Keenan v Victorian WorkCover Authority
[2019] VCC 115
•21 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-02209
| CHRISTOPHER DAVID KEENAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January 2019 | |
DATE OF JUDGMENT: | 21 February 2019 | |
CASE MAY BE CITED AS: | Keenan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 115 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lower back – loss of function of the lower back – whether pain and suffering consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application for serious injury dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S J Carson | Maurice Blackburn Lawyers |
| For the Defendant | Mr A W Middleton | Russell Kennedy |
HIS HONOUR:
1 This proceeding is an application brought by Originating Motion dated 22 May 2018. The plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him during the course of his employment with the Direct Skills Pty Ltd (“the employer”) on 23 November 2012.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages only.
3 The injury suffered by the plaintiff for which he seeks leave to bring proceedings for damages is an injury to his lower back.
4 The following evidence was adduced during the course of the hearing:
·The plaintiff gave evidence and was cross-examined
·Exhibit “A”, the Plaintiff’s Court Book (“PCB”), pages 15 to 67 inclusive
·Exhibit 1, the Defendant’s Court Book (“DCB”) pages 9 to 26 inclusive.
5 This application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act, which requires a plaintiff to prove that he has suffered “permanent serious impairment or loss of body function”. The loss of body function in this case is to the plaintiff’s lower back.
6 Mr Middleton, on behalf of the defendant, identified the issue in this application was whether or not the consequences alleged by the plaintiff arising out of the injury to his lower back on 23 November 2012 meet the statutory test. In short, this is a “range” case.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
8 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 or in the course of his employment on or after 20 October 1999;[1]
[1]Section134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(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”;[2]
[2]Barwon Spinners Pty Ltd v Podolak (ibid) at paragraph [33]
(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 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) 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 ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required 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
10 The plaintiff was born in March 1982. He is now thirty-six years old. The plaintiff is a married man but is separated from his wife and lives alone. The plaintiff has a two-and-a-half year old son. He has access to his son on a Wednesday afternoon after childcare and every second weekend.[3]
[3]PCB 34; Transcript (“T”) 18
11 The plaintiff was educated to Year 12 level. Upon completing his secondary school education, he commenced studying for journalism. He maintained his study in journalism for a period of two years but did not complete this study.[4] The plaintiff then commenced a carpentry apprenticeship and qualified as a fully qualified carpenter.[5] The plaintiff has worked in a number of roles as a carpenter.
[4]PCB 58
[5]PCB 46
12 At the time of the injury to the plaintiff, he was working as a labourer-machine operator on a casual basis. In his evidence, the plaintiff stated that he preferred to work in this sort of role because he liked to work with machinery and liked to work on big projects.[6]
[6]T8
13 Since the time of the injury, the plaintiff qualified as a Certificate IV in Contract Management. He has worked in the gas industry in a supervisory capacity for Civilex and currently works there in that capacity.[7] The plaintiff works fulltime.
[7]PCB 31
Injury with the Employer
14 The plaintiff was employed as a labourer and machine operator. On the day of the injury to the plaintiff, 23 November 2012, he had commenced his work duties with the employer at the worksite of the Melbourne Market relocation project in Cooper Street, Epping. The plaintiff was required to move a piece of equipment with a fellow worker named “Pete”. The plaintiff described the incident causing injury to his back in the following terms:
“The jockey wheel at the front of a ‘pump trailer’ collapsed, falling onto the foot of a co-worker named Pete. It was clear that he was in trouble and in a lot of pain. The pump trailer would have weighed something like 4 tonnes.
I tried to lift or move the trailer enough to get Pete’s foot out. As I was doing this I felt something ‘pop’ in my back. This wasn’t immediately painful. However, it did become clear that I wasn’t going to be able to budge the trailer on my own. I got the help of a supervisor and, between us, we then managed to lift the trailer off Pete’s foot.[8]
[8]PCB 28-29
15 The plaintiff’s supervisor was notified on the day and the plaintiff attended on his general practitioner for treatment.
16 The defendant accepts that the plaintiff was injured on 23 November 2012 as set out in his Claim Form dated 5 February 2013.[9]
[9]PCB 11-14
Medical treatment
17 On the day of the accident, the plaintiff attended upon Dr Tunaley at the Willandra Medical Clinic. The initial treatment was with Voltaren, 50-milligram tablets, and a recommendation for physiotherapy sessions. The plaintiff continued to attend at that clinic and was subsequently referred for an MRI scan on his lower back on 20 December 2012.[10] The plaintiff was given time off work.
[10]PCB 40
18 On 9 January 2013, the plaintiff attended for an MRI scan of his lumbosacral spine. This MRI examination was ordered by Dr Sekhon of the Willandra Medical Centre. The MRI report sets out the following findings:
“At L3/4 minimal disc bulge noted. Central canal and neural foramina adequate.
At L4/5 no disc bulge noted. Central canal, subarticular recesses and neural foramina are adequate.
At L5/S1 no disc bulge or protrusion evident with central canal and neural foramina adequate.
No significant facet joint changes.”[11]
[11]PCB 51
19 The conclusion is set out as follows:
“- There is an impression of bilateral sacroiliac joint space narrowing and articular irregularity without subchondral marrow oedema or increased joint signal. This may indicate quiescent bilateral sacroiliitis. Correlation with pain radiography suggested in the first instance.
- No evidence of inflammatory spondyloarthropathy.
- Minimal annular disc bulges at L3/4 and L4/5.
- No central canal or neuroforaminal stenosis. No neural compression evident.”[12]
[12]PCB 51
20 The plaintiff then changed his general practitioner to The Harding Street Medical Centre.[13] I note in the report dated 20 February 2014 prepared by Dr Melanie Simpson from The Harding Street Medical Centre, that the plaintiff was initially seen by Dr Michael Huang on 29 November 2012. It appears from the sparse medical records before the Court that the plaintiff was seeing two general practitioners for the period immediately following his injury in November 2012 until early 2013.
[13]PCB 42
21 Dr Simpson states in her report that she had been seeing the plaintiff as a general practitioner from 16 January 2013. I note that she makes the comment that she first saw the plaintiff concerning his WorkCover claim on 20 February 2014.
22 Dr Simpson noted as follows:
“The first time that I met Chris regarding his workcover claim was 20th February 2014. He described ongoing pain [in] the lower thoracic and lumbar spine with pain radiating posteriorly down his R leg beyond his knee. He also described patchy numbness in his R lower leg.”[14]
[14]PCB 42
23 Dr Simpson’s examination on 20 February 2014 noted the following:
“Examination showed a normal range of spinal movement and focal spinal tenderness at T12/L1 and L3-S1. He had some mild paraspinal muscle spasm at these levels. He had lower limb neurological findings including heel / toe walking. [N]ormal power and tone and normal reflexes apart from the R knee jerk was absent. He had patchy subjective sensory reduction in the R and L lower legs but no specific pattern. A neurosurgical review was discussed. The cause for his lower leg symptoms was unknown given that he had no nerve root compression on MRI.”[15]
[15]PCB 42
24 In Dr Simpson’s opinion, the working diagnosis was a lumbar muscular strain or facet joint injury with referral of pain to the right leg. She noted this was consistent with the plaintiff’s description of the triggering injury.
25 Given the text in the remainder of that report, it would appear that the doctor has made a typographical error in relation to the year that the plaintiff first saw her in respect of his WorkCover claim. The year should be 2013.
26 Dr Simpson referred the plaintiff to the Metro Spinal Clinic for pain specialist treatment.
27 I note that the plaintiff states in his affidavit that he did not attend at the Metro Pain Clinic until the end of 2014.[16] There is no report in the tendered documents from the Metro Spinal Clinic. The plaintiff, in his affidavit, stated that he received injections to his lower back but these were of limited assistance in ameliorating his pain symptoms.
[16]PCB 31
28 The plaintiff has stated in evidence that he has received chiropractic and osteopathic treatment from a person he described as “Grant” from Queens Park Chiropractic and Osteo.[17] The plaintiff obtains treatments from the chiropractor when he has flare ups of pain which he is unable to control. The plaintiff stated that on occasion, he received acupuncture from that same chiropractor or osteopath.[18] There was no report from the Queens Park Chiropractic and Osteo Clinic.
[17]T10
[18]T10
29 The plaintiff also gave evidence that he takes Celebrex tablets to maintain his pain management. He stated that he receives the Celebrex prescriptions from his general practitioner.
30 The plaintiff has not been to see any further specialists for treatment, either orthopaedic surgeons or pain management specialists, in relation to his back condition. The plaintiff relies on exercise, stretching and keeping fit to maintain his back mobility and pain levels. The plaintiff continues to have Celebrex on an intermittent basis to manage flare ups of his back pain.
Medical opinions
The Plaintiff’s doctors
Dr Sekhon
31 Dr Sekhon from the Willandra Medical Clinic prepared a report dated 16 June 2013. A fellow doctor of that clinic, Dr Tunaley, was the first medical practitioner consulted by the plaintiff after his initial accident on 23 November 2012. The plaintiff was treated by a prescription of Voltaren, 50 milligram, and referred to physiotherapy sessions.[19]
[19]PCB 40
32 Dr Sekhon states that he last saw the plaintiff on 20 December 2012 and had referred the plaintiff for an MRI examination to rule out disc pathology.[20] Dr Sekhon has not seen or treated the plaintiff since December 2012.
[20]PCB 40
33 Dr Sekhon’s report is very outdated and is of limited assistance to me in determining this application as I have to be satisfied that the plaintiff is suffering from a serious injury as at the date of the hearing of the serious injury application.
Dr Melanie Simpson, General Practitioner
34 Dr Simpson has prepared two reports, both dated 20 February 2014. They appeared in the plaintiff’s Court Book between pages 42 and 45. Dr Simpson’s report sets out that the plaintiff had been a patient of The Harding Street Medical Clinic since March of 2012. The plaintiff, in his evidence, gave evidence that he continues to attend at that clinic.
35 The plaintiff was originally seen at The Harding Street Medical Clinic on 29 November 2012 by Dr Michael Huang. Dr Huang requested a CT scan to exclude nerve root compression in the plaintiff’s back. There is no CT scan report in the tendered materials in this case. I note that the plaintiff had an MRI examination on 9 January 2013 which was ordered by Dr Sekhon.[21]
[21]PCB 51
36 Dr Simpson first saw the plaintiff on 20 February 2013. (I note that in her report she refers to this as being 2014). I have previously set out the matter in Dr Simpson’s reports.
37 Dr Simpson noted that the plaintiff was receiving chiropractic and osteopathic treatments at the Queens Park Chiropractic Clinic. She noted that he used Celebrex and paracetamol for analgesia.
38 Dr Simpson noted that the plaintiff was reviewed on 6 January 2014. She noted in her examination, focal tenderness over the L5-S1. The plaintiff requested that he be referred to a pain specialist at the Metro Spinal Clinic.[22] At that time, 20 February 2013, Dr Simpson was of the opinion that the ongoing prognosis for the plaintiff was guarded.
[22]PCB 43
39 In her second report dated the same date, Dr Simpson described a working diagnosis for the plaintiff as a lumbar muscular strain with facet joint injury with referred pain in the right leg.[23]
[23]PCB 44
40 There was no further report tendered on behalf of the plaintiff from his general practitioners. In the course of evidence, it was put to the plaintiff that he saw a Dr Julian Dart from the Harding Street Clinic about a flare up to his back in August of 2018. The plaintiff did not recall that examination.[24]
[24]T9-10
41 The plaintiff gave evidence that he was continuing to see doctors over the period between February 2014 and the present time. He stated that he was prescribed Celebrex tablets on a reasonably regular basis to deal with his pain symptoms. His evidence was that the general practitioners were the only medical practitioners giving him treatment for his low back symptoms. The last of the general practitioner reports is nearly five years’ old.
42 The absence of an up-to-date general practitioner’s report is not determinative of a serious injury application; however, in a case such as this one where the plaintiff’s only treatment on his evidence is from a general practitioner and there is no report tendered to support the application, it leaves the Court in a position of only having the plaintiff’s evidence to support any finding of ongoing treatment.
43 There was no explanation as to why an up-to-date general practitioner’s report was not obtained and tendered on behalf of the plaintiff. The result is that the plaintiff’s application for serious injury relies solely on his evidence in terms of the ongoing treatment that he is currently undertaking.
Dr Clayton Thomas, rehabilitation and pain medicine consultant
44 Dr Clayton Thomas prepared a report dated 27 September 2018 on behalf of the plaintiff. Dr Thomas’ report is a medico-legal report.
45 Dr Thomas examined the plaintiff on 24 September 2018.[25] Dr Thomas noted that the plaintiff stated that at the end of 2014, he had attended the Metro Spinal Clinic and had some injections to his back, which the plaintiff reported gave him some, but not significant, benefit.[26]
[25]PCB 46
[26]PCB 47
46 On 24 September 2018, Dr Clayton Thomas examined the plaintiff and made the following findings:
“On examination, he was 185.4 cm tall, his weight was 90 kg, his body mass index was 26.2. He had good general mobility. He had symmetrical posture. He was nontender throughout most of the spine except for the L4-L5 region. He was not tender over the facet joints but more tender over the spinous processes at L4-L5. Back movements were mildly limited. There was a reversal of the lumbar lordosis. Extension was more limited than flexion. Lateral bending and rotation were both mildly limited at the end range only.
Neurological lower limb reflexes were brisk and symmetrical. Straight leg raising reproduced some hamstring tightness, more on the right than the left. Hip examination was unremarkable, reproducing lower back pain.”[27]
[27]PCB 47
47 Dr Clayton Thomas did not have the advantage of the MRI conducted on 9 January 2013 but noted the conclusion in that report.
48 Dr Clayton Thomas described the treatment received by the plaintiff as being extensive. He described the trial blocks in late 2014 as part of that treatment.
49 I am not satisfied that the plaintiff has had extensive treatment. His treatment has been limited to that procedure in late 2014, and on his own evidence, sporadic ingestion of Celebrex when pain flares up.
50 The opinion of Dr Clayton Thomas was that the plaintiff needed to maintain an ideal body weight, continue with an active exercise program, remain motivated; core stability is important, as is aerobic exercise.[28] At that time, Dr Clayton Thomas noted that the plaintiff had an ability to work, with the following restrictions:
[28]PCB 48
“A 10 kg frequent lift between waist and shoulder height and below waist and above shoulder height; an occasional lift of 20 kg between waist and shoulder height only.
To avoid working with a continually bent back or bent and rotated back. This could be either in a flexed position or an extended position. As such, minimal work below waist height and above chest height.
…
The nature of these restrictions will be considered permanent insomuch as working within these restrictions will protect his back over the longer term, noting that he is only 36 years of age.
… .”[29]
[29]PCB 48
51 Dr Clayton Thomas set out the plaintiff’s prognosis is for ongoing backache with some radiation into the right more than the left leg, which seems to be a referred phenomena from his lumbar spine.[30]
[30]PCB 48
52 The prognosis set out by Dr Clayton Thomas relies heavily upon an acceptance of the plaintiff’s description of his symptoms and ongoing problems.
Dr Michael Baynes, occupational physician
53 The plaintiff also relied upon a report prepared by Dr Michael Baynes dated 28 February 2013 which was prepared for the purposes of the defendant’s insurer. The plaintiff relied upon the opinion of Dr Baynes to establish that the plaintiff’s incapacity for work is contributed to by the claimed injury, noting the ongoing pain associated with the incident.[31] As at February of 2013, the plaintiff was found by Dr Baynes to have a work capacity for alternative duties with restrictions. Those restrictions are set out in his report.[32] The evidence is that on the basis of Dr Baynes’ report, the plaintiff was returned to work on restricted duties. The plaintiff’s evidence is that the defendant had no such restricted duties for him to perform and he subsequently ceased working for the defendant.
[31]PCB 55
[32]PCB 55
Dr Daniel Lewis, rheumatologist
54 Dr Daniel Lewis prepared a report dated 12 October 2015 for the defendant’s insurers. Dr Lewis took a history from the plaintiff that he took Celebrex intermittently. Dr Lewis’ opinion was that the plaintiff had non-specific low back pain without radiculopathy relevant to the claimed injury:
“The MRI findings of possible sacroiliitis plus the subtle signs of pain on sacroiliac stress testing at this examination indicates that there may be an element of sacroiliitis, however this is not relevant to the claimed injury. However it does require further investigation.”[33]
[33]PCB 61
55 Later in his report, Dr Lewis states:
“I do not consider there are any constitutional changes that are contributing to the claimed injury. The issue as to whether he has sacroiliitis needs to be clarified.”[34]
[34]PCB 61
56 Dr Lewis gave the opinion that the current clinical condition relates to the work incident in November 2012.
Mr Gerald Moran, orthopaedic surgeon
57 Mr Gerald Moran prepared a report dated 5 September 2016 for the defendant’s insurer. The plaintiff relied upon this report in support of his application.
58 In that report, Mr Moran set out that the plaintiff had sustained a soft tissue injury to his lumbar spine. In Mr Moran’s opinion, the impairment that he was examining had stabilised.[35] Mr Moran then went on to give an impairment assessment of the AMA Guides which is of no relevance in an application such as this.
[35]PCB 65
Medical Panel Certificate of Opinion dated 22 June 2016
59 The Medical Panel, consisting of Dr Armin Drnda, neurosurgeon, and Mr Neil Cullen, orthopaedic surgeon, gave a Certificate of Opinion in respect of the plaintiff dated 22 June 2016. The Medical Panel Opinion was that the plaintiff was suffering non-specific low back pain due to a partially resolved soft tissue injury of the lumbar spine. The Medical Panel did not approve of a radiofrequency denervation treatment in respect of the plaintiff’s back.[36]
[36]PCB 67
60 The Medical Panel took a history from the plaintiff in respect of his treatment at the Metro Pain Clinic in the following terms:
“The worker told the Panel that towards the end of 2014, because of the ongoing symptoms in his lower back he was referred to the Metro Pain Clinic but could not recall the precise timing of the referral. He said that he received injections to the lower back which he felt provided partial relief for a short period. He described a series of four injections over a period of 30 to 60 minutes on the first occasion. He said that at a later date, some weeks after the first series of injections he had a further series of injections but recalled obtaining no relief. He said that he then received a further two injections to the sacroiliac joints, one of which caused him to experience considerable pain but had no significant long-term effect on his underlying symptoms.”[37]
[37]PCB 69
61 The Medical Panel noted that the report of Dr Melanie Simpson dated 24 February 2014 (scil 20 February 2013) noted that the general practitioner had recorded that further x-rays and screening for HLA B27 were normal, which excluded a diagnosis of sacroiliitis.[38] On the basis of that evidence, there was no sufficient evidence to establish that the plaintiff suffers from a condition of sacroiliitis.
[38]PCB 70
MRI scan of the lumbosacral spine performed on 9 January 2013
62 The plaintiff underwent an MRI examination on 9 January 2013 at the request of Dr Sekhon. The report of the MRI examination performed by Dr Michael Lee, stated the following:
“At L3/4 minimal disc bulge noted. Central canal and neural foramina adequate.
At L4/5 no disc bulge noted. Central canal, subarticular recesses and neural foramina are adequate.
At L5/S1 no disc bulge or protrusion evident with central canal and neural foramina adequate.
No significant facet joint changes.
…
Conclusion:
- There is an impression of bilateral sacroiliac joint space narrowing and articular irregularity without subchondral marrow oedema or increased joint signal. This may indicate quiescent bilateral sacroiliitis. Correlation with pain radiography suggested in the first instance.
- No evidence of inflammatory spondyloarthropathy.
- Minimal annular disc bulges at L3/4 and L4/5.
- No central canal or neuroforaminal stenosis. No neural compression evident.”[39]
[39]PCB 51
The Defendant’s Doctors
Dr David Barton, consultant occupational physician
63 Dr David Barton prepared three reports dated 28 May 2013, 12 June 2013 and 7 November 2013. The defendant only relied upon the report dated 7 November 2013. Dr Barton’s opinion was set out as follows:
“I believe he has persisting symptoms following what appears to be a soft tissue injury, complicated by a strongly held illness belief and poor medical advice.
I do not believe it is possible to say that his condition had resolved.”[40]
[40]DCB 11
64 At the time of his report, Dr Barton noted that there was an over medicalisation of the plaintiff’s problem and the motivational factors attributable to the plaintiff were playing a part in his condition.[41]
[41]DCB 12
Dr Umberto Boffa, occupational physician
65 Dr Umberto Boffa prepared a report for the defendant dated 29 October 2014. At the time of his report, Dr Boffa noted that the plaintiff had a mechanical low back pain without radiculopathy with likely lumbar facet-joint pain generators.[42] He noted that the plaintiff had a current work capacity for normal hours and without restrictions.
[42]DCB 17
Dr Ian Dickinson, orthopaedic surgeon
66 Dr Ian Dickinson prepared a report dated 17 April 2018. Dr Dickinson examined the plaintiff and prepared this report for the purposes of this application.
67 Dr Dickinson examined the plaintiff and made the following finding:
“He had no tenderness in his lumbar spine, no muscular spasm and no guarding. He could squat readily.
…
There was normal power and sensation in his lower limbs.”[43]
[43]DCB 22
68 Dr Dickinson noted the MRI examination of 9 January 2013 and stated there were minor disc bulges at L3-4 and L4-5. He also noted that the MRI report recorded an “impression of bilateral sacroiliac joint space narrowing”.[44]
[44]DCB 22
69 Dr Dickinson’s opinion was that the finding of the MRI scan available indicates that the spine is normal.
70 Dr Dickinson’s opinion was that the plaintiff’s pain has no organic basis. He went on to state as follows:
“Mr Keenan describes ongoing taking of Celebrex. There is no evidence of any condition that he has that would require him to keep taking the Celebrex. He has had chiropractic treatment which helped. There is no evidence however, that he requires any treatment for the condition of which he complains. There is no evidence of any significant medical condition.”[45]
[45]DCB 23
71 In the final part of his report, Dr Dickinson confirmed that, in his opinion, there was no significant abnormal clinic findings in respect of the plaintiff. He noted that there is no evidence of any pain disorder. He stated that there was evidence of non-organic functional overlay. Dr Dickinson’s opinion was there was no evidence of any pathology which would cause the symptoms of which the plaintiff complains.[46]
[46]DCB 24
72 The most recent medical opinions are those of Mr Ian Dickinson, orthopaedic surgeon, and Dr Clayton Thomas, rehabilitation and pain management consultant.
73 Dr Clayton Thomas, at the highest from the plaintiff’s point of view, states that the prognosis for the plaintiff is for ongoing backache with some radiation into the right more than the left leg which seems to be a referred phenomenon from his lumbar spine. In contrast to that, Dr Dickinson states that there is no pathology to support the plaintiff’s complaint of pain and referred pain into his right leg.
74 There is a lack of any contemporary and current treating medical reports to support the plaintiffs claim for serious injury certification in the light of the whole of the evidence in this case. Specifically, Dr Dickinson, having examined the MRI findings from 2013, states that that MRI is essentially a normal finding. There is no up-to-date radiological reports that give support to a pathology in the plaintiff’s back which would give an explanation for the complaints made by the plaintiff.
75 I find that the medical evidence in total does not advance the plaintiff’s claim for serious injury certification and as the onus of proof is upon the plaintiff, this application relies entirely upon an acceptance of the evidence given by the plaintiff.
The credit of the Plaintiff
76 The plaintiff gave evidence and was cross-examined in this matter. The evidence given by the plaintiff in relation to the injury and the cause of the injury are all consistent with the documents in the court book which are made at the same time as the accident. I accept that the plaintiff was injured in the manner he has described. The real issue in this case is whether or not the consequences arising from that injury are the same today and will remain permanently into the future.
77 Mr Carson, on behalf of the plaintiff, submitted that the plaintiff was a stoic person. Mr Carson relied upon the statement made by Nettle JA in the case of Dwyer v Calco Timbers Pty Ltd (No 2),[47] where his Honour stated:
“… but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. … But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[47][2008] VSCA 260 at paragraph [4]
78 I have had the advantage of observing the plaintiff in the witnessbox when giving his evidence and read all of the medical reporting on his condition and his presentation to doctors in the course of this case. In particular, I note that the occupational physician, Dr Barton, noted at the earliest time that the plaintiff was focussed on his strongly held illness belief. I note also that the plaintiff had attended upon his general practitioner requesting to be referred to the Metro Pain Clinic. There is no medical report from the Metro Pain Clinic, nor is there any report from the general practitioner dated after the plaintiff’s treatment at the Metro Pain Clinic. The lack of these medical reports brings into sharp focus a total acceptance of the plaintiff’s evidence in order for the Court to find in his favour.
79 I do not accept that the plaintiff is a person who displays stoicism. Fortunately, he has been able to retrain and has obtained more appropriate employment in his capacity to supervise and control contracts in the gas industry. It is clear on his evidence that the pay levels for his current employment are higher than those of his past employment as a carpenter. Indeed, in his evidence, the plaintiff states that the reason he was doing the job with the employer in this case was because of the higher pay and he liked to work on big projects.[48]
[48]T8
80 I do not find the plaintiff to be consciously seeking to mislead the Court. Rather, I find that he has focussed on his perceived pain symptoms and he has communicated that to the medical examiners. The objective medical evidence does not support his claim.
The consequences of the injury to the Plaintiff
81 The plaintiff relied on two affidavits sworn by him, respectively on 4 January 2018 and 15 January 2019. In those affidavits, he set out the consequences of the low back injury he received in the course of his employment with the employer.
82 At the commencement of his evidence, the plaintiff also stated that he had, in the days immediately prior to the hearing, attended at the Pinnacles in the Grampians. He stated that he had walked on that day and was in considerable pain the following day. He stated that he needed to rest after doing anything slightly strenuous.[49]
[49]T7
Sleep
83 The plaintiff deposed that as a result of the pain, his sleep is interrupted and he wakes up. He stated that he uses a foam wedge under his knees in bed which helps with his leg and back pain.[50] In his later affidavit, the plaintiff deposes that due to the pain, he finds it difficult to get to sleep, and once asleep, he wakes up a number of times during the course of the evening.[51]
[50]PCB 32, paragraph [26]
[51]PCB 38, paragraph [12]
84 I accept that for a person to have interrupted sleep as a result of pain is a consequence for them. Based on all the evidence in this case, I am not satisfied that the interruption to sleep described by the plaintiff is more than significant or marked and I am not satisfied that it reaches the level of being a very considerable consequence.
Pain
85 The plaintiff, in his first affidavit, sets out that he frequently worked in significant pain and will usually come home from a shift feeling very stiff and sore.[52] He goes on to state that his back pain is always there and that he would rate his leg pain as more problematic than his back pain.[53]
[52]PCB 31, paragraph [22]
[53]PCB 32, paragraphs [23]-[24]
86 In his later affidavit, the plaintiff states that the back and leg pain is always there. He describes that the pain can flare up to a very strong level. I note the evidence given by the plaintiff when cross-examined by Mr Middleton, for the defendant. In the course of that evidence, I gained the impression that the plaintiff’s pain was not a constant issue for him but more a situation where now and again he would have what are described as flare ups of pain.
87 The plaintiff is able to conduct all of the necessary activities of daily living, including attending work on a full-time basis. When considering the totality of the evidence in this case, I do not accept that the pain complaints made by the plaintiff amount to the level required to satisfy the test for serious injury certification.
Medication
88 In the course of evidence, the plaintiff stated that he takes Celebrex on an intermittent basis. He maintained that he did not take Celebrex constantly because it was not good for his health. In his first affidavit, he states:
“I usually resort to taking Celebrex tablets every couple of days when the pain gets too much to bear.”[54]
[54]PCB 32, paragraph [25]
89 This statement indicates that the plaintiff’s levels of pain are fluctuating. The other concern I have about making a finding in respect of medication is that there is no medical evidence support for the prescription of Celebrex to the plaintiff. The only evidence in this case concerning the plaintiff’s ingestion of Celebrex is from him. He either gives a history of taking Celebrex from doctors at the current time or he has given evidence directly of taking Celebrex in this court hearing.
90 I am not satisfied that the intermittent ingestion of Celebrex amounts to a very significant consequence for the plaintiff.
Ongoing treatment
91 The plaintiff has given evidence that he attends a chiropractor and takes the medication of Celebrex. He continues to attend a gymnasium in order to maintain his strength and fitness.
92 In the course of his evidence, he described his treatment as “a tablet as required, and stretching daily”.[55]
[55]T13, L14-15
93 Mr Dickinson, orthopaedic surgeon, described the plaintiff’s mobility as being stiff. This stiffness is in his lower back.
94 I do not accept that the minimal ongoing treatment as outlined by the plaintiff and his uncorroborated attendances on a general practitioner for medications amounts to a very significant consequence for the plaintiff.
Sport
95 The plaintiff has given evidence that he no longer partakes of snowboarding or water skiing as a result of the injury to his lower back.[56]
[56]PCB 33, paragraph [30], PCB 38, paragraph [13]
96 The plaintiff also states that he was unable, and is unable to attempt trailbike riding in the bush as a result of the injury to his back.[57] In respect of the trailbike riding, I note that the plaintiff is still able to ride a motorbike but does not ride it in a “bush bash” in the sense of trailbike riding. I note the plaintiff gave evidence that he had recently partaken in wake boarding which is an alternative to water skiing. It is instructive that the plaintiff would contemplate attempting such an activity if his description of limitations was fully accurate.
[57]PCB 33, paragraph [31]
97 I do not accept that the described limitations on the plaintiff’s sporting activities as a result of his low back injury is a very significant consequence for him.
The Plaintiff’s activities with his son
98 The plaintiff has given evidence that he is unable to fully partake in activities with his son as a result of his low back injury. In particular, he refers to being unable to bend down and push his son on a trike or pick him up.
99 I do not accept the plaintiff is unable to push his son on a trike or pick him up if required due to the pain that he claims to have suffered in his lower back. Such activities are of such minor physical requirement and are within his capacities as demonstrated in the examination by both Dr Clayton Thomas and Mr Ian Dickinson.
Loss of work
100 The plaintiff, in his final affidavit, states that one of the consequences of his low back injury is that he now feels trapped in a job he never wanted.[58] In that affidavit, he states that he enjoyed working on the tools and does not enjoy the supervisory duties that he is required to perform in his current work life. I do not accept this consequence as stated by the plaintiff in this case. In his evidence, the plaintiff stated that the reason he was working in the job with the employer at the time of his injury rather than as a carpenter was that he was paid more money and that he enjoyed working on big commercial contracts and liked the machining operation of big commercial jobs. His current employment obviously has resulted in a higher level of pay for him and also that he works on and supervises commercial works.
[58]PCB 39, paragraph [18]
101 I do not accept that this is of any consequence to the plaintiff.
Conclusion
102 I conclude that taking into account the consequences as I have found them to be, that they are not of such a level to be properly described as being “very considerable”, either separately or individually, or collectively as a group. I am not satisfied that the plaintiff’s impairment as a result of the injury to his lower back is “more than significant or marked” and could properly be described as being “at least very considerable”.
103 The application for serious injury certification for pain and suffering by the plaintiff is dismissed.
104 I will hear the parties on costs.
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