Keenan v Victorian WorkCover Authority; Keenan v Workforce Recruitment and Labour Services Pty Ltd (ACN 142 782 296)
[2020] VCC 1960
•11 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05789
| JAMIE PATRICK KEENAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
-and-
CI-18-04694
| JAMIE PATRICK KEENAN | Plaintiff |
| v | |
| WORKFORCE RECRUITMENT AND LABOUR SERVICES PTY LTD (ACN 142 782 296) | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 April 2020 | |
DATE OF JUDGMENT: | 11 December 2020 | |
CASE MAY BE CITED AS: | Keenan v Victorian WorkCover Authority; Keenan v Workforce Recruitment and Labour Services Pty Ltd (ACN 142 782 296) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1960 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine – pain and suffering – loss of earning capacity – suitable work
Legislation Cited: Accident Compensation Act 1985 (as amended), s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Richter v Driscoll [2016] VSCA 142; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
Judgment:Leave granted to bring proceedings for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr D O’Brien | Arnold, Thomas & Becker |
| For the Defendants | Mr D Myers | Lander & Rogers |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”) for injury to the lumbar spine suffered by the plaintiff in the course of his employment with Workforce Recruitment and Labour Services Pty Ltd (“Workforce”) on or about 8 December 2014 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and s134AB(38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a)permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied upon two affidavits, sworn 31 May 2017 and 29 April 2020,[1] and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
[1]Exhibit A
Outline of Section 134AB
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, as at the date of the hearing, as being “more than significant or marked” and as being “at least very considerable”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing, and permanently thereafter.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] Richter v Driscoll[3] and Meadows v Lichmore[4] in reaching my conclusions.
[2](2005) 14 VR 622
[3][2016] VSCA 142
[4][2013] VSCA 201
The issues
15 The defendants concede the plaintiff suffered an injury to his lumbar spine on 8 December 2014, but does not concede such injury meets the requirements of subparagraph (a) as amplified by ss(38) above, of the definition of “serious injury” referred to above. Further, the defendants challenge whether the plaintiff has been able to disentangle the physical from the psychological effects of the injury in accordance with the principles laid down in Meadows v Lichmore[5] above. Also, the defendants assert that the plaintiff has recovered from the injury, in that there is a different presentation by the time of hearing. The plaintiff’s credit was also in issue.
[5]ibid
The Plaintiff’s evidence
16 In his first affidavit sworn 31 May 2017, the plaintiff swore he was born in October 1980 and he was educated to Year 9 level. In his past working life, he had been a qualified carpet layer and had worked for a number of years operating polishing machines for a stonemason. He had also worked a number of years assembling doors in a factory and worked as a labourer at the desalination plant near Wonthaggi. In the latter job, he had done concreting and labouring work for about eighteen months and was thereafter out of the workforce for about thirteen or fourteen months, in which time he supported himself, his domestic partner and daughter by money he had saved while working at the desalination plant.
17 The plaintiff commenced work for Workforce in or about June 2014. His first job involved labouring at the RAAF base near Point Cook. The work involved decontaminating soil at the site, which had been contaminated with dangerous chemicals. A huge tent had been set up of about 100 square metres to isolate the area in order to dig up and treat the soil.
18 At the time of his injury, the plaintiff was involved in replacing a section of wall of the tent which had been blown out by the wind. The plaintiff’s task was to feed the section of wall’s inter-vertical metal guiderails. He would feed a metre or so on one side and then move over to the other side and feed the other vertical guide. Also involved with the task were two elevated work platforms consisting of cherry pickers. Each platform was elevated approximately 5 to 8 metres above the ground and was manoeuvred by an operator at that height.
19 While he was bent over feeding a section of tent wall as described –
“… a heavy metal ratchet mechanism with the strap fully wound onto it fell from the cherry picker platform or the roof of the tent nearby onto my back. Immediately after it happened I felt extreme pain. Jay [an operator] immediately apologised.”[6]
[6]Exhibit A, paragraph 8
20 The plaintiff estimated the item weighed about 4 kilograms.
21 The plaintiff immediately reported the incident and, following the injury, he attempted to work on –
“… for a day or so. Because of ongoing pain I was forced to cease work and to attend a doctor.”[7]
[7]Exhibit A, paragraph 9
22 On 11 December 2014, the plaintiff saw a general practitioner at Melton Primary Medical Centre. He was put off work “for a period of time”.[8]
[8]Exhibit A, paragraph 10
23 The plaintiff lodged a WorkCover claim seeking weekly payments and medical expenses, and it was accepted.[9]
[9]Exhibit A, paragraph 11
24 The plaintiff swore he was off work for “a few months” and then returned to work with Workforce doing part-time light-duty work “about 3 or 4 days a week, about 6 hours a day”.[10]
[10]Exhibit A, paragraph 12
25 The plaintiff continued in this light employment until he received a letter dated 25 May 2015 from the WorkCover insurer purporting to cease all payments. He further swore in his first affidavit that he had not had any medical or like treatment thereafter “because I have been unable to afford any such treatment”.[11]
[11]Exhibit A, paragraph 12
26 In the interim, the plaintiff swore he continued to have treatment from general practitioners at the Melton Primary Medical Clinic. In the course of that treatment, he had a CT scan on his lumbar spine on 11 December 2014 and an MRI scan of the lumbar spine on 27 February2015.[12]
[12]Exhibit A, paragraph 13
27 Also in this period, the plaintiff had physiotherapy treatment from Mr Iftekhar Mahmud, physiotherapist, in Melton.[13]
[13]Exhibit A, paragraph 14
28 The plaintiff’s general practitioner also referred him to neurosurgeon, Mr Craig Timms. Before his first attendance, all benefits had been terminated as referred to above, and his appointment was cancelled.[14]
[14]Exhibit A, paragraph 15
29 After May 2015, the only treatment for some time with respect to the plaintiff’s back was allegedly from Dr Ken Bowes, general practitioner, of Thornbury, who prescribed the plaintiff methadone for a pre-existing heroin addiction, and Deptran to help him sleep. The plaintiff alleges that Dr Bowes was aware of the back pain and the injury, and the plaintiff considered that the methadone helped to combat his back pain.[15]
[15]Exhibit A, paragraph 17
30 The plaintiff has also sworn that between the ages of seventeen years and twenty-three years, he was a heroin addict (1997 to 2006). Thereafter, he was placed on a methadone program to counteract his heroin addiction and has been on that program ever since “with good success”.[16]
[16]Exhibit A, paragraph 4
31 Further, when the plaintiff was about eighteen years of age, he was in prison for four months and when he was nineteen years of age, he was in prison for six months. “These offences were to do with theft and cannabis cultivation.”[17]
[17]Exhibit A, paragraph 5
32 Further, between 28 September 2015 and 27 January 2016, the plaintiff was imprisoned for driving offences, including driving whilst unlicensed and driving whilst disqualified.[18]
[18]Exhibit A, paragraph 6
33 The plaintiff had previously been in a relationship for some twelve years which had ended in 2014, before he suffered his injury, and of which there was a surviving daughter, aged nine years.[19]
[19]Exhibit A, paragraph 7
34 Since being released from prison on 27 January 2016, the plaintiff had been in receipt of Newstart payments. The plaintiff alleges he has been unable to find work because of his injury, and that the only work he had done in the past involved physical labour, for which he was no longer qualified to do.[20]
[20]Exhibit A, paragraph 18
Pre-injury
35 Prior to commencing work with the present employer, the plaintiff alleges he had a “very good work record for many years”.[21] He swore that in the past the only lengthy period out of the workforce was for the thirteen or fourteen months after he finished work at the desalination plant, which work had been extremely well paid and resulted in a large redundancy package, which enabled him to concentrate on domestic duties until he commenced the subject employment.[22]
[21]Exhibit A, paragraph 21
[22]Exhibit A, paragraph 21
36 Further, the plaintiff swears that when working for the employer, he performed a lot of overtime. He swore he “generally worked 10 hours a day, Monday to Friday, and generally worked between 6 and 8 hours each Saturday”.[23]
[23]Exhibit A, paragraph 22
37 On 6 July 2016, the plaintiff claimed impairment benefits compensation in respect of the injury. The claim was accepted and a Medical Panel determined the amount of compensation as a result of permanent impairment pursuant to the injury.[24]
[24]Exhibit M, 15 February 2017
38 The plaintiff told the Panel at this time that he did not proceed with the neurosurgical assessment from Mr Timms, or indeed a pain management referral, because of funding issues.[25]
[25]Exhibit M, Plaintiff’s Court Book (“PCB”) 126
39 In his second affidavit sworn 23 April 2020,[26] the plaintiff swore that he felt he was not making any progress with Dr Bowes with respect to his back injury and decided to find a new general practitioner. He settled upon Dr Imraan Ansari at St Alban’s Complete Health Care. He first saw him on 3 August 2018. He was prescribed Panadeine Forte.[27]
[26]Exhibit A
[27]Exhibit A, affidavit sworn 23 April 2020, paragraph 6
40 The plaintiff swore that both Dr Bowes and Dr Ansari wanted him to go on a pain management program but initially WorkCover refused to fund same. Apparently they agreed to fund it in 2019 and the plaintiff attended for –
“… 6 weeks, three days a week. [He] … saw physios, psychologists and occupational therapists. The program helped … [him] psychologically more than physically. What … [he] meant by that is that it didn’t really change the pain itself, but gave … [him] more confidence to push through it.”[28]
[28]Exhibit A, paragraph 7
41 That pain management program was supervised by Dr Symon McCallum, pain specialist, and the plaintiff continued to see him every few months. He also saw Dr Kilner Brasier, an occupational and environmental specialist, on referral from Dr McCallum.[29]
[29]Exhibit A, paragraph 8
42 The plaintiff further swore:
“I have been doing my best to rehabilitate myself in other ways too. I completed a logistics course recently. It was actually more about computers than anything. I think they were trying to train us to use warehouse programs.”[30]
[30]Exhibit A, paragraph 9
43 As to his current capacity, the plaintiff swore:
“I’d like to find some light, part-time work in that area [logistics] if I could. I wouldn’t be able to do any of the physical stuff in the warehouse, so I am not sure if that kind of job actually exists. I am not sure if I will be able to work at all because of my back pain, but if something is offered to me I would be happy to give it a go. I would like to work on alternate days of the week if I can to give my back a chance to rest in between, and I don’t think I could do full days because my back gets too painful after sitting or standing for a few hours and I need to lie down.”[31]
[31]Exhibit A, paragraph 10
Current treatment
44 The plaintiff has sworn that his pain relief presently is from methadone. He swore he had to stop the Panadeine Forte because “it didn’t go well” with the methadone.[32] Occasionally, the plaintiff will take Lyrica or Diazepam to help with “flare ups of pain”.[33] He also takes Deptran, 50 to 100 milligrams each night, to help him sleep.[34] Apparently WorkCover is still paying for his general practitioner sessions, swimming pool, which he attends twice a week, and for his medication.[35]
[32]Exhibit A, paragraph 11
[33]Exhibit A, paragraph 12
[34]Exhibit A, paragraph 14
[35]Exhibit A, paragraph 15
Consequences of the injury
45 The plaintiff has sworn in his second affidavit:
“Things are basically the same for me as I described them in my affidavit of 31 May 2017.”[36]
[36]Exhibit A, paragraph 16
46 That condition was described in paragraph 19 of the first affidavit. The plaintiff swore that he experiences low-back pain in an area just above his left buttock and across his spine, and such pain is constant. The constant pain is about a level of two and at times he experiences very sharp pain which lasts for about 2 seconds and this pain is about a 10. He further swore:
“In addition if I do activities for a period of time such as vacuuming after 5 or 10 minutes I experience a marked increase in low back pain up to about a level of about 8 and this pain takes about half an hour to an hour to diminish down to the more constant level of about 2 out of 10. Thus, I avoid as much as possible tasks which involve bending, lifting or twisting. However, I find that I still have to do things and thus I experience daily exacerbation of pain. If I walk for more than about half an hour I get a marked increase in low back pain up to about a level of 8 … and it takes about half an hour to an hour for that pain to ebb away to about a 2 … If I drive for between half an hour and three quarters of an hour I get a marked increase in low back pain and I have to stop and walk around to ease off the pain. If I stand in one position for more than about 10 minutes I get an increase in pain and I have to shift around it to ease off the pain … .”[37]
[37]Exhibit A, paragraph 19
47 In his second affidavit, the plaintiff has sworn:
“I continue to have constant lower back pain that goes down into my buttocks. The pain is so-so when I have been resting for a while, but as soon as I start physical activity it becomes much worse. It is an aching, throbbing sort of pain, that becomes a sharp pain if I do anything that I shouldn’t do. I get an ‘electricity’ feeling with spasms in my lower back a few times a day.”[38]
[38]Affidavit sworn 29 April 2020, paragraph 17
48 Further, the plaintiff has sworn:
“About 2 or 3 days of the week my pain flares up and is worse than normal. I really struggle to do much on these days. Previously I would just spend the day in bed, but since doing the pain management program I will make myself get up and at least do some light chores. I still can’t do much, though. I also make sure that I do my daily functional exercises in accordance with the pain management program I completed.”[39]
[39]Affidavit sworn 29 April 2020, paragraph 20
Medical evidence
49 Prior to his imprisonment on 28 September 2015, the defendants had the plaintiff examined by three different medico-legal examiners, being Dr Dominic Yong, occupational physician, on or about 6 February 2016;[40] Mr Clive Jones, orthopaedic surgeon, on 1 April 2015,[41] and Associate Professor Anthony Buzzard, surgeon, on 20 September 2016.[42]
[40]Exhibit 2
[41]Exhibit 3
[42]Exhibit 4
50 In the first report, Dr Yong took a history that the metal ratchet weighed about 4 kilograms, that the plaintiff had been attending his general practitioner, had undergone physiotherapy and was experiencing no significant improvement in his back symptoms.[43]
[43]Exhibit 2, Defendants’ Court Book (“DCB”) 19
51 On examination, Dr Yong found:
“There was tenderness to palpation over the low back in the midline. Range of movement of the spine was 50° flexion, 10° extension which was tender, 10° lateral flexion which was tender and 20° rotation which was tender. The straight leg raise was 30° bilaterally.
The neurological examination of the legs revealed no sensory loss. The knee and ankle reflexes were normal. The tone in both legs was normal and symmetrical. The power in both legs was normal and symmetrical.”[44]
[44]Exhibit 2, DCB 21
52 Dr Yong did not view any investigations, and noted that the plaintiff weighed 74 kilograms and was 174 centimetres tall. In summary, he felt the plaintiff was –
“… a man who has had a significant traumatic injury to his low back 2 months ago. He has clinical features suggestive of bone bruising.
…
In the interim he should be encouraged to be participating in a graduated activity based recovery program. This could include exercises in a swimming pool and a daily walking program.
…
The worker’s injury has not resolved.
… [and] relates from the worker’s injury from 8/12/2014.
…
He does not have a current capacity to work [labouring] duties and hours.”[45]
[45]Exhibit 2, DCB 21
53 Dr Yong’s recommendations at that time included the following:
·Reduction in working hours.
·Avoid repeated bending and twisting the back.
·Avoid lifting more than 4 kilograms on a repeated basis.
·Vary posture regularly between sitting, standing and walking.[46]
[46]Exhibit 2, DCB 22
54 Thereafter, the defendants referred the plaintiff to Mr Jones, orthopaedic surgeon, on 1 April 2015.[47] Mr Jones took a history that the weight of the ratchet was around 6 kilograms, although the doctor himself thought the weight of the object was 700 grams. Further, the plaintiff was currently employed with another employer “being seated at a table, bagging nuts and bolts and other small items”.[48]
[47]Exhibit 3
[48]Exhibit 3, DCB 25
55 Current treatment included twice-weekly physiotherapy visits, with more recent attendances at a hydrotherapy facility in Melton. Celebrex was prescribed as an anti-inflammatory and it was noted the plaintiff had been on a methadone program for the past thirteen years.[49] The history of present complaints was that the pain was constant and there was no relief. He was unable to get comfortable in bed at night. The pain involved the right buttock and right groin area, but did not radiate into the legs and there was no sciatica:
“Payments from the insurer were withdrawn for a time, but have since been reinstated.”[50]
[49]Exhibit 3, DCB 25
[50] Exhibit 3, DCB 25
56 On examination, Mr Jones does not mention any restrictions in movement one way or the other, but notes that all lower limb reflexes were present. Mr Jones noted that the MRI scan of the lumbar spine made on 27 February 2015 revealed:
“Mild diffuse disc bulges at 12-3, L3-4 and 14-5 are present. There was no significant neural impingement at any level.”[51]
[51]Exhibit 3, DCB 26
57 Mr Jones’ diagnosis was:
“Presumably the impact caused soft issue injury of some kind.”[52]
[52]Exhibit 3, DCB 26
58 Mr Jones considered the injury had resolved and there was no longer material contribution by the claimed injury. Mr Jones thought that the plaintiff was capable of working, and full-time hours in his present employment (light duties) should be possible.[53] However, he did not believe restrictions of a physical nature were required. Although he stated that the capacity should be reviewed in three months, he did not consider there was any requirement for treatment or intervention at that stage. Mr Jones stated:
“… He has had an MRI, which does not show any significant problem with the spine.”[54]
[53]Exhibit 3, DCB 27
[54]Exhibit 3, DCB 28
59 In his report dated 22 September 2016, Professor Buzzard took a history that Dr Rabbani had referred the plaintiff to Mr Timms, neurosurgeon, as he had not been able to see him as “Allianz cut me off on the day of the appointment”.[55] He also stated Dr Rabbani had sent him for pain management, but, once again, this was not proceeded with. He stated he could not afford to finance his own medical treatment.
[55]Exhibit 4, DCB 30
60 The plaintiff complained of pain “‘just above the right buttock – it shoots all around my back and radiates down’”.[56] The pain extends down the right thigh on the lateral aspect of it to just above the knee. He thought the pain was worsening. At that stage, he was taking Nurofen at the rate of two to four per day, as well as methadone. The plaintiff also stated he thought he had put on about “30kgs over the last 18 months”.[57]
[56]Exhibit 4, DCB 31
[57]Exhibit 4, DCB 31
61 Professor Buzzard noted that the plaintiff did not have any investigations to see other than the MRI report from Capital Radiology dated 27 February 2015. No further comment is made with respect to this investigation.
62 On examination, there was restriction of movements of the lumbar spine, with straight leg raising tests bilaterally positive at 40 degrees. Professor Buzzard was nonetheless bothered by the finding of the plaintiff being able to sit at right angles on the examination couch without difficulty and yet having bilaterally positive straight leg raising tests. Professor Buzzard opined:
“I don’t think that there is definite clinical or radiological evidence to support his ongoing symptoms.”[58]
[58]Exhibit 4, DCB 33
63 Nonetheless, Professor Buzzard considered it appropriate for the plaintiff to have minor oral analgesics and over-the-counter medication such as Panadol Osteo for pain relief.
64 With respect to employment capacity, Professor Buzzard felt that the plaintiff should be at least capable of working in a job not involving extremely heavy lifting.[59]
[59]Exhibit 4, DCB 33
65 I note, nonetheless, Professor Buzzard assessed the plaintiff as having a 5 per cent whole person impairment with respect to the claimed injury pursuant to the full edition of the American Medical Association Guides to the Evaluation of Permanent Impairment.[60]
[60]Exhibit 4, DCB 34
66 In this same period, the plaintiff’s original general practitioner, Dr Rabbani, provided a report dated 28 April 2015.[61] He took a history that the weight of the ratchet varied from 1 kilogram to up to 5 to 7 kilograms from a height of about 7 metres. Dr Rabbani thought that the plaintiff should be able to do –
“… more sedent[a]ry, office based, non repetitive work, that does not involve lifting more than 5 kgs of weight with both hands. Any job that involves bending or squatting should not be given to him.”[62]
[61]Exhibit B
[62]Exhibit B, PCB 19
67 Dr Rabbani considered that the MRI scan and CT scan of the back did not suggest any major or serious damage to the back.
68 In his second report dated 31 July 2015, Dr Rabbani confirmed that he had referred the plaintiff to Mr Craig Timms and also indicated he needed to be referred to a pain management clinic. He then stated rather elliptically –
“During the Case conference it was decided that … [the plaintiff] will start seeing any other doctor so I did not proceed with the referral.”[63]
[sic.]
[63]Exhibit B, PCB 21
69 Mr Iftekher Mahmud, the treating physiotherapist, furnished reports dated 14 January 2015 and 23 September 2015.[64]
[64]Exhibit C
70 In his first report dated 14 January 2015, Mr Mahmud recommended a program of thrice-weekly attendances for a period of three months.[65]
[65]Exhibit C, PCB 22-23
71 In his second report dated 23 September 2015, Mr Mahmud noted the initial physiotherapy treatment was on 6 January 2015, and at that time, the plaintiff was not sure how heavy the load was.[66] Mr Mahmud noted:
“The initial CT scan and later MRI scan showed multi level Lumbar disc degeneration and disc prolapse. Nil signs of reffered [sic] pain or radiculopathy noted. No acute fracture, or Listhesis (sliding of vertebrae) noted.”[67]
[66]Exhibit C, PCB 24
[67]Exhibit C, PCB 24
72 Mr Mahmud’s diagnosis was one of a –
“… Lower back strain and pain while at work, when some heavy loads fell on his back. … .”[68]
[68]Exhibit C, PCB 24
73 Up until the plaintiff’s last session, Mr Mahmud thought the plaintiff’s condition –
“… was NOT stabilized as he was still in pain and discomfort. … [He] only responded well with Electrotherapy or treatment with modalities. From my assessment, … [his] pain tolerance and pain threshold is and was very low, he couldn[’]t tolerate any ‘hands on’ physio treatment, which obviously [did] not correspond at all with the findings of the MRI and CT scan. … .”[69]
[69]Exhibit C, PCB 25
74 In a handwritten report dated 13 July 2018, Dr Bowes, general practitioner, confirmed that the plaintiff had a WorkCover injury with chronic lower back pain when a heavy weight fell on his back in “December 2015” [scil 2014]. Dr Bowes confirmed the plaintiff had been on Deptran, Lyrica, Panadeine Forte and Valium, with occasional physiotherapy. He was currently on methadone, 55 grams daily, occasional Panadeine Forte and Valium.[70]
[70]Exhibit D, PCB 26
75 The defendants also tendered into evidence Dr Rabbani’s clinical records, which were not capacious.[71] The notes record the fact of injury on 8 December 2014, an attendance on 11 December 2014, with a certificate being issued, and a CT scan of the lumbar spine being ordered and Panadeine Forte prescribed.
[71]Exhibit 7
76 On examination on 11 December 2014, it is recorded, inter alia:
“L/S spine – tender paraspinal muscle, rom- restricted, no neurological deficit
Low Back pain
analgesic
exercise
rw with CT scan report.”[72]
[72]Exhibit 7, DCB 125
77 On 14 December 2014, it is recorded that the CT scan report was received and explanation given to the plaintiff. Advice was given about light duties, he was to continue analgesic, but advised to see another doctor and “rw prn”.[73]
[73]Exhibit 7, DCB 125
78 On 16 December 2014, the plaintiff was prescribed Voltaren and Panadeine Forte. Further, he gave a history that while bending down at work, around about 1 kilogram of equipment was thrown accidently from 7 metres high onto his back and he has suffered from severe pain since then. A CT scan had shown mild disc bulges which “may or may not be related”.[74] On examination, it was noted:
“quite stiff back and pt is in obvious pain.
nil much bruising now but lumbar region paraspinal musculature is in spasm.”[75]
[74]Exhibit 7, DCB 124
[75]Exhibit 7, DCB 125
79 The plan included physiotherapy, Voltaren regularly, Panadeine “PRN only” and once better he should go on light duties.[76]
[76]Exhibit 7, DCB 125
80 Thereafter, there are a number of reviews with no significant improvement. On 9 February 2015, it is noted:
“Better with LX brace, also have started liught (duties at Melton, able to short drive, don’t have power steering, persistent pian across then lower back, working plan from this week, 5 days 6 hours each day. No heavy lifting or loading involved.”[77]
[sic.]
[77]Exhibit 7, DCB 123
81 On 3 Mach 2015, it is noted:
“Has confirmed disc bulg[e] L4-5.”[78]
[78]Exhibit 7, DCB 122
82 On 12 March 2015, it is noted:
“back pain flare up with work today
Want to have some time off work to rest
Have back pain under work cover
Well looking
Back tender on low back.”[79]
[79]Exhibit 7, DCB 121
83 On 18 March 2015, it appears there was a very long case conference with the plaintiff, a rehabilitation operative and somebody from Allianz. Apparently the MRI report and CT scan were discussed, but Dr Rabbani could not put his finger on the reason why the pain was “excruciating” without any radiographic evidence of structural damage. It was agreed he would see another doctor in the clinic.[80]
[80]Exhibit 7, DCB 121
84 On 4 May 2015, it is recorded:
“[H]as missed work today due to exacerbation of pain
doing suitable duties under Workcover
Due to see Ortho Specialist 27th may
has been attending lfte physiotherapy
will be referred to Pain Specialist
By Alliance
… .”[81]
[81]Exhibit 7, DCB 120
85 It would appear that the last clinical attendance was on 19 May 2015, with the note:
“back pain flare up a bit more in this cold weather
…
Analgesic prn
…
Wc cert for 3 days off
r/v in 1/52 or earlier if worsen or problems or concerns.”[82]
[82]Exhibit 7, DCB 119
86 The defendants also tendered into evidence Dr Ansari’s clinical notes, beginning 3 August 2018.[83] It would appear that there were prescriptions issued for Panadeine Forte, Deptran and Valium from 3 August 2018 until 15 January 2020.[84] On 3 August 2018, a history was taken of the relevant WorkCover mechanism, with a history that the plaintiff has been seeing Dr Bowes but wanted to transfer. He had pain going into both buttocks and it was very hard to do activities of daily living. He was currently taking Deptran and Panadeine Forte. On examination, he was tender on the lower back and he had a limited range of motion. It was noted he would be referred to a pain management program.[85]
[83]Exhibit 8
[84]Exhibit 8, DCB 138
[85]Exhibit 8, DCB 137
87 Dr Ansari also reported to the plaintiff’s solicitor’s on 28 January 2020 and 20 April 2020.[86] Dr Ansari records the plaintiff undergoing a pain management program which was regularly reviewed by Dr Symon McCallum, pain specialist, and Dr Brasier, occupational and environmental medicine specialist.[87] Dr Ansari was relying on the opinions from Dr McCallum and Dr Brasier, and thought that the plaintiff’s work-related injuries would affect his ability to perform his daily, domestic and personal activities. He considered it would also affect his social, recreational and employment activities, and such preclusions were likely to be of a permanent nature. He also thought the prognosis was guarded.[88]
[86]Exhibit E
[87]Exhibit E, PCB 37
[88]Exhibit E, PCB 38
88 In his second report dated 20 April 2020, Dr Ansari considered that the plaintiff was –
“… capable of working restricted hours and duties – 15 hours per week with restrictions on heavy lifting, bending, pulling, pushing, twisting reaching, sitting, standing & walking for long, and any repetitive movements of his back.”[89]
[89]Exhibit E, PCB 39
89 As to why he considered the plaintiff only fit for fifteen hours of work per week, he stated:
“[The plaintiff] … suffers from flare-ups of back pain with pain going up his spine and pain in both thighs as well. He finds it difficult to walk at times. He has tried a pain management program and is being reviewed by his specialists; however, his condition is ongoing. He is also highly anxious and as such, he is not fit to work more than 15 hours a week due to his persistent physical and mental condition.”[90]
[90]Exhibit E, PCB 39
90 Dr Symon McCallum, pain physician and specialist anaesthetist, wrote to Dr Ansari on 20 March 2019.[91] He took a history of central lower back pain which was left of the spine at the lumbosacral junction:
“… It goes to the buttocks. It is a constant ache and it feels tired. It aches occasionally. It is increased when he lies down. It goes to the right lateral thigh occasionally.”[92]
[91]Exhibit F
[92]Exhibit F, PCB 41
91 The plaintiff’s current medications were methadone, 55 milligrams, for fourteen years; Deptran to help him with this sleep and mood, Valium prn and Panadeine Forte, four to six a day for about six months.[93]
[93]Exhibit F, PCB 41
92 As to investigations, Dr McCallum cited:
“ACT from 2014 shows transitional lumbar anatomy and facet joint arthropathy.
The MRI from February 20167 shows disc bulges and no spinal canal or foraminal stenosis.”[94]
[94]Exhibit F, PCB 42
93 On examination, the plaintiff had:
“… normal reflexes and power in his lower limbs. Lumbar flexion is 90°. Extension rotation increases the pain. He was tender to palpation in the left lower spine. His hips are normal. He is possibly positive for sacroiliac joint pain.”[95]
[95]Exhibit F, PCB 42
94 Dr McCallum’s impression was that the plaintiff –
“… may have a superior cluneal nerve injury. His pain may be related to the facet joint arthropathy. It could be a sacroiliac joint dysfunction.
…
… He is possibly a candidate for left-sided diagnostic medial branch blocks and left-sided L4/5 and L5/S1.”[96]
[96]Exhibit F, PCB 42
95 In his follow-up report dated 15 July 2019, Dr McCallum noted that the plaintiff still had pain in the left lower back at the lumbosacral area. He thought he should stop the Valium and try Circadin, 3 milligrams at night. He thought it was essential the plaintiff continue with his hydrotherapy, and that he had been approved for a pain management program and he would be reviewed afterwards, in about three months.[97]
[97]Exhibit F, PCB 43
96 Upon completion of the program, Dr McCallum reported again on 9 September 2019. Overall, there was some improvement. He was now taking methadone and Deptran and was not taking any Valium or Panadeine Forte. He was doing a logistics course. He was still possibly a candidate for medial branch blocks, as discussed earlier, and he was being referred to Dr Brasier for an occupational physician review. Dr McCallum also commented:
“I think … [the plaintiff] needs help re-entering the workforce.”[98]
[98]Exhibit F, PCB 44
97 In his next review dated 10 December 2019, Dr McCallum recorded the plaintiff might be able to work as a storeman and needed help with retraining to become a forklift truckdriver. However –
“There is no change in his pain. It is in the central lower back. It can flare up whipper snipping after 10 minutes. It got so bad he wished to go to hospital but he did not.”[99]
[99]Exhibit F, PCB 45
98 Dr McCallum reported the plaintiff was still taking Deptran and methadone. He considered the plaintiff should continue his hydrotherapy and leave his medications as they are. He was still possibly a candidate for the medial branch blocks and he should continue with retraining. Dr McCallum did not think the plaintiff was suitable for full time and full duties at this stage, and he thought a graduated return to work would be best.[100]
[100]Exhibit F, PCB 45
99 Finally, Dr McCallum reported to the plaintiff’s solicitor on 22 April 2020. He confirmed the earlier histories, examinations and diagnoses. He further stated:
“He has experienced extremely unpleasant events in the past. This will affect his prognosis. This will affect the distress and disability he experiences due to the pain. He has got a history of intravenous drug use. He is on methadone 55 mg.
He has not worked since 2014.
… It does seem as though ... [the plaintiff’s] problem started when he had the workplace injury on 8 December, 2014. I am under the impression he had no problems before.
… Yes, there is clear substantial organic basis for ... [the plaintiff’s] problems. The history of intravenous drug use, extremely unpleasant life events, and the current methadone use will clearly affect his presentation at the moment, but these would not cause his current symptoms. They would exacerbate it.”[101]
[101] Exhibit F, PCB 50
100 As to the plaintiff’s capacity for work, Dr McCallum stated:
“… I think it is extremely unlikely ... [the plaintiff] will be a labourer. He can only walk for 10 to 20 minutes. He has got a low level of function. He is going to be deconditioned. I think he should avoid a job that involves bending, lifting, and twisting. I think it is extremely unlikely he will be able to work in a full-time capacity.
… I think ... [the plaintiff] will be able to work part-time in a sedentary job. He would need significant retraining to do this. I think it is going to be very difficult for him to re-enter the workplace after being absent from it for about six years. It still though may be possible.
… think 15 hours a week is a reasonable starting point. This should be broken up throughout the week. The increase in hour should be extremely gradual.
… Yes, I do think the limits on ... [the plaintiff’s] hours are likely to be permanent. This is due to the reasons listed above, his poorly controlled pain, his poor level of function, and his psychological status.
… I think overall the prognosis is guarded.”[102]
[102]Exhibit F, PCB 50-51
101 Dr Kilner Brasier reported to Dr McCallum on 29 November 2019.[103] His current symptoms were of –
“… constant low back pain with intermittent exacerbations particularly when lying on his side or travelling In a motor vehicle. His pain was located in the left sacroiliac area radiating to his groin. He states his pain is increased today because of the taxi trip he took to come to see me today.”[104]
[103]Exhibit G
[104]Exhibit G, PCB 52
102 It was noted that the plaintiff’s pre-injury hobbies included fishing –
“… which has been adversely affected by his back injury and motorbike riding, which he no longer undertakes because of his injury.”[105]
[105]Exhibit G, PCB 52
103 It was noted the plaintiff had –
“… good spoken and written English skills and has basic computer skills.”[106]
[106]Exhibit G, PCB 53
104 It was noted the plaintiff had completed a pain management rehabilitation program “which he states was a big help”.[107]
[107]Exhibit G, PCB 53
105 Examination of the lumbar spine was within normal limits; however, he did report pain and extremes of movement.
106 It was Dr Brasier’s opinion the plaintiff had suffered a “mechanical injury to his lumbar spine”.[108]
[108]Exhibit G, PCB 53
107 Dr Brasier considered the plaintiff had no work capacity for the types of labour and employment he participated in previously and would be unable to return to any labouring activities in the future. It was noted that he obtained a Certificate III in Logistics and was keen to pursue employment in that area.[109]
[109]Exhibit G, PCB 53
108 Radiological reports were tendered in evidence. An MRI scan of the lumbar spine dated 27 February 2015 revealed –
“… Diffuse disc bulges at L2/3, L3/4 and L4/5 levels, causing mild narrowing of the respective neural foramina.”[110]
[110]Exhibit H, PCB 56
109 The plaintiff also tendered in evidence the opinion of orthopaedic surgeon, Mr Douglas Gardiner, in two reports dated 21 February 2018 and 26 October 2018.[111]
[111]Exhibit J
110 Mr Gardiner referred to the Medical Panel Certificate and Reason for Opinion dated 15 February 2017, and the defendants’ medical reports from Dr Dominic Yong dated 6 February 2015; Mr Clive Jones, dated 23 April 2015 and Professor Buzzard, dated 22 September 2016 and 20 October 2016.
111 After taking a history and reviewing the investigations referred to above, Mr Gardiner considered the plaintiff –
“… suffered a quite significant localised direct traumatic episode to his low back which may have caused localised injury to subcutaneous and fascial structures with the possibility of impact injury to the cutaneous nerves.”[112]
[112]Exhibit J, PCB 62
112 Mr Gardiner further stated the plaintiff suffered from –
“Mechanical low back pain without radiculopathy but some dysmetria and no radiological or clinical signs of nerve root compromise.”[113]
[113] Exhibit J, PCB 62
113 However, Mr Gardiner was not sure about the relationship with the work injury, in that he stated:
“… The controversial point relates to how this pain changed three months following the injury and has led to the current chronic low back syndrome. I am therefore uncertain as to the relationship between … [the plaintiff’s] current condition and the mechanism of injury of 8 December 2014.”[114]
[114]Exhibit J, PCB 63
114 The plaintiff’s solicitors also had him examined by pain physician and specialist anaesthetist, Dr Meena Mittal, for medico-legal purposes, who furnished a report dated 22 November 2018.[115] Dr Mittal took a consistent history, and lumbar spine examination revealed –
“… with markedly reduced lumbar spine extension at 0°. There was obvious left-sided paravertebral muscle spasm. There was increased tenderness on palpation of the left paravertebral spaces. There was tenderness in the left sacroiliac joint. Facet joint loading on the left hand side was positive.”[116]
[115]Exhibit K
[116]Exhibit K, PCB 97
115 The CT scan of 11 December 2014 and the MRI scan on 27 February 2016 were noted.
116 Dr Mittal considered the plaintiff presented with –
“… chronic low back pain after being involved in an accident at work. The nature of his injuries is consistent with the stated cause. The causes of his underlying low back pain are as follows:
1. Paravertebral muscle spasm/myofascial pain.
2. Possible facet joint pain.
3. Possible sacroiliac pain.
This has been compounded by the fact that his underlying condition has now become chronic. He also has a history of depression and anxiety, which does not lead to, but exacerbates his underlying symptoms.”[117]
[117]Exhibit K, PCB 98
117 As to his capacity for work, it was considered the plaintiff –
“… does not have a capacity for full-time unrestricted manual or pre-injury employment as a result of his work-related injury. His injuries have resulted in chronic low back pain of significant severity particularly on activity … I do not believe that … [the plaintiff] has the capacity to return to his pre-injury employment.”[118]
[118]Exhibit K, PCB 99
118 As to the identity of the injury, Dr Mittal considers the plaintiff –
“… has fairly specific causes to his underlying pain. This includes facet joint pain, possible sacroiliac joint pain, overlying myofascial pain and development of central sensitisation and chronic pain.”[119]
[119]Exhibit K, PCB 99
119 As to its permanency, Dr Mittal states:
“… I believe that at this stage there is a very low chance of complete recovery. I believe that the restrictions in relation to social, domestic and recreational employment activities are likely to be of a permanent nature. I do not believe that ... [the plaintiff] has the capacity to engage in any physically laborious work. In terms of being able to manage modified duties, ... [the plaintiff] has made an attempt to engage in modified duties and has found this difficult. The main reason being that he has ongoing severe uncontrolled pain with difficulty in adopting a certain posture for a prolonged period of time. As a result also of medications that he is currently on, poor sleep, ongoing exhaustion secondary to chronic pain, underlying depression and anxiety, l do not believe that he can engage in employment in any consistent and meaningful fashion. This is once again likely to continue into the foreseeable future.”[120]
[120]Exhibit K, PCB 99
120 Finally, as to the future, Dr Mittal states:
“I would like to mention that … [the plaintiff] initially suffered from acute low back pain. In certain number of cases, this can progress of chronic low back pain. Unfortunately, … [the plaintiff’s] pain at this stage is likely to continue into the foreseeable future.”[121]
[121]Exhibit K, PCB 100
121 Finally, the plaintiff was examined by Dr Joseph Slesenger, specialist occupational physician, for medico-legal purposes, by his solicitors on 16 April 2020.[122] Dr Slesenger took a relevant history and noted the current symptoms as follows:
“[The plaintiff] … advised of residual moderate to severe pain in the lower back that continues to radiate into both buttocks and both lateral thighs. He advised that through the pain management program, he has been educated to mobilise through the pain and whilst this has increased his function, it has also increased his lower back pain and radiating symptoms.”[123]
[122]Exhibit L
[123]Exhibit L, PCB 109
122 It was also noted the plaintiff completed a pain management program at Precision Health about three months earlier. He continued to be followed under the care of Dr McCallum, who continues to monitor him, and has advised that he may require a percutaneous interventional procedure.[124]
[124]Exhibit L, PCB 110
123 The plaintiff performs a daily exercise program, including a stretching program, and was awaiting follow-up under the care of a psychologist through the pain management program.[125]
[125]Exhibit L, PCB 111
124 On examination, there was tenderness over the upper lumbar spine and the paraspinal musculature and there was a reduction in range of movements.
125 Dr Slesenger diagnosed:
“o Contusion to the lumbar spine.
o Aggravation of degenerative disease of the lumbar spine.
o Chronic lower back pain with radiating features, but no confirmed evidence of radiculopathy.
• Psychological impairment, although this is outside my area of expertise.”[126]
[126]Exhibit L, PCB 118
126 Although Dr Slesenger thought the plaintiff would be fit for work with some restrictions, he noted:
“However, with regard to employment, I also note the variable and unpredictable nature of his symptoms and I anticipate that he is likely to have difficulty attending work consistently and reliably. At this stage, I do not anticipate him returning to work in a role for which he has suitable training and experience.”[127]
[127]Exhibit L, PCB 118
127 Although other doctors considered there was a light-work capacity, Dr Slesenger was of the view that the plaintiff is –
“… unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis.”[128]
[128]Exhibit L, PCB 118
128 The defendants had the plaintiff examined by a number of physicians.
129 Dr Mary Wyatt, occupational physician, reported on 21 March 2020.[129] Dr Wyatt took a relevant history, including the following:
“… [The plaintiff] said he had an initial deep burning pain in the centre of his low back and that settled over a few months. However, he then developed a separate pain, different in the site and nature of the pain, which was over his left low back and extending into his spine and buttocks.”[130]
[129]Exhibit 6
[130]Exhibit 6, DCB 105
130 Dr Wyatt records the consistent history thereafter, including the attendance at the pain management course in 2019. She records as follows:
“… In terms of what was helpful, he learnt about pacing, that rest was the enemy of back problems and he learnt about how to manage any flare-ups in his back pain. He learnt about the benefit of generally looking after his wellbeing with diet and socialising and learnt a series of relaxation techniques.”[131]
[131]Exhibit 6, DCB 105
131 As to the current status, the plaintiff described having soreness in the left side of the lower back extending from the buttock and up to the lumbar area and the left flank. His back felt stiff and sore first thing on getting out of bed. The back pain would typically flare up a few times a week, such as with repetitive movements, static posture and bending forward.[132] His current treatment consisted of the longstanding medications, plus walking for ten to fifteen minutes, doing squats with an exercise ball and doing partial sit ups and stretches.[133] On examination, Dr Wyatt found tenderness over the right paraspinal region, extending up to the upper lumbar area and down into the right buttock.[134]
[132]Exhibit 6, DCB 106
[133]Exhibit 6, DCB 106
[134]Exhibit 6, DCB 107
132 Dr Wyatt recorded the findings on the CT scan of the lumbar spine and the MRI scan of the lumbar spine referred to above, and under Assessment, noted:
“… [The plaintiff] advised persistent low back pain following an advised ratchet falling from height and hitting his low back while bent forward, over five years ago.
He has a complex psychosocial background, with an advised history of depression, for which he has been on longstanding antidepressants. He has a past history of heroin addiction.”[135]
[135]Exhibit 6, DCB 107
133 Dr Wyatt notes the discrepancies noted by various doctors as to exactly the weight of the object and the height from which it fell. She states:
“No clear information is available about exactly what fell and the height.”[136]
[136]Exhibit 6, DCB 108
134 Dr Wyatt states:
“I note the various diagnoses postulated, from facet joint dysfunction to sacroiliac joint dysfunction to a neuroma to chronic low back without radiculopathy. There is also reference to paravertebral muscle spasm or myofascial pain.”[137]
[137]Exhibit 6, DCB 108
135 Dr Wyatt’s diagnosis is described as follows:
“[The plaintiff’s] … problem is best characterised as chronic low back pain, accepting his advice he has persistent low back complaints.
While we like to think we are scientific and can identify specific causes of low back pain, unfortunately research tells us we are unable to identify exactly what the pain generator is in most cases of non-specific lumbar spine or mechanical or chronic low back pain.
I do not think one can identify whether …. [the plaintiff] has a facet joint problem, a muscular problem or non-specific low back pain.
Importantly, there are no clinical or radiological investigations to suggest radiculopathy.”[138]
[138]Exhibit 6, DCB 108
136 Importantly, Dr Wyatt stated:
“… I identified no particular non-organic or functional findings on examination at this consultation.”[139]
[139]Exhibit 6, DCB 109
137 Regarding his work capacity, Dr Wyatt states:
“… I consider he does have a substantive work capacity. I think prolonged awkward posture work, such as constant working below knee height in the forward bent position and repeated heavy lifting over 20-25kg, are best avoided and he should be able to change his posture intermittently.
…
… I note the opinions provided regarding his ability to do a sedentary role and only part-time hours.”[140]
[140]Exhibit 6, DCB 110
138 However, Dr Wyatt stated:
“… With an appropriate role, I consider … [the plaintiff] is fit to work full-time hours. I do not think there is any need for restriction in terms of hours of work.”[141]
[141]Exhibit 6, DCB 110
139 Finally, Dr Wyatt was of the view that it was –
“… very unlikely that … [the plaintiff’s] injury of 2014 continues to material[ly] contribute to his low back problem.
Low back complaints are common, as described above. One does not need a specific cause. It is entirely plausible that … [the plaintiff] had acute low back pain following the incident and that a level of anxiety and worry contributed to his advised significant limitations.
The natural history of such an episode would be expected to have gradual improvement over time. One would not expect this type of incident, as it has been variously described, to result in a long term and disabling back problem.”[142]
[142]Exhibit 6, DCB 111
140 The defendants also had the plaintiff examined by Associate Professor Graeme Brazenor, neurosurgeon, who reported on 18 May 2018 and 11 March 2020.[143] Suffice to say that Professor Brazenor considers it impossible that the mechanism of injury could produce the longstanding pain and disability claimed by the plaintiff, nor is he impressed by the opinions or qualifications of medico-legal examiners who have an opinion to the contrary. Professor Brazenor does note that the plaintiff has degenerative changes in the lumbar spine, which he regards as “age related”. Professor Brazenor does not proffer an opinion as to whether those degenerative changes could have been rendered symptomatic by the blow specifically, but I am prepared to infer, if he was asked the question, he would equally say it is unlikely, if not impossible.
[143]Exhibit 5
141 Finally, tendered in evidence by the plaintiff was the Certificate of Opinion of the Medical Panel dated 15 February 2017, with the Reasons attached.[144] Neither counsel submitted that the Panel, consisting of a rheumatologist and a neurologist, were not independent or otherwise incapable of giving the opinion that they expressed.
[144]Exhibit M
142 As to the mechanism of injury, the Panel recorded:
“The worker told the Panel he felt immediate pain from the blow of the heavier buckle component, with a laceration at the impact site but that he also sustained a ‘whiplash ricochet type blow’ from the hook end of the wound ratchet mechanism above the impact site which left its own mark. He said his left buttock and flank was bruised which took some weeks to resolve.
…
… the laceration did not require specific management beyond a local dressing. He told the Panel the impact deep ache from the buckle settled after 5 months but that a separate different pain at the site of the ‘hook whiplash injury’ which commenced some 4-5 weeks after the injury has persisted.”[145]
[145]Exhibit M, PCB 125-126
143 As to his current position, the plaintiff told the Panel he –
“… currently has a throbbing constant pain below his lower left ribs, para-spinal in [situ]. He described to the Panel constant discomfort 3/10 but with sharp ‘electricity’ like waves of pain occurring in spasms several times daily, which radiate towards the midline of more intense severity 8/10, which lasts seconds. He described less radiation to the buttocks. This pain, he said, was exacerbated by sitting and was better with movement and was accompanied by intermittent ‘pins and needles’ sensory change in the same distribution which could disturb his sleep ... .”[146]
[146]Exhibit M, PCB 126
144 On examination:
“Lumbar spinal movements were moderately restricted more so in extension, left sided rotation and left lateral flexion by left paraspinal pain. Site specific marked tenderness was consistently elicited 3cm from the midline and 5cm below a line drawn between the posterior superior iliac crests with muscular guarding. No unilateral muscular atrophy was measurable in the thigh or calf. Neurological assessment of the lower limbs was normal with intact reflexes, strength and sensation.”[147]
[147]Exhibit M, PCB 127
145 Investigations had revealed diffuse disc bulges at L2-3, L3-4 and L4-5 levels, and the Panel did not consider any additional diagnostic imaging necessary. It concluded that:
“The worker is suffering from lumbosacral spine dysfunction without radiculopathy related to the accepted soft-tissue injury lower back, abrasions / bruising lower back injury. The Panel considered the nature of the injury, the character of the pain and its later onset after the initial impact injury, the very consistently reproducible site specific point tenderness and felt this was likely due to a trauma induced neuroma. The Panel considered that the worker’s condition has stabilised.”[148]
[148]Exhibit M, PCB 127
146 The Panel conducted an assessment in accordance with the AMA Guides to the Evaluation of Permanent Impairment and thought that such permanent impairment resulted in a 5 per cent whole person impairment. Importantly, the Panel considered there was no pre-existing or unrelated injury due to the constitutional changes as demonstrated on medical imaging or from a pre-existing injury to the lumbar spine which was playing a part in the plaintiff’s current spine impairment.[149]
[149]Exhibit M, PCB 128
147 Importantly, the Panel noted the impairment assessment of the defendants’ physician, Professor Buzzard, to the effect the plaintiff had a 5 per cent whole person impairment, but in a subsequent report, considered there was a functional overlay rather than physical injury. Importantly, the Panel found no clinical signs of abnormal illness behaviour or of a functional overlay during its examination of the worker. The Panel assessed the accepted physical injury in accordance with s221 of the Act.[150]
[150]Exhibit M, PCB 128
Analysis
148 Prior to the subject injury, I find that the plaintiff had a longstanding heroin addiction which had been treated successfully for a number of years on a methadone program. There were probably psychological vulnerabilities on account of this treatment regime and because of his background.
149 Nonetheless, I find that the plaintiff engaged in heavy labouring work for the majority of his working life prior to the subject injury and since leaving school in Year 9.
150 I further find that the plaintiff was essentially a witness of truth, who did not attempt to mislead the Court with respect to his addiction and incarcerations in the past.
151 Following fairly vigorous examination, the plaintiff’s physical capacity to undertake alternative activities was brought into question.
152 I am satisfied also that the ongoing pain and disabilities felt by the plaintiff are essentially organic in nature and that any exacerbation in the underlying psychological condition is as a result of the pain caused organically and need not be “disentangled” from the physical consequences of the subject injury.[151]
[151]See Meadows v Lichmore Pty Ltd (supra) at paragraph [76]
153 Further, I am satisfied that the plaintiff has undergone all reasonable attempts at rehabilitation by undergoing the pain management program, together with the logistics course.
154 I also find that the consequences of the organic injury are permanent, in the sense that they are likely to exist into the foreseeable future.
Loss of earning capacity
155 In this regard, I note, as Ashley and Kaye JJA stated in Richter v Driscoll:[152]
“… [R]eturn to work in employment ... requires more than that a physical capacity to engage in a task or tasks.”
[152]Supra
156 The employment must be, as specified in the definition of “no current work capacity”, “suitable employment”. For their Honours, the definition of “suitable employment” –
“... plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise.”
157 Their Honours warned:
“… paragraphs (a)(ii), (iii) and (iv) would have no work to do.”[153]
[153]at paragraph [76]
158 Accordingly, the question whether a worker is able to return to work in suitable employment, according to their Honours –
“... specifically requires consideration of matters travelling beyond physical capacity to perform a task.”[154]
[154]at paragraph [77]
159 Accordingly, the construction which Ashley and Kaye JJA placed on the definitions of “no current work capacity” and “suitable employment” can be expressed as follows:
“... whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances – these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.”[155]
(Emphasis added.)
[155]at paragraph [95]
160 They further stated:
“The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in [Cardiff Corporation v Hall [1911] 1 KB 1009], where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.”[156]
[156]at paragraph [96]
161 Osborn JA agreed with Ashley and Kaye JJA in this regard. His Honour stated:
“The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. ...
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.”[157]
(Emphasis added.)
[157]at paragraphs [143]-[145]
Statutory definition
162 Section 5 of the Act, relevantly recites:
“Suitable employment, in relation to a worker, means employment in work for which the worker is currently suited –
(a) having regard to –
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the Certificate of Capacity supplied by the worker; and
(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v) any plan or document prepared as part of the return to work planning process; and
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b)regardless of whether –
(i)the work or the employment is available; and
(ii)the work or employment is of a type or nature that is generally available in the employment market.”
163 In my view, the limitations placed upon the plaintiff’s physical capacities referred to first by Dr Gardiner, which was virtually total incapacity, and otherwise the views of the other practitioners as to limited hours for restricted work activities, and also taking into account his age, education, skills and work experience, I do not believe, looking at the plaintiff “holistically”, that he would be able to work in employment as a settled member of the workforce on a full-time basis and certainly no more than the fifteen hours per week as postulated by Mr Clive Jones.
Disentanglement
164 As to the defendants’ submission that the physical injury has to be disentangled from any subsequent functional overlay, it can be accepted that in a situation where the physical injury can explain the persistence of symptoms on a permanent basis, and where those physical symptoms can meet the threshold laid down by the legislation, then a superimposed functional overlay does not operate to disentitle the plaintiff.[158]
[158]Meadows v Lichmore Pty Ltd (supra) and Jayatilake v Toyota Motor Corp Australia Limited (2008) 20 VR 605
165 For completeness, I am also satisfied that the clinical course outlined above represents a continuation of the original injury.
166 Accordingly, leave will be granted to the plaintiff to issue proceedings for loss of earning capacity.
167 In accordance with the principles laid down in Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[159] leave will also be granted to issue proceedings for pain and suffering damages.
[159][2009] VSCA 170
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