Karaferis v GM Holden Ltd
[2013] VCC 138
•1 March, 2013
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-11-04444
| PAUL KARAFERIS | Plaintiff |
| V | |
| GM HOLDEN LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13 and 16 November 2012 | |
DATE OF JUDGMENT: | 1 March, 2013 | |
CASE MAY BE CITED AS: | Karaferis v GM Holden Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 138 | |
REASONS FOR JUDGMENT
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Subject:Serious Injury Application; whether employment duties from 2004 to 2009 caused injury to lumbar spine; whether consequences of injury satisfy test for “serious injury”; whether 40 percent loss of earning capacity established.
Catchwords: Serious injury; aggravation of lumbar disc disease.
Legislation Cited: Accident Compensation Act 1985, Section 134AB.
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; AG Staff v Filopowicz [2012] VSCA 60; Grech v Orica Ltd [2006] VR 172.
Judgment: For Plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Ms M Tsikaris | Zaparas Lawyers |
| For the Defendant | Mr J Batten | Wisewould Mahoney Lawyers |
HER HONOUR:
1 Mr Paul Karaferis worked for GM Holden for almost 37 years at its car manufacturing plant at Port Melbourne. He left in September 2009 having accepted a voluntary departure package. By that time he was almost 62 years old and suffering constant pain in his low back, and pain and numbness in both legs.
2 He applies to the court for leave to bring proceedings for damages in respect of injury to his lumbar spine which he alleges was suffered in the course of his employment duties with the defendant, and in particular between 2004 and 2009. To obtain leave he must establish that he suffered a “serious injury” under the provisions and restrictions of s134AB of the Accident Compensation Act 1985 (“the Act”). He seeks leave to claim damages in respect of both pain and suffering and loss of earning capacity.
3 Mr Karaferis relies on part (a) of the definition of “serious injury”[1], claiming to have suffered “serious permanent impairment of the function of” his lumbar spine[2]. Under that definition he must satisfy the court on the balance of probabilities that the injury he alleges to his lumbar spine has resulted in consequences which, when compared with other cases in the range of possible impairments of body function, can fairly be described as “more than significant or marked and at least very considerable”[3], and will remain so for the foreseeable future.
[1]Section 134AB(37)
[2]His claim originally included his left knee, but that was not pursued. He underwent a knee replacement operation in January 2012.
[3]Section 134AB(38)(b) and (c).
4 In addition, to obtain leave to claim pecuniary loss damages, he must satisfy the court that he has suffered a loss of earning capacity of at least 40% measured as set out in the statutory formula in section 134AB(38) (f)[4] .
[4]Section 134AB(38)(e)
5 It is not disputed that the plaintiff suffered injury to his low back in two specific incidents at his work – the first on 1 December 2002, and the second on 10 June 2008 – in each of which he fell to a concrete floor while getting down from a large forklift. The plaintiff’s case, however, is not that either one of those injuries alone constitutes a “serious injury”. His case is that he suffered injury to his low back, which constitutes a serious injury, from the nature of his duties and the stress those caused to his lumbar spine in the course of his employment duties, in particular from about 2004 until his departure in September 2009, including but not solely from the incident of June 2008 (and the earlier one of December 2002).
6 The defendant argues:
(i) That neither of the injuries to the plaintiff’s low back from the two incidents, which it admits occurred, amounts to a serious injury, in that each was a temporary aggravation of an underlying degenerative condition of his lumbar spine which was progressive in any event;
(ii) That there was no injury caused to his low back in the course of his ongoing duties between 2004 and 2009 (apart from the June 2008 specific incident);
(iii) That at the time he left the defendant’s employment he was capable of performing his full duties;
(iv) That even now he is capable of alternative light work, and the reason he is not now working is that he decided to retire by choice rather than incapacity arising from the condition of his back.
7 The evidence consisted of the documents tendered as set out in the attached schedule, and the oral evidence of the plaintiff who was called for cross-examination, and of Mr Brian Barrett, retired orthopaedic surgeon, who was also required by the defendant for cross-examination.
8 As in most cases of this nature, the reliance which can be placed on the plaintiff’s own evidence is very important, as not only the Court, but also doctors whose opinions are in evidence, are heavily reliant upon the plaintiff’s account of when and in what circumstances symptoms commenced, and the extent and nature of such symptoms and their interference with the plaintiff’s activities, lifestyle and capacity to work.
9 I assessed Mr Karaferis as a witness of credibility. My impression was that in court, as well in consultations with doctors since his injuries as described in medical reports, he has genuinely tried to tell the truth to the best of his ability and recollection, and that on the whole that recollection is reliable. I did not detect signs of embellishment or exaggeration, and he made a number of concessions when asked directly about matters which might seem to be against his interests in this claim.
10 I infer from his history that he had no formal training in English, and after arriving in Australia learnt to speak English from interaction at work and in the community. He made no request for an interpreter at any stage, and, indeed, asserted when asked that he could understand cross-examining counsel very well. He speaks with a strong accent which at times made his evidence a little indistinct. He shows a good general understanding of English, but with limitations in grammar[5], and in particular with confusion as to the nuances of tenses. For example, it became apparent that he sometimes answered about his present situation when he was being asked about what it was as at 2002, or 2008, or 2009. His affidavits in part reflect the same type of confusion. This emerged in relation to paragraph 17 of his affidavit of 9 April 2001[6]. I did not attribute those variances to any deliberate attempt to mislead but, rather, to a misunderstanding by him, and or alternatively by his solicitors when the affidavit was drafted, as to whether his capacity to or frequency of riding a bike was being described in the present or at a particular stage in the past.
[5]A reading of transcript confirms this.
[6]Exhibit A
11 My impression of Mr Karaferis was also that he has always been a man strongly motivated to work. He was disinclined to make claims on the WorkCover system, and it is common ground that he had made no WorkCover (or workers compensation or WorkCare) claim during the first 30 years of his employment. After a significant injury to his back in December 2002, he returned to full duties at the end of April 2003, despite a neurosurgeon, Mr McMahon, suggesting surgery on his back at that stage. I regard his continuation in full duties over the following years as reflecting considerable stoicism, as well as liking for and loyalty to his employment.
12 Overall I found that Mr Karaferis’s memory and account of events was reliable and, as I found no prevarication or exaggeration in the manner of his giving evidence, I have relied substantially on his accounts of events except where demonstrably wrong, and also his accounts of the nature and degree of symptoms he has experienced.
Findings as to Plaintiff’s background and pre-injury circumstances
13 Mr Karaferis is now 65 years old. He was born in Greece, left school aged 14 after the second year of secondary school, and worked at a food canning factory until undergoing two years of compulsory national service. He then worked at an aluminium frame manufacture until at age 25 he migrated to Australia.
14 Soon after arriving in Melbourne he obtained employment at Ford Motor Company, buffing the roofs of cars, but after about three months obtained a job at General Motors Holden which was closer to home and involved less travel as he lived in Richmond.
15 From 1972 until 1984 he worked in various manual tasks on the production of motor vehicles, and by 1978 or 1979 was a leading hand in charge of 12 people, in which work he would relieve each of the other workers when they went on breaks. He described the physical level of this work as “medium”.
16 In 1984 he was apparently made redundant and returned to Greece for some seven months, intending to stay, but as he found no job and life was expensive there he returned to Australia. He found a job offer from GMH awaiting him, and in July 1985 again started work for the defendant, this time in Plant 16, packing and loading four cylinder engines for export. For these a forklift was used to place pallets, a cardboard box was constructed and nailed onto the pallet, and a hoist was used to lift an engine into a box on a pallet. This he also categorised as “medium” physical work.
17 He is unsure when he was moved from that section, but by 1993 he was working in the experimental engineering department of the defendant which was where prototype cars were built for new models. His designation there was as a storeman/forklift driver and he remained in that work until the end of his employment with the defendant, in September 2009.
18 From about 2001, the defendant contracted out the provision and maintenance of forklifts, and new larger forklifts were introduced, which from Mr Karaferis’s perception were more useful for the production sections which handled bulk items, but not as useful for the experimental engineering department where he worked. In particular, they were higher and more difficult to climb into and out of as frequently as was needed.
19 During the first 30 years of his employment with GMH he had no significant injuries or medical conditions, and in particular up to December 2002 had not reported to work or his doctor any pain or other symptoms in his lower back.
20 Mr Karaferis has been married for more than 40 years, with three children, all now adults and living independently, although his daughter from time to time lives with him and his wife. He has two grandchildren.
21 Prior to suffering injury to his back he was generally well and fit, although he did not engage in any organised or specific exercise to keep fit. He had played soccer with friends in his younger years. He enjoyed keeping his vegetable garden. He was sociable and enjoyed holding barbeques for which he would purchase and barbeque a whole lamb and have a gathering of people at his home. This occurred three to four times a year. He also attended church regularly with his wife, although I am not convinced that he finds it a hardship having an excuse now to not have to stay there for hours himself when he drops off his wife for services. He used to do more of the shopping, and also maintenance on the house.
The injury and subsequent events
22 On 1 December 2002 Mr Karaferis suffered injury to his low back when he fell to the concreted ground after missing the step while getting down from a high forklift. He worked on in pain for a couple of days, but was then advised by his supervisor to go to the medical centre. He reported intermittent low back pain accompanied by leg weakness and numbness, and also a left knee problem. He was referred for scans, and to a neurosurgeon, Mr McMahon. He was certified unfit to work for some three months, then returned to light duties, and from 28 April 2003, returned to full duties as a storeman/forklift driver in the experimental engineering section, although surgery on his back had been suggested by Mr McMahon. He continued to report back and leg symptoms over the next two years, and was prescribed Voltaren and recommended to take Nurofen as needed.
23 After early 2004, Mr Karaferis concedes that he did not continue to attend often at either the employer’s clinic or his local general practitioner in respect of his back condition, but says that following the December 2002 incident, he had ongoing back pain virtually daily. He took Neurofen, bought over the counter from chemists, to control the pain enough to continue working, and with his normal activities.
24 He continued in the same job as storeman/forklift driver. While Mr Bob Kirkwood was in charge there were always two men working together on each order, so that one stayed in the forklift and the other picked the parts. However, after 2003 or 2004, Mr Matthew Wheaton took over as supervisor of the area, and numbers working in the section were reduced, so that Mr Karaferis had to work alone, driving the forklift and also climbing on and off to pick parts to make up orders. He needed to climb down from a high forklift, manually place the necessary parts into the stillage on his forklift, and then climb back into the forklift to move to the area of the next component parts. He was not challenged that on average he had to climb on and off the forklift between 50 to 100 times, and sometimes 150 times per day, depending on the number of cars being assembled, nor that some of the parts were heavy.
25 It is this period of his duties which is now the main basis of his claim, namely that his duties over the period from about 2004 until he left in September 2009 caused aggravation to his already existing lumbar spinal condition, and that aggravation amounts to a serious injury.
26 On 10 June 2008 there was a further incident alighting from a forklift in which he again suffered an acute exacerbation to his low back causing him to report the injury, and seek medical attention. It resulted in only a few days off work, and follow up treatment in the form of physiotherapy and prescription of anti-inflammatory medication over the next few months.
27 In early September 2009 voluntary departure packages were being offered and he accepted. He was originally scheduled to finish work on 25 September, but that was changed to 11 September 2009. He has not worked since, and not sought alternative employment.
28 Since he ceased work he has complained of serious back symptoms involving constant back pain, sciatica and numbness in both of his legs although more on the left side, and under the soles of his feet. He has had difficulty sleeping due to pain. He has been prescribed and taken Panadeine forte for pain up to 4 tablets per day, and anti-inflammatories. At the time of the hearing in November 2012 he was awaiting notification of an appointment as a public patient through St Vincent’s Hospital neurosurgical unit, where the option of surgery on his back is expected to be discussed. He has resisted the idea of surgery on his back so far, since it was first suggested by Mr McMahon in January 2003, he says because of his wife’s fears that he will become worse.
29 He has also been suffering for at least the last 3 years from a severely osteoarthritic left knee, which he claims was originally injured in the same December 2002 fall as his back. That knee injury has been disputed throughout by the defendant, and he concedes that medication he has taken was for this knee as well as for his back. He eventually underwent total knee joint replacement surgery as a public patient in early 2012[7]. That injury is not pursued as a serious injury in this application. It is relied upon by the defendant as a concurrent disabling condition. The knee surgery has resulted in some improvement in left knee function and some relief of pain in his left leg.
[7]Apparently performed by Mr Michael Dooley who had assessed him for the defendant the previous year
30 Since April 2011 he has been in receipt of a Disability Support Pension.
What if any compensable injury was suffered?
31 The plaintiff’s case is that he suffered a serious injury to his low back in the course of his employment with the defendant, commencing with the incident of December 2002, but in particular as a result of his work duties between 2004 and September 2009. The defendant denies that there was any such injury due to the course of his employment duties, apart from temporary aggravations or exacerbations of an underlying and progressive condition in the incidents of December 2002 and June 2008.
32 The defendant points to the absence of any separate claim for compensation under the Act in respect of a “course of employment” or “gradual onset” injury, and consequently no admission of the occurrence of such injury. Mr Batten fairly acknowledges, however, that the plaintiff is not precluded from establishing such an injury as constituting a “serious injury” because s134AB(1) refers to a worker who is or may be entitled to compensation.
33 Apart from the two specific incidents, there is no direct evidence as to the occurrence of the injury now alleged. Determination of this issue therefore requires examination of the plaintiff’s description of the history of his symptoms, contemporaneous reports to doctors or clinics, and the medical opinion including as to comparison of radiology taken in December 2002 and in 2008.
34 The plaintiff’s evidence is that following the December 2002 injury to his low back, he experienced acute back pain and also radiating pain into both of his legs, especially the left, and some sensory leg symptoms. He says that he has never been completely free from back pain since, but after the first few months he was able to return to work, and soon afterwards to his full duties, and coped with his duties and activities by taking Nurofen. He also says that that without Voltaren he could not have worked, but I took that to be a reference to a later period, namely after the June 2008 incident. He concedes that the back pain over the following few years was not nearly as bad as it has been since 2009, but says that there was ongoing virtually daily back pain from April 2003.
35 Contemporaneous notes in the Holden medical centre records[8], and the reports of his GP Dr Oehr[9], confirm that even after he returned to work in 2003 there were ongoing symptoms of back pain and sciatica, such as numbness in his toes, exacerbated on occasions by activity or cold weather, that he was prescribed Voltaren and analgesics for these, and also would need physiotherapy for exacerbations of pain as required[10]. As at March 2004 Dr Oehr believed his pain had not fully resolved, and he was likely to have further exacerbations in future, which may require physiotherapy treatment and/or time off work in future[11].
[8]Exhibit 11
[9]Exhibits C and 3
[10]Medical Practitioner Questionaire 28/3/04
[11]Exhibit C- report 38 March 2004; Exhibit 3
36 Mr Karaferis says that he found the work harder once the system had been changed to require him to do his own picking of components requiring frequent climbing onto and off the forklift as well as lifting quite heavy items often of about 20 kgs, and sometimes sharing the lifting of engines of about 80kg. By early 2008 he felt his back pain had worsened, and he went to the defendant’s medical clinic on 5 June 2008 seeking approval for more physiotherapy recommended by his GP[12].
[12]Exhibit 11
37 Following his December 2002 injury, x-rays and scans on his lumbar spine were obtained. A CT scan of his lumbosacral spine on 12 December 2002 was reported with the conclusion that he had degenerative disc disease at L2-3 and L4-5 and there was a degree of acquired canal stenosis at both these levels. Mr McMahon, neurosurgeon, organised an MRI scan of the back and which was reported on 23 December 2002 as showing vertical compression of the left L4 nerve root in the foramen at L4-5 and moderate central canal stenosis at L2-3. There was also reported at L3-4 level to be mild disc desiccation and a shallow annulus bulge without neural compression, and the L1-2 and L5-S1 discs had retained their normal posterior contour[13].
[13]Exhibit E
38 I am satisfied from the opinions of all doctors that these indicated pre-existing lumbar disc disease or spondylosis, described by some as moderate, and by Mr Barrett as “early changes”. The scans also revealed lateral recess stenosis. I am satisfied, and all doctors accept, that the condition was asymptomatic prior to the incident of 1 December 2002. Mr Batten queries what physiological change if any occurred in that incident. Mr Barrett’s view was that given the radiological evidence of disc pathology at L2-3 and L4-5, not being uniform, there is likely to have been an activating injury to those discs to cause stenosis. Mr McMahon at the time diagnosed a far lateral left L4-5 disc prolapse and recommended decompression surgery of the L4 nerve root. I am satisfied and all of the doctors seem to accept, that the incident brought on not only back pain but also sciatic symptoms. I am satisfied that he did not fully recover to a condition of being symptom free again.
39 Mr Karaferis agrees that he did not continue to attend often at either the employer’s clinic or his local general practitioner in respect of his condition, but says that, following the December 2002 incident, he had ongoing back pain virtually daily. He took Nurofen, bought over the counter from chemists, and with that was able to control the pain enough to continue working, and with his normal activities.
40 On 5 June 2008 he had reported increasing low back pain. After the 10 June 2008 incident, although he had only a few days off work, he had physiotherapy for some months, attended Dr Oehr about once a month from then onwards, and required more medication to keep working. Holden clinic records record his coming for back pain and leg symptoms in August 2008, and then on 11 September. The next attendance was on (probably) 7 September 2009 for an exacerbation of low back pain, after a slow increase over a month in his symptoms without specific incident. Leg symptoms were noted, and the history of taking Voltaren.
41 The MRI taken in July 2008[14] is reported as showing disc degenerative changes at multiple levels in the lumbar spine, with mild to moderate central spinal canal stenosis at L2-3 and L3-4 (worse at L3-4), a large free fragment disc protrusion arising from the L2-3 disc, and appearing to compress the left L3 nerve root. All doctors who have seen both sets of scans or the reports conclude that there was significant worsening since the December 2002 scans (whether through natural progression or the effect of the original incident or subsequent work stresses or the 2008 incident).
[14]Exhibit E
Medical opinion
42 Dr Taquin Oehr, the plaintiff’s main general practitioner over the period,[15] treated the plaintiff following his December 2002 back injury. He summarised that as an injury to the lower back consistent with the stated cause of jumping from a forklift at work, and with investigations showing L4 nerve root compression and some degenerative change. The symptoms improved with conservative treatment and settled to the extent that he was able to return to light duties by March 2003, driving the forklift but not lifting more than five kilograms, and at the same time continuing physiotherapy. Things progressed well and he was cleared for full duties at the end of April 2003, but reporting in March 2004, Dr Oehr recounted further attendances by Mr Karaferis in respect of recurring back pain radiating to his right leg on 25 August 2003, which eased with rest, anti-inflammatory medication and physiotherapy, enabling another return to light duties on 2 September 2003, and still experiencing some back pain and needing occasional anti-inflammatory medication but back at work.
[15]Exhibit C
43 From clinical notes of Dr Oehr,[16] it appears there may have been a further attendance in June 2004 for pain in back, legs worse in cold weather, and the right leg going numb. The next attendance seems to be June 2008[17], when the plaintiff attended complaining of back pain, left leg and left knee after stepping 60 centimetres off a forklift the previous day. On examination there was tenderness in the right lower back with restriction of lumbar flexion, the plaintiff received physiotherapy and returned to work. He next attended on 30 June 2008, still complaining of left back and leg pain and was advised rest off work and to receive physiotherapy for his knee and back.
[16]Exhibit 10
[17]confirmed in a report of 18 October 2012 in Exhibit C
44 Dr Oehr reports that since leaving employment with Holden, Mr Karaferis has attended frequently complaining of pain and numbness in the back, left buttock and leg, as well as left knee pain often keeping him awake at night. He confirms that there was ultimately a left knee total replacement operation performed in January 2012, following which the plaintiff has continued to attend for prescription of analgesics for his back pain.
45 Dr Oehr’s diagnosis is of degenerative change with spinal canal stenosis and osteoarthritis of the left knee. He considered both of these conditions were at least partly related to the nature of the employment and the two falls or incidents alighting from forklifts. He considered Mr Karaferis currently unfit for his pre-injury duties and for any alternative manual duties. He is currently on daily anti-inflammatory medication and combined analgesics and was likely to need to remain on medication long term. Spinal surgery possibly may be required for his ongoing back pain. Dr Oehr’s opinion was that his work was a material contributing factor in the cause and aggravation of both his back and left knee injury. He believed the plaintiff’s daily activities are significantly restricted by pain.
46 Reports of Mr John McMahon, neurosurgeon, who saw the plaintiff on referral from the Holden Medical Centre in December 2002, were tendered[18]. He found evidence of lumbar claudication and moderately severe left-sided sciatica with a CT scan revealing broad-based disc bulges at multiple lumbar levels, as well as quite significant lateral recess stenosis. On examination he found straight leg raising limited to 80 degrees on the left due to pain, power normal but reflexes absent in all groups. After CT scan he was of the view that Mr Karaferis had presented with symptoms consistent with a combination of lumbar canal stenosis and lateral recess stenosis. He recommended an L2/3 lumbar laminectomy and decompression of the central canal, as well as a left L4/5 lateral microdiscectomy and decompression of the left L4 nerve root. On review, in January 2003, the symptoms had slowly improved but Mr Karaferis continued to describe left-sided buttock pain and paresthesias involving the medial aspect of his left knee and leg which Mr McMahon considered consistent with the diagnoses but noted Mr Karaferis did not wish to proceed with surgery.
[18]Exhibits D and 14
47 Mr McMahon provided a report to the plaintiff’s solicitor in November 2011 but it would appear had not re-examined the plaintiff at that stage and, indeed, had last seen him in January 2003, although he was provided with later radiology reports and a report of Mr Michael Dooley. Mr McMahon’s opinion was that the development of lumbar canal stenosis at L4/5 and the recurrence of the symptoms during 2008 after a further fall from a forklift, were a direct recurrence and exacerbation of the initial injury from 2002. The disc disruption and disc prolapse that occurred during 2002 were in his view significant contributing factors to the development of significant L4/5 lumbar canal stenosis more recently being diagnosed. He therefore felt that the current symptoms and radiological findings were more related to the injury of December 2002 rather than being attributed to the aging process alone. He specifically disagreed with Mr Michael Dooley’s opinion in this regard. In his view the current condition was much more related to the disc disruption and the disc prolapse and nerve compression that occurred in December 2002.
48 Mr McMahon believed that Mr Karaferis should not have returned to his previous physical work activities after December 2002 and believed that those ongoing work activities, and the exacerbation of his symptoms during 2008, were again a significant contributing factor to the development of recurrent symptoms. He considered Mr Karaferis probably did require surgery, a multilevel lumbar decompression and decompression of the lumbar nerve roots following which he was likely to have improvement from his symptoms and would then be able to return to light modified work activities. Without surgery he would require chronic pain management and his condition was likely to deteriorate over the years to come.
49 Mr Brian Barratt saw Mr Karaferis for orthopaedic opinion on the referral of Dr Oehr in May 2011. He noted the history, current complaints including that the symptoms were gradually increasing, conducted a physical examination, and compared xrays and scans of December 2002 with the MRI of July 2008. Mr Barratt considered there had been “gross advancement” of the lumbar spinal condition between those periods, and recommended operative decompression with a sense of urgency to relieve compression on the cauda equina nerve root, to relieve increasing symptoms and avoid the patient finishing up with lower limb weakness, hypoaesthesia and disruption of bladder and bowel function[19].
[19]Exhibit G – report 19/5/11
50 In a report to the plaintiff’s solicitors[20], Mr Barratt repeated those findings and recommendations, and gave his views on the work contribution to the condition. On the history of no lumbar spinal symptoms before the work incident of 2002[21], since which time his low back pain had increased, aggravated by the further fall of 2008, Mr Barratt was of the view that the changes had increased in severity since he was made redundant in September 2009 to the point where he had developed a serious degree of vertebral canal stenosis at the same mid lumbar levels to the point where operative decompression was necessary to save the ongoing functions of his lower limbs, bladder and bowel. He said the plaintiff’s work had been a material contributing factor to the onset and more recently the increase of his lumbar spinal stenotic condition, which, once established was steadily worsening the stenotic condition of the mid-lumbar spinal region, narrowing not only the vertebral canal but the intervertebral foramina posteriorly, to the point where he was becoming increasingly flexed in the spine and unable to stand up straight, without narrowing the intervertebral foramina so severely that he has pain shooting down both legs. I note that he had no history of the work duties changing from about 2004 requiring frequent climbing onto and off forklifts with lifting of parts into the stillage. When called for cross-examination, he said that relatively heavy picking work over the years would have contributed as well as the two incidents to the onset of the plaintiff’s lumbar spinal stenotic condition.
[20]Exhibit G – 4/10/11 – without having re-examined Mr Karaferis
[21]Mr Barratt had 2001 for the first incident and 2007 for the second but nothing the defendant does not seek to make anything of those variations.
51 The defendant required Mr Barratt to attend for cross-examination. He was questioned at length about competing orthopaedic theories as to the development and progression of degenerative disc disease and the terminology used about it. He does not subscribe to the orthopaedic theory that disc degeneration is a normal sequence – an accompaniment to aging. He accepts that spinal canal stenosis results from disc disease, but holds to the view that there has to be a starting point of initial injury to the disc for it to slip the casing of the disc itself to progressively push out and narrow the spinal canal[22]. He distinguished situations of fairly uniformly affected discs albeit increasing toward the lower part of the lumbar spine, from the situations where one or two discs are affected at different parts which tend to have been initiated by specific injuries [23]. In this context he considered that in Mr Karaferis two discs – L2-3 and L4-5 – have significantly more narrowing than at other levels.
[22]T 169,l 14-29
[23]T 170, l 7-22
52 As to the progression of his condition, Mr Barratt did not agree that the December 2002 injury was a temporary aggravation, but regarded it as a significant one as it had required three months totally off work, and his view was that it had been unwise for him to return at all to his full pre-injury duties. Pressed as to what change in underlying pathology had been caused by the 2008 incident, his answer was: “all I can say is the pathology had grossly increased between the tow MRIs and that the stenosis, the narrowing, had grossly increased between those two periods.”[24] However, although the condition would be expected once initiated to naturally progress, he thought the changes shown on MRI here much more serious than one would expect with natural evolution[25] It was Mr Barratt’s understanding that he had returned to only light duties following the 2008 incident until accepting the redundancy in 2009, after which he was totally incapacitated for work as a result of his lumbar spinal condition and indeed required surgery to avoid losing the ability to walk.
[24]T 191, l 5-10
[25]T 198
53 Mr Charles Flanc, vascular and general surgeon, provided a medico-legal assessment for the plaintiff[26] October 2012. His opinion was that the nature of the plaintiff’s work at GMH, including transferring heavy parts onto his stillage throughout his shifts, made him vulnerable to aggravation and acceleration of a pre-existing degenerative condition of his lumbar spine, that the incidents of 2002 and 2008 were specific aggravating factors causing significant aggravations of the pre-existing degenerative condition of his spine, the 2002 injury being the initial trigger to the onset of symptoms, and that his current condition is still significantly related to his work at GMH and the particular injuries of 2002 and 2008. Mr Flanc considered his condition not stabilised and noted that he has had increasing back pain radiating into the left leg and that he has been referred to St Vincent’s Hospital neurosurgical clinic, which he assumed was for consideration of surgery. He considered Mr Karaferis has no capacity for employment and that is likely to persist.
[26]Exhibit F
54 Mr Roy Carey, orthopaedic surgeon, provided medical-legal assessment for the defendant in April and May 2012[27]. This was shortly after the plaintiff’s left knee surgery, and left thigh wasting and absent knee jerk were felt consistent with and likely to be attributable to that. Nevertheless, Mr Carey took a history of no back symptoms prior to the December 2002 incident, back pain caused in the December 2002 incident settling after a number of months to about 50% of its most acute post injury, but overall worsening until the aggravation of the July 2008 incident. He noted the changes in radiology between December 2002 and 2008 to be marked, by 2008 being marked stenosis at L3/4 with only slightly lesser degrees a L2/3 and L4/5, with marked loss of disc height at those three levels and marked degenerative end plate changes. He described the degree of stenosis at L3/4 as profound. The diagnosis as at 2012 was that Mr Karaferis suffers from lumbar spondylosis with multilevel lumbar spinal canal stenosis with neurological claudication, but in the absence of radiculopathy in that he found no change of sensation in lower limbs on examination.
[27]Exhibit 4
55 Mr Carey’s opinion was that the 2002 injury aggravated a previously asymptomatic lumbar spondylosis, which was further aggravated in the incident of 10 June 2008, and that both of those incidents continue to contribute to his current presentation. He found the plaintiff’s low back showed restricted movement and irritability, and his ability to stand and walk is significantly restricted by neurological claudication.
56 Mr Michael Dooley provided medico-legal assessment for the defendant in August 2011[28]. The history he took included that Mr Karaferis had refused surgery after the 2002 injury because his wife would not let him undertake it, but that by the time of examination his symptoms had reached the stage where if he were advised to consider surgery again he will undertake surgery on his spine.
[28]Exhibit 5
57 Mr Dooley’s opinion was that Mr Karaferis has naturally occurring and age related degenerative disc disease of the lumbar spine, and secondary to this has developed spinal canal stenosis. He believed that the fall in December 2002 as described aggravated underlying degenerative disc disease of the lumbar spine, and based on the history of noting weakness in his legs soon after the fall it is likely that some swelling or bleeding occurred to further temporarily accentuate the narrowing of the spine and cause leg pain and weakness. The claudication only seemed to have developed after the 2008 incident. Mr Dooley explains his belief that there is no definite statistical data to support heavy labour, impact sport etc as influencing the incidence of degenerative disc disease, despite popular belief. He proffers that if the standard to accept a condition as work related is heightened effect on occasion or some aggravations, then Mr Karaferis’s condition would be considered work related, for a work related connection is aggravation of a degree that clearly accelerates the condition or advances it over and above its natural evolution.
58 Mr Dooley considered Mr Karaferis not able to perform his pre-injury work, and not able to stand for any length of time in the context of some light physical work. He thought he presented as a sensible and genuine historian, without excessive psychological reaction to injury or pain, and that his current symptoms were classical of spinal canal stenosis.
59 Dr Mary Wyatt, Occupational Physician, assessed the plaintiff for the defendant[29] in October 2012. While attributing wasting of the left thigh to the knee surgery, on examination she found generally reduced reflexes through the lower limbs, and forward flexion restricted by 50%. Although she regarded his low back condition to be constitutionally based, she accepted that his work, which involved regular twisting and lifting, has contributed to some level to his back condition. Notwithstanding those views, she alone amongst all other medical opinion in evidence considered him currently capable of resuming employment if weights to be lifted were restricted to 5kg, and he had duties which allowed for change in posture. As Mr Dooley and Mr Carey accepted that he could not stand for long, and Mr Dooley recognised the claudication and that surgery on the spine was a real possibility, even without Mr Barrett’s much more urgent urging of surgery, I do not accept Dr Wyatt’s opinion that Mr Karaferis is fit for any sustained employment duties whatsoever.
[29]Exhibit 6
60 It is not possible for me as a judge hearing a serious injury application without even the benefit of oral evidence from all doctors whose opinions are relied upon, to resolve long-standing differences between orthopaedic theories as to the onset and progression of lumbar disc disease. The opinions of Mr Barrett and Mr McMahon on the one hand, and Mr Dooley on the other, are not able to be reconciled by me on this issue. However, it does seem that Mr Dooley addresses whether work related aggravation must result in a permanent acceleration or progression of the underlying pathology, for there to be a work related connection. The issue for the judge in a serious injury application, while requiring a finding of compensable injury on the balance of probabilities, does not focus on the permanence of work-related connection to the pathology involved, but on the degree and permanence of consequences to the plaintiff from the injury.
61 In my view the evidence is more than sufficient to satisfy me on the balance of probabilities that the plaintiff’s work duties between 1 December 2002 and 9 September 2009 caused an injury to the plaintiff’s lumbar spine being an aggravation of previously asymptomatic lumbar spondylosis and central canal stenosis. Further, I am satisfied on the balance of probabilities that after the incident of 1 December 2002, there was further injury to his lumbar spine by way of further aggravation and/or acceleration of previously existing (and by then already symptomatic lumbar spondylosis and central canal stenosis. I am satisfied that the progression of the condition between scans of December 2002 and June 2008, in particular as the greatest change seems to have been at the L3/4 disc level which was not prominent in 2002, but which Mr Carey describes as showing profound stenosis in the 2008 scan, more consistent with causation from the stressors of work and the 2008 incident, than with natural evolution. I note that there is support for this finding in the views of each of the plaintiff’s treating doctors[30] (Dr Oehr, Mr Mc Mahon, and Mr Barratt) as well as the medico-legal opinions of Mr Flanc and Mr Carey, whereas Mr Dooley and Dr Wyatt saw the plaintiff only for medico-legal assessment for the defendant and only well after he had ceased work.
[30]For his back condition. I do not include Mr Dooley as a treating doctor for the plaintiff’s back condition.
62 As to whether the aggravation after the scans of December 2002 can be limited to the period from about 2004 as sought to be pleaded, the contribution of the ongoing and, on the plaintiff’s unchallenged evidence physically harder, work duties from 2004 seems to me to fall for consideration under the principles explained and applied by Ashley JA in Grech v Orica Ltd[31] as explained and differentiated in AG Staff v Filopowicz[32]. I am satisfied that I can find on the balance of probabilities that the aggravation resulting from contribution of his ongoing work after December 2004, material contributed to the level of disability from which he was suffering by the time he left employment in December 2009, and further from the level of impairment from which he continues to suffer and is likely to do indefinitely.
[31][2006] VR 172
[32][2012] VSCA 60 at [28]
Consequences
63 I am satisfied that by September 2009 Mr Karaferis’s lumbar spinal condition had reached a state which caused him constant pain in his low back, and pain and some sensation changes in both legs. I am satisfied that he requires prescribed medication to cope with this condition, including anti-inflammatories and Panadeine forte, and that the dosage of Panadeine forte increased from two tablets per day to four. I accept his evidence that his pain interrupts his sleep, and that he now cannot sleep for more than about two hours unless he takes pain relief. These effects have been acknowledged to raise a real prospect of “a very considerable” consequence[33].
[33]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at [199]
64 I am satisfied that his pain is exacerbated by standing for more than about 15 minutes, by walking or general activity for any extended period, and by sitting for an hour or more, the latter limiting his driving to shorter distances and time frames, although he can manage driving from his home in Richmond to the house in Doncaster where his son and grandchildren live. He likes to get out of the house and keep occupied, and at times collects his grandchildren, or mail when their family is away. Surveillance film of him removing a child seat from the back seat of his car and putting it into his car boot was presented by the defendant as showing him as more active and flexible than he admitted, but I accept Mr Karaferis’ description of it being made of foam and very light, because of the manner he lifted it with one hand. He does drive his wife to the shops at Victoria Gardens, but cannot carry heavy shopping bags or walk for long along supermarket aisles.
65 I find impacts on his life to include that although he can shower and attend to personal hygiene himself, he needs his wife’s assistance when dressing as he cannot bend enough to put on pants or socks.
66 He does assist his wife by hanging out washing, for which he climbs four or five steps because of the position of the clothes line on a portion of their roof. However I accept his evidence that his wife carries the clothes basket and places it for him, and I assessed his movements as relatively slow. I accept that he is no longer able to cultivate a substantial vegetable garden, limiting himself to a few tomato plants, and standing for a short time with a hose to water them.
67 I watched video surveillance of the plaintiff riding a bike. He did so slowly, and at times barely in control of the bicycle. This appeared to me to show a man determined to pursue some outdoor exercise, but significantly physically limited in doing so.
68 I accept that pain causes Mr Karaferis trouble sleeping, and that he takes medication to help, and has at times used a pillow to support his legs or a cold pack to relieve his back.
69 Mr Karaferis is clearly not a total invalid, but I am satisfied that his activities now are much more limited than they would have been without his back injury.
70 Mr Karaferis has so far resisted surgery on his back, in particular because his wife will not allow him to have it as she fears it making him worse. I read and heard Mr Barratt’s view that surgery to release the cauda equine nerve roots is now quite urgently needed to avoid further compression of those nerves causing loss of ability to walk and bowel and bladder control. Although when Mr Barratt reported to Dr Oehr with that opinion in 2009 Mr Karaferis obviously did not agree to the surgery, I note that an appointment at St Vincent’s neurosurgery unit was expected early this year for another assessment for surgery. Mr Karaferis did consent to surgery on his left knee last year, which led to some improvement, and he said he would consider surgery on his back and maybe have it despite his wife’s concerns depending on what medical advice he received. I have taken into account that he may end up undergoing surgery on his back, but even if he does, the evidence of Mr Barratt is that if successful it would relieve the prospect of pressure on the cauda equine nerve roots causing further loss of sensation, and make him more comfortable, but is unlikely to give much relief from his back pain.
71 The impact on a man who was proud of his long years of employment service to the one company, and of his role as provider for his family, of now being unable to contribute as physically to the house and family activities as he used to do, as well as his suffering constant pain, interrupted sleep, and the need for daily and quite strong medication to cope with both of these, in my view can fairly be described as at least very considerable when compared with other possible impairments of body function. Notwithstanding that he was already over 60 and therefore in an age range in which many people expect to retire, and to be more limited in their activities, I am satisfied that there has still been permanent impairment to his lifestyle of a degree that reaches the necessary level of seriousness. I am satisfied that impairment to that degree is likely to be permanent, even if he does proceed with surgery to relieve the compression of the cauda equina nerves.
Loss of earning capacity
72 The defendant points to the fact that the plaintiff continued to work at his full duties up to the time of accepting a redundancy package, as evidence that he was not incapacitated from earning to any degree, let alone to the degree of 40% under the statutory formula. It also argues that any incapacity for work which he now suffers is due to naturally occurring disc disease, and or alternatively to his left knee condition for which he underwent surgery in early 2012, and not to any work related condition which I might find. Alternatively it argues that he has not established that he is incapable of alternative lighter duties for which he could earn more than 60% of his without injury earnings under the statutory formula.
73 As to whether the fact of the plaintiff working until accepting a voluntary departure package proves that he retained full capacity for work, this raises the interpretation of “incapacity”. I do not accept that just because a person can physically perform work or other activities means that they cannot be incapacitated for those activities. The person might, as Mr Barratt suggested, be putting themselves at significant risk of further injury or of advancing the existing injury. The person might be performing the activity with a degree of pain which is well beyond what could be tolerated in the long-term.
74 In this case, I accept the plaintiff’s evidence that he was only managing to keep working by taking Voltaren, and Nurofen, and even then had recently found his back pain had worsened to the point where he attended the medical clinic and doubted that he would be able to keep fulfilling his work duties as he had managed for so long. I do not regard his acceptance of a “voluntary departure package” as inconsistent with his having realised that his back condition had reached a stage where he might well not be able to continue to work and it would be wise to take a package when available.
75 As to his work capacity in September 2009, his attendances at the work clinic are consistent with his evidence that he had reached the point of his pain interfering with his ability to continue working, his seeking of further active treatment through physiotherapy, and the bringing forward of his work termination date, even by only a couple of weeks, is also consistent with his having at that stage become incapacitated through his back condition from continuing at his work duties.
76 Finally, the only medical opinion to the effect that Mr Karaferis is now capable of full-time work is that of Dr Wyatt. While capacity for work is part of her specialty, I do not accept her opinion as she does not explain how he could engage in sustained work duties when his standing and sitting tolerances are limited, walking increases back pain, and he cannot drive for long distances or periods of more than an hour. His only work history is in forklift driving and as a storeman, for both of which I am satisfied he is totally disabled, and with his limited educational background and at his age, the potential for any retraining is virtually illusory. I am not convinced by Dr Wyatt that he could perform light duties on a sustained basis, and I note that all other medical opinion (albeit from various periods since 2009) supports that he is not capable of undertaking sustained employment duties. In this context I find that he is totally incapacitated from full-time employment, and is likely to remain so for the foreseeable future, even were he to have some relief of this leg symptoms from surgery to relieve nerve compression. In light of this finding it is not necessary to address calculations under the statutory formula.
Conclusions
77 For the above reasons, I am satisfied that as a result of his work duties with the defendant between 2004 and 9 September 2009, the plaintiff suffered injury to his lumbar spine, and that that injury constitutes a “serious injury”, both as to pain and suffering and as to loss of earning capacity. I propose to grant him leave to bring proceedings for both pain and suffering and pecuniary loss damages in respect of that injury.
CI – 11-04444
Karaferis v GM Holden Ltd
Schedule of Exhibits
| Number and Identifying Mark on Exhibit | Short Description of Exhibit | Court Book Ref | Tendered by |
| A | Plaintiff’s affidavits sworn on 9/04/2011 and 1/11/2012 | P | |
| B | Copy of physiotherapy record of attendance 7/04/2010 | P | |
| C | Reports of Dr Oehr dated 06/03/03, 28/03/04, 28/05/2010 and 18/10/2012 | PCB pg 36 – 40 | P |
| D | Reports of Mr John McMahon dated 19/12/2002 and 30/11/2011 | PCB Pg 41-47 | P |
| E | CT scan of Lumbosacral Spine dated 12/12/2002 MRI of Lumbar Spine and X-ray dated 23/12/2002 MRI of Lumbar Spine dated 08/07/2008 | PCB Pg 50-53 | P |
| F | Report of Mr Charles Flanc dated 15/10/2012 | PCB Pg 54-63 | P |
| G | Mr Brian Barrett Reports dated 19/05/2011 04/10/2011 | PCB Pg 64-69 | P |
| H | Extract of clinical notes relating to Plaintiff of General Motors Holden Medical Clinic dated Sept 2009 | P | |
| 1 | 2 DVD of surveillance of Plaintiff dated 21/08/2011, 26/08/2011, 28/08/2011and 11/07/2012, 13/07/2012 and 15/07/2012 | D | |
| 2 | Set of 4 documents signed by Plaintiff as to voluntary separation program from Defendant dated September 2009 And letter to the Plaintiff from Matthew Wheaton of D dated 03/09/2009 and 11/09/2009 | D | |
| 3 | Medical questionnaire of Dr Oehr dated 28/04/2010 and report Dr Oehr dated 30/04/2010 | DCB Pg 1-3 | D |
| 4 | Reports of Mr Roy Carey dated 03/04/2012 and 14/05/2012 | DCB Pg 4-16 | D |
| 5 | Report of Mr Michael Dooley dated 12/08/2011 | DCB Pg 17-21 | D |
| 6 | Report of Occupational physician Dr Mary Wyatt dated 06/10/2012 | DCB Pg 22-27 | D |
| 7 | Incident investigation reports dated 18/12/2002 and 10/06/2008 | DCB Pg 28-31 | D |
| 8 | Worker’s claim forms dated 17/01/2003 and 15/07/2008 | DCB Pg 32-36 | D |
| 9 | Medical reports of Mr Paul Burns 23/03/2010 and 23/03/2010 | PCB Pg 48-49 | D |
| 10 | 4 handwritten pages of clinical notes of Dr Oehr dated 07/09/2009 | D | |
| 11 | Clinical notes on Plaintiff from GM Holden Medical Clinic dated 05/04/2001-16/06/2008 | D | |
| 12 | Photocopies of clinical notes of physiotherapy department of GM Holden Medical Centre dated 5/12/2002 - Sept 2009 | D | |
| 13 | Letter to Mr Brian Barrett from Zaparas lawyers dated 27/09/2011 | D | |
| 14 | Report of Mr John McMahon dated 19/12/2002 | D |
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