lower back going back to April 2004.
•
The plaintiff has had his sleep patterns interrupted. Prior to the surgery he had pain in his back and his sleep was disturbed. However, since the surgery, he has complained of a clunking noise. He was asked:
[53] PCB 25
[54] T 68, L11-15
[55] T 68, L20-23
Q: “Are you able to sleep better?--- A:
Sleep, I wake up a couple of times a night because of the noise, the clunking noise, and sharp sometime[s] comes in.”[56]
[56] T 69, L7-9
The interruption to his sleep and the sensation of the clunking noise in
his back is a significant consequence for the plaintiff.
•
The plaintiff has a scar as a result of the operation for his lower back injury. Whilst the scarring of itself is not sufficient to “qualify” for a serious injury certificate in its own right, it is nevertheless a consequence for the plaintiff and he has expressed in his evidence his concern about it.
•
The plaintiff stated that cooking and other domestic duties were performed by his wife and that he was not required to do those tasks. However, he stated that even when he was going for the prescribed walks of thirty minutes or more, that he would end up with a burning sensation in his left foot. Even a simple task of walking developed serious pain for him and I find that that is a significant consequence for the plaintiff.
Loss of Earning Capacity
81 The plaintiff has satisfied the narrative requirements to obtain leave in relation to loss of earning capacity and must also establish that:
(a) at the date of the hearing he has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and also (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 82 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 83 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
84 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
85 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
86 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
87 In this application, I have referred to the opinions of Mr Schofield, Mr Blombery, Professor Bittar and Dr Pereira in respect of the plaintiff’s future work capacity. I accept their opinions that the plaintiff will not be able to obtain suitable employment due to the physical injuries and the consequences of them on him.
88 Ms Margaret Leitch, occupational therapist, has prepared a vocational assessment dated 4 August 2011 for the purposes of this application.
89 Ms Leitch lists the restrictions set out in the medical reports for the plaintiff’s work capacity as follows:
•
Moderate to heavy manual handling, including lifting, carrying, pushing or pulling
• Frequent bending or twisting of the lower back • Persistent stooping (a degree of forward flexion of the lower back) • Sustained sitting • Prolonged standing or walking. 90 In her report,[57] Ms Leitch concludes as follows:
“I conclude that no recognised occupation in the open market for which Mr Kamphouk is likely to qualify represents suitable employment and this situation will continue for the foreseeable future.”
[57] PCB 132
91 I accept Ms Leitch’s opinion and particularly those of the medical practitioners, Messrs Schofield and Blombery, Professor Bittar and Dr Pereira, and find that the plaintiff will be unable to obtain employment in the foreseeable future due to the limitations and symptoms he now experiences as a result of the accident on 24 April 2004.
Conclusion
92 For the reasons previously expressed in this decision, the plaintiff’s application for serious injury in respect of the scarring or permanent serious disfigurement is refused.
93 After a consideration of all of the evidence and taking into account all the consequences suffered by the plaintiff as a result of his lower back injury and referred pain into his legs, I am satisfied that such consequences, when judged by a comparison with other cases in the range of possible impairments, can be fairly described as being more than “significant” or “marked” and as being at least “very considerable”.
94 Further, I find that as a result of the injuries and the symptoms suffered by the plaintiff, that his ability to obtain any employment in the future has been destroyed. I found that the plaintiff was well motivated and would obtain employment if he thought he could have and if an appropriate job was available for him. The medical evidence and the expert opinion of the occupational therapist is that the plaintiff’s ability to work has been destroyed for the foreseeable future and permanently.
95 Accordingly, pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages and loss of earning capacity damages in respect of a low-back injury suffered by him on or about 24 April 2004.
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