Korf v Collett (Aust) Pty Ltd
[2016] VCC 133
•25 February 2016
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03706
| FRANCOIS KORF | Plaintiff |
| v | |
| COLLETT (AUST) PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 8 February 2016 | |
DATE OF JUDGMENT: | 25 February 2016 | |
CASE MAY BE CITED AS: | Korf v Collett (Aust) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 133 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the lumbar spine – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh QC with Mr S Jurica | Nowicki Carbone Lawyers |
| For the Defendant | Mr P Scanlon QC with Ms F Ryan | Thomson Geer |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant on 2 April 2004 (“the said date”).
2 The application relates to a specific incident on the said date. It was amended at the commencement of the hearing to exclude a proposed “course of employment” claim against a related entity, Luv-A-Duck.[1]
[1]Transcript “T”1
3 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
4 The plaintiff brings this application primarily 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.”
5 The relevant body function is the lumbar spine.
6 By ss(38)(c) of the Act, 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, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
7 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
8 The plaintiff relied upon two affidavits and gave viva voce evidence. His wife, Anna Korf, swore an affidavit on 16 January 2016. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
9 The plaintiff’s is presently aged fifty-eight, having been born in South Africa in January 1958. He has lived in Australia with his wife since 2003.
10 The plaintiff completed Year 11. He is a qualified electrician. He also holds a Certificate IV in Training and Assessment, a Diploma of Business Management and an Advanced Diploma as a Project Manager.
11 Having left school, the plaintiff served in the army and also worked as an electrician and a project manager.
12 From January 2003, the plaintiff was employed by the defendant and/or Luv-A-Duck Pty Ltd (together referred to as “the defendant”). The same person owned both companies and the plaintiff’s employment changed from one to another from time to time. The defendant employed the plaintiff as a senior electrician in its business of poultry/duck production.
13 The plaintiff’s normal duties involved installation, alteration and repair of all electrical work. Those duties required frequent and/or stressful bending and twisting of his spine, squatting, kneeling, repeated and heavy lifting (lifting heavy cabling), as well as working in awkward or confined spaces. The work required full and free use of his back.
14 The plaintiff loved this role and had a passion for electrical work. The defendant was a good employer, the pay was excellent and the plaintiff enjoyed his workmates’ company and also the challenges of electrical work. The defendant allowed him to design his own machinery and the plaintiff believed he was at least partly responsible for significantly increasing production.[4]
[4]Confirmed in cross-examination at T13
15 On the said date, the plaintiff and a workmate were dragging heavy mains cables. As the plaintiff twisted a cable to check the location of a kink, his workmate dropped the cable, causing the plaintiff to take its full weight, jarring his back (“the incident”).
16 The plaintiff felt right leg pain immediately and thought he had pulled a leg muscle. He reported the incident but continued working. He experienced back pain shortly afterwards, which increased in severity and disturbed his sleep in the weeks following.
17 As far as he could remember, the plaintiff attended Nhill Hospital because of back pain about a month after the incident, before taking two weeks off work and then returning to full-time normal duties. He took painkillers to cope with back and right leg pain as he worked.
18 At some stage, the plaintiff also developed symptoms affecting his left leg. The defendant was aware the plaintiff had persisting back and leg problems, including pins and needles affecting his legs as he kept doing his normal work tasks.
19 The plaintiff suffered a number of aggravations of his back and leg condition while doing normal duties after the incident. These included working in a confined ceiling space for a couple of hours in 2008 and, in 2009, when he was required to dismantle a machine that needed repair.
20 As the plaintiff is a particularly stubborn person, he put up with his deteriorating back and leg conditions as he kept working for the defendant. He did not take more time off work.
21 The plaintiff left the defendant in early 2012 for reasons unrelated to his back and leg conditions and started working for CHS Group in Horsham (“CHS”) as a project manager/electrician.
22 The plaintiff did not agree with the decision-making of the defendant’s middle management. He confirmed he left the defendant’s employ for reasons completely unrelated to his injury. It is likely he would have kept going and worked on with the defendant, had he not had this disagreement.[5]
[5]T13
23 As of March 2015, the plaintiff was working at CHS as a project manager/electrician. He was earning about $20,000 a year less than he earned with the defendant; however, he also had the free use of a company car. His job then involved a lot of driving, but far less hands on electrical work than he did with the defendant, and he was able to avoid heavier physical tasks.
24 As a result of the incident and/or performing normal duties over his time with the defendant, following the incident, the plaintiff suffered permanent serious impairment or loss of body function, as well as injury to his legs.
25 Treatment has included physiotherapy, gym exercises, painkillers and anti-inflammatories.
26 The plaintiff has seen doctors, principally Dr Slabbert at Tristar Medical Group in Nhill and the Hamilton Medical Group partnership. He was referred to orthopaedic surgeon, Mr Mitchell in 2004.
27 In about late 2014, the plaintiff underwent a back scan at Horsham on referral from his general practitioner. The plaintiff believed it showed narrowing of the discs in his lower back.
28 As of March 2015, the plaintiff was taking Voltaren as required. He avoided medication as he did not like taking it at all for anything. He had to be extremely ill to take it. He bought a special bed and gym equipment for his back injury. He wanted to avoid surgery at all costs.
29 The plaintiff continued to suffer constant, variable low back pain, bending or twisting of his spine, walking long distances or over rough or uneven ground, exposing his back to jolting, jarring or vibration and kneeling and squatting. He continued to have symptoms affecting both legs, namely pain, pins and needles and numbness. These were intermittent and depended on the level of physical activity involving his back.
30 The back injury continued to disturb the plaintiff’s sleep. He was previously a sound sleeper, but since the incident, he had back pain frequently, waking him and keeping him awake. It was difficult to get comfortable because of back pain and discomfort. He could also be woken and kept awake by leg symptoms. He generally felt tired and lacking in energy, and usually had to force himself to continue activities. He was not like this before the incident.
31 Before that time, the plaintiff was always work focussed and determined to achieve high work standards. He loved hands on electrical work and was proud of his trade.
32 Pre injury, the plaintiff enjoyed jogging and was proud of his level of fitness. He enjoyed family relationships. Usual activities and interests included gardening, playing social cricket – having played club cricket in South Africa – social rowing and making items out of wrought iron and timber. He maintained the family home and assisted his wife with chores.
33 The back injury continued to have a major impact on the plaintiff’s lifestyle. He was unable to return to full-time unrestricted work as an electrician because of the state of his back and legs, and he suffered severe pain at night following a full day working “hands on.” He was frustrated at not being able to maintain work as a “hands on” electrician. He felt his back condition would increasingly restrict his work abilities and, as a result, he had completed a Train the Trainer course in Sydney with Upfront Communications (“the course”).
34 The plaintiff did the course as he felt that he might not be able to maintain this line of work and he had to have something to fall back on.[6] He did not do it to advance his employment prospects and doubted it had advanced them. It was an avenue that he could try and pursue in the later stage.[7]
[6]T20
[7]T21
35 The back injury affected most of the plaintiff’s other usual interests and activities, including his ability to play cricket, work in the garden, participate in rowing, and carrying out woodwork and wrought iron work.
36 The plaintiff avoided jogging, and his ability to do household tasks had been affected. He had lost much of his former fitness.
37 The plaintiff’s back injury affected his marital relationship, including his sexual relationship.
38 The plaintiff’s back and leg condition limited his ability to play with and look after his two grandchildren. His injury affected some personal chores, in particular putting on shoes and socks.
39 The plaintiff thought he had received weekly payments for two weeks after the incident and had not taken any more time off work since then. WorkCover also paid for treatment for his back.
40 The plaintiff first received legal advice about his injury when seeing a solicitor at Nowicki Carbone in early 2014. Prior thereto, he was ignorant of his right to make a common law claim in respect of the back injury, including the six-year limitation period.
41 Soon after seeing the solicitor, the plaintiff believed a claim for lump sum compensation in respect of his back was lodged. The plaintiff believed WorkCover accepted liability for the back injury and he subsequently received nearly $10,000, pursuant to s98C.
42 The plaintiff had suffered other health issues over the years; however, he had not experienced similar back problems prior to the incident.
43 In 2014, the plaintiff was admitted to Nhill Hospital for shortness of breath. He was an inpatient for five days. It is not his practice to go to a hospital if he has a problem and he would only go there if he had something significant.
44 The plaintiff disagreed he had discharged himself from hospital because the staff were incompetent, they just did not tell him what was wrong.[8]
[8]T8
45 The plaintiff agreed at that time, he was having headaches with throbbing pain of seven to about eight out of ten. The pain was on the side of his neck and round to the side of his head and could last for days.
46 The plaintiff was then taking Panadol and Nurofen to take the edge off the pain. He had lost his appetite and his taste was affected. He wheezed on exertion. He had some dizziness and a feeling of being lightheaded and felt he might become unconscious for as long as five to ten minutes. The dizzy spells had been going for a number of years and those, together with the headaches, were very severe.[9]
[9]T9
47 The plaintiff swore a further affidavit on 16 December 2015.
Current symptoms and treatment
48 The plaintiff has constant, variable back pain of a needle type. He still gets intermittent symptoms going down both legs. It is usually aggravated by physical activity and work. Approximately two or three times a week he gets symptoms going down both legs.
49 The plaintiff set up a home gym which he uses two or three times a week, doing stretches and core exercises for his lower back.
50 The plaintiff still tries to avoid taking medication; however, when his back is really painful, he takes Voltaren as needed. He also takes Panadol as needed when his back pain is worse during the day. At times, he also applies Voltaren gel to his lower back.
51 The plaintiff rarely takes medication. He takes it to “try and calm pain”. His present medication varies – two tablets, two or three times a week of Voltaren or Panadol.[10]
[10]T7
52 The plaintiff denied he did not take medication regularly because his back was not severe.[11] Backache is extreme more than once or twice a week and he then takes medication. His back has to be extremely painful before he will take medication.[12]
[11]T10
[12]T11
53 The plaintiff does not have headaches as much as he used to but he does not take medication for them.[13]
[13]T10
Current work
54 For about the last five or six months, the plaintiff has been “on the tools” and doing more physical work; however, he pays for it later at home with more back pain. He is presently torn between loving the job and giving it away because of back pain.
55 Since the injury, the plaintiff now struggles to stay focussed at work. He is not sure whether it is because he is tired from not getting much sleep or because of the pain.
56 Initially, the plaintiff’s job at CHS was less “hands on.” That is now not the case. Probably some of the work now was as hands on as when he worked for the defendant. He did not go to CHS because it was less hands on, he went for a career move. He did not see it as a promotion and it was not better money. He did get a car however it probably would not equal what he was previously earning.[14]
[14]T12
57 In the last working month, the plaintiff has done more physical work than he did with the defendant. He is struggling but he is maintaining that employment.[15]
[15]T13
58 The plaintiff is forcing himself through work and there are sections of the work that he is not able to do. Whilst it is possible he is now doing as much “hands on” work as he did with the defendant, he is still frustrated at work. He is doing “hands on” work as an electrician but there are certain things he physically cannot do. He is doing about the same amount of physical work as he performed at Luv-A-Duck.[16]
[16]T15
59 The work became more hands on at CHS because as an electrical contracting company, at times the workload changes and the type of projects change. CHS wants the plaintiff’s specific skills because he is good at his job and he increased production with the defendant. It was possible CHS was really utilising the plaintiff’s skills and his brilliance in the field. If possible, the plaintiff would continue working there because clearly CHS loved him and he liked it.[17]
[17]T23
60 In re-examination, the plaintiff confirmed there was more “hands on” work probably in the last five months. This had occurred because there had been a shift in the workload to the company and it needed expertise on the ground. It was something he just had to do and he was struggling with hands on work.
61 The plaintiff took Voltaren at night because he struggled during the day and the drive home was probably a lot worse.[18]
[18]T23
62 After a day’s work, the plaintiff ends up in severe pain just sitting on the couch. He does not have a choice about the hands on work, it is what he loves. It is probably now the first time in his life when he is ready to walk away from work.
63 The plaintiff was unable to identify any suitable positions for him at Horsham. Any work he could do would be closer to a bigger centre. At this stage, he could not think of any specific job he would be able to do in Ballarat.[19]
[19]T24
64 The plaintiff’s frustration is possibly caused by the passion he has for his trade and now what he is physically unable to do because of his pain. He is starting to back away from certain tasks. “That is not him” and he “does not do that.”[20]
[20]T24
65 Pre-injury, the plaintiff was really fit and loved playing sport. He jogged a couple of times a week, about 2.5 kilometres at a time. Since the injury, the plaintiff has found it difficult doing any running because of his back pain.
66 When the plaintiff came to Australia, he was able to play some cricket, but after the injury, he found it difficult playing any cricket with his back pain.
67 The plaintiff had played one game in the season prior to his injury. He was spotted practising in the nets, and asked to play a game. He was intending to practise bowling to try to get back into cricket. Eventually he would have made himself known to the Club. The plaintiff does not have a passion for cricket, he just loves sport generally.[21]
[21]T16
68 The plaintiff started playing cricket around his early twenties and was playing up until the time he came to Australia. He then started with the defendant straight away and was very busy with work. He had to be not less than 10 minutes away from the production plant because he was on call. He was intending to play cricket and practising to get ready for the next season.[22]
[22]T25
69 Before the injury, the plaintiff was doing a bit of rowing with his family in a little boat about once a month. Post incident, he has tried it a few times but it makes his back pain worse.
70 The plaintiff explained “rowing” was getting an inflatable boat and then driving to a lake for a bit of rowing. He had tried since his injury and could not go rowing once a month as he did previously.[23]
[23]T17
71 The plaintiff is not fit enough to inflate the boat with a hand pump. He cannot bend. At work he can avoid certain tasks. He has to do his work. He does not have to go out in the boat.[24]
[24]T20
72 The plaintiff has not taken the boat out over the last twelve months because it is not worth the pain he experiences afterwards.[25]
[25]T25
73 If the plaintiff had not had the injury he would probably still be involved in playing social squash but not at a club level.
74 Pre injury, the plaintiff used to play a social game of squash with friends about once a month or so. Since the injury, he has found it difficult playing any squash and he hardly does any sporting activities because of low back pain.
75 Pre injury, the plaintiff had not actually played squash in Australia. It was his plan to play and he had made enquiries. He had not played initially because of his workload.[26]
[26]T17
76 Squash was not the plaintiff’s first passion. He enjoyed playing any sport, particularly anything to do with a ball, but work was his first passion. He would not describe himself as a passionate sportsman.[27]
[27]T18
77 Pre injury, the plaintiff enjoyed making things out of wood and timber, like furniture and things for the garden. This was a full-time hobby, which he used to do just about every weekend. He still tries to do a little bit, but nowhere near what he would like to do, because of his back pain.
78 Pre injury, the plaintiff did all the home maintenance. He physically built the much of the house himself and he was a handyman around the house. Post injury, he still does a little home maintenance, but it takes him a lot longer and he struggles with his back pain.
79 Pre injury, the plaintiff helped out his wife with household chores, like cleaning, washing dishes and cooking. Post injury, he has not helped her much in this regard because of his back pain.
80 Pre injury, the plaintiff loved gardening and most weekends he was in the garden. As the house was brand new, he was doing a lot of landscaping and tending to the garden. Post injury, he has tried to avoid doing the garden because of his back pain, but he still does it occasionally.
81 The plaintiff would have time to do the gardening but he does not do it. He does not potter much and does it when it has to be done.[28]
[28]T19
82 The plaintiff agreed pottering in the garden or a little bit of home maintenance was not harder than going to work. Cleaning and cooking was harder after a day’s work and at the weekend, he still tried to do a little but did not do as much housework as he used to.[29]
[29]T20
83 Since the injury, the plaintiff’s sex life has reduced because of back pain. At times, his legs also cramp up and grab.
84 The plaintiff did not have any grandchildren at the time of the incident. However, he is now not able to play with them as he would like. Playing with them and picking them up is difficult because of his back pain. They are presently aged about four and a half.
85 The plaintiff has put on about 5 or 6 kilograms, as he is not active enough. Now, he tries to avoid shoes with laces and tries to wear slip-ons as it is easier with his back. He finds it more difficult washing his feet and legs in the shower because of his back pain.
86 After about half an hour driving, the plaintiff feels his back pain gets worse. He has to drive an hour from home to work and back every day. The drive aggravates his back pain, especially after a day’s work. Sometimes driving home after work, he gets lots of leg cramps. He travels a lot in the car with his work and does struggle more with his back. Depending on the pain, sometimes he pushes through and sometimes he has to stop and take a break.
87 The plaintiff agreed he had driven to Melbourne and back to see Dr Elder, driving nine hours in one day. His wife made him stop and get out. She did not do any of the driving.[30]
[30]T22 – Dr Elder reported the plaintiff flew to this appointment as he was unable to drive.
Lay evidence
88 The plaintiff’s wife, Anna, swore an affidavit on 29 January 2016. They have been married for thirty five years.
89 The plaintiff is a very stubborn and proud person and she sees him struggle with back pain and he complains to her about it most days. However, he continues to work so he can make a living and do his best for the family.
90 The plaintiff has advised her he does not like taking drugs, although she sees him take Voltaren and Panadol from time to time.
91 Most of the time when the plaintiff is home, he is on the couch, either lying or sitting down, which was not the case pre injury when he was looking for something to do all the time. Most of the time he would keep himself busy.
92 The plaintiff has difficulty sleeping and that wakes her up. For a while, she has noticed while he is driving during the day, he struggles to keep his eyes open and he tells her he is feeling very tired, which she believes is because of his restless sleep.
93 Pre injury, the plaintiff used to be very active, playing cricket and other ball sports. He went fishing a lot, and often went for a run. He was involved in community work and generally liked being outside. However, since his injury, he did not do those activities much and, when he did, she saw him pay for it afterwards, not being able to sleep as well that night.
94 After a lot of driving, she can see the plaintiff suffering with more back pain and he has told her of having to stop the car because of cramps in his legs.
95 Now, when they are in the car, she and the plaintiff take a lot more breaks to help relieve his back pain, especially on longer trips.
96 There has been about an 80 per cent decrease in sexual activity since the injury. She believes it is due to the plaintiff’s back pain. He also tells her that sex makes his back pain worse.
97 The plaintiff is a proud grandparent, but he finds it difficult playing with and picking up his grandchildren because of his back pain.
98 Before the injury, the plaintiff used to be in the shed building, working on wood and iron most weekends. Now, he does not do that very often. Pre injury, he did a lot of house maintenance, but has not done very much since.
99 Pre injury, the plaintiff used to help out with the housework, but has not helped out much since.
100 Before the injury, the plaintiff did a lot of gardening on most weekends, but does much less now. Since the injury, he finds it harder to put on his shoes and socks because of his back pain.
101 The plaintiff has advised her that his job is more physical lately. She notices when he comes home after work he is suffering more back and leg pain.
102 Since the injury, the plaintiff does not seem as happy as he used to be. She often talks to him about this and he tells her he struggles with his back pain, especially after a day’s work.
Treaters
103 In May 2004, Dr Slabbert referred the plaintiff to Mr Mitchell, orthopaedic surgeon.
104 On 15 June 2004, Dr Slabbert reported to Cambridg Insurance, advising that the plaintiff had no capacity for lifting heavy objects, was not able to work if he had to bend or stand on his knees, and was not able to do activities which put any strain on his low back.
105 Dr Slabbert noted that the plaintiff’s injury was caused by pulling electrical cords and was aggravated by working in a bended position on the ceiling.
106 Dr Slabbert advised that the plaintiff’s further duties would depend on the Mr Mitchell’s recommendations. Dr Slabbert then thought the plaintiff had a partial incapacity.
107 In a report of July 2014, Dr Slabbert noted the plaintiff’s injury and subsequent treatment. He thought the plaintiff would be restricted in doing certain work activities that increased the strain on his lower back, like lifting or working with his back in a flexed position for a prolonged period of time. He considered that that situation would be indefinite.
108 Dr Slabbert thought the plaintiff was able to work full time in his pre-employment capacity but would be restricted in doing certain activities. The plaintiff could not do any lifting, work in confined spaces up on ceilings, or bend forward for prolonged periods of time. The same restrictions would apply to domestic and recreational activities and they would be permanent. If he did things that strained his lower back, the plaintiff would aggravate the disc herniation and may require surgery.
109 Dr Rasul from Tristar Medical Group in Nhill reported in August 2014. He noted the plaintiff had suffered an L5-S1 disc bulge at the time of injury with impingement on the S1 nerve root on the right. The plaintiff’s work had involved pulling cables and afterwards working in a bent position on the ceiling.
110 Dr Rasul noted physiotherapy was undertaken and for future treatment, physiotherapy was an option as the plaintiff had refused surgery. He thought the plaintiff was not able to continue the job according to his skills and that would impact on his earning capacity.
111 Given the presence of the disc bulge, these restrictions were likely to continue and Dr Rasul thought the plaintiff could not continue his pre-injury employment duties.
112 Dr Rasul considered the prognosis was not good as there were osteoarthritic changes developing around the bulge and further impinging the nerve.
113 In his most recent report of January 2016, Dr Rasul confirmed these views.
114 Dr Rasul noted the plaintiff continued in the same profession. He was having difficulty going on at the same pace. He continued to work but that interfered with his daily routine at night. Requiring more rest and analgesia kept the plaintiff from spending normal family time. This situation was likely to continue indefinitely.
115 Dr Rasul thought the plaintiff’s current capacity for work had definitely reduced but he was pushing through, as he did not have any income source. He considered the plaintiff should have modified duties and reduced hours at work to cope with his back problem. Further, the plaintiff’s condition was presently restricting his social, domestic and recreational activities and would do so permanently.
116 Dr Rasul thought the prognosis was good overall if the plaintiff could have the time and resources to attend to his back problem.
117 Mr Mitchell, orthopaedic surgeon, wrote to Dr Slabbert in May 2004.
118 Mr Mitchell then advised that he had caught up with the plaintiff, who he felt was improving enough so that surgery would be avoided. The plaintiff then felt his symptoms were settling enough that he did not even want a caudal injection.
119 The plaintiff was not then taking anti-inflammatory tablets, although Mr Mitchell thought they would be of reasonable value and prescribed Voltaren. He was to see the plaintiff in six weeks.
120 An absent right ankle jerk was noted on the first examination.
121 On 25 June 2004, Mr Mitchell was pleased to report the plaintiff continued to improve and would not require surgery. The ankle jerk was still absent but the plaintiff’s pain had settled even further.
122 Apart from being a bit careful with his back, Mr Mitchell did not feel the plaintiff needed any real restrictions anymore. He expected, from a sciatic point of view, the plaintiff did not need to come back. The plaintiff was very happy with this information.
123 By letter of 23 September 2014, Mr Mitchell enclosed these two 2004 letters. His expectation was the plaintiff’s disability would have been short term and his long-term earning capacity unaffected by it. He would place no long-term restrictions, noting he had not seen the plaintiff for ten years.
124 Mr Mitchell considered the plaintiff’s general prognosis was good and his expectation would be for the plaintiff to have a nearly imperceptible weakness in his calf muscle.
Investigations
125 Dr Slabbert organised a CT scan of the plaintiff’s lumbosacral spine on 10 May 2004. It was reported there was a large disc protrusion at L5-S1 displacing the thecal sac and right S1 nerve root.
126 Dr Rasul organised a CT scan of the plaintiff’s lumbar spine on 1 August 2014.
127 It was reported there were moderate osteoarthritic changes of the lower lumbar facet joints and diffuse disc bulge demonstrated. The changes had resulted in mild to moderate osteoarthritic neural foraminal narrowing at L3-4 and L4-5 on the left and L5-S1 level bilaterally, with at least mild compression on the left L3, L4, L5 and right L5 nerve root.
128 There was right paracentric small disc/osteophyte complex arising in the L5‑S1 disc space which had put mild compression on the right descending S1 nerve root also. There was mild central canal narrowing suggested at L3-4 and, to a lesser extent, L4-5.
129 Compared to the previous CT scan of 2008, the internal nerve compressions at neuroforaminal levels and mild central canal narrowings were noted.
Medico-legal
130 The plaintiff was examined by Mr Huffam, orthopaedic surgeon, in January 2016.
131 Post the initial injury, the plaintiff stated he continued to have back pain and right leg pain but he had been able to continue at work, although with some difficulty, without missing further time. There was exacerbation of pain in 2008 after working in a cramped workspace, but the plaintiff required no time off work. There was a further aggravation in 2010 when he had to dismantle broken down machines.
132 The plaintiff continued to have back and right-sided sciatica but continued working for the same employer until about three and a half years ago when he started working for CH Group Electrical, as the project manager. He still had to do quite a lot of hands on work, including bending over in tight spaces, and quite a lot of car driving. He was struggling with low back pain, pain in the right leg, cramping in the right leg and, less commonly, cramping in the left.
133 The plaintiff was having no physical treatment. He took Voltaren or Nurofen but not every day, as Voltaren upset his stomach.
134 On examination, the plaintiff was tender over the spine of the L5 vertebrae and to the right thereof. Movements were limited by pain and muscle spasm to about two thirds of normal range. There was one-centimetre of wasting of the right calf. Straight leg raising was painful and limited and there appeared to be some diminution in skin sensation over the outer side of the right foot and ankle over the distribution of the first sacral nerve root and over the right sacral area.
135 Mr Huffam noted the plaintiff had continued to suffer from low back and right-sided sciatica since the initial injury with further aggravations.
136 The plaintiff was noted to have quite marked limitation of movement of the back, with pain and muscle spasm, and physical signs demonstrated a radiculopathy of the first sacral nerve root on the right, calf wasting, loss of right ankle reflex and diminution of skin sensation.
137 Mr Huffam noted the August 2014 CT scan now showed further degenerative changes in the intervertebral discs and facet joints at other levels in addition to further degeneration at L5-S1.
138 Mr Huffam thought the plaintiff’s condition was completely compatible with a significant injury to L5 in the incident with the further aggravations.
139 Mr Huffam noted the plaintiff was continuing with work as an electrician but with difficulty. More of his work was administrative because he was working as a project manager but he still had to do lots of hands on bending and working in confined spaces and quite a lot of car driving which irritated his back.
140 Mr Huffam thought it doubtful whether the plaintiff would be able to continue with this type of work until the common retiring age of sixty five.
141 Mr Huffam considered the initial injury would appear to have been the most significant and there had probably been aggravation by continuing manual work.
142 Mr Huffam thought the plaintiff could be expected to continue to suffer from low back pain, limitation of movement and sciatic pain down his leg – his right greater than left. He considered it quite a strong possibility that the plaintiff would not be able to tolerate work requiring manual activities or prolonged car driving indefinitely and may have to retire from his work prematurely.
Claim documents
143 The plaintiff lodged a Claim for Compensation dated 13 May 2004 in which he set out he suffered injury on the said date pulling an electric cable. He did not report his injury because he did not feel it at the time.
Defendant’s medico-legal
144 Dr Elder, consultant specialist in occupational and environmental medicine, saw the plaintiff on 1 September 2014.
145 The plaintiff then complained of continuing symptoms of pain in the low back. The pain used to radiate down into the right leg but now occasionally into the left. His toes cramped and his heels felt weird when walking. The plaintiff gave an unusual description of an area of contracture in the sole of his foot.
146 The plaintiff advised Dr Elder he bought over-the-counter Voltaren which he took when required.
147 On examination, there was decreased range of motion which was asymmetric. Reinforcement was needed to elicit the plaintiff’s reflexes. Dr Elder noted the contracted area in the sole of the plaintiff’s foot.
148 In summary, Dr Elder thought the plaintiff had ongoing mechanical back pain with no clinical evidence of radiculopathy relevant to the original injury. He thought the symptomatology had not completely resolved so it was not appropriate to make an apportionment.
Resignation letter
149 By letter dated 21 March 2012, the plaintiff resigned after having worked just over nine years with the defendant. He thanked the defendant for its support and hoped he had made a meaningful contribution.
150 The plaintiff advised that the defendant knew his feeling about it and doubted that would ever change. Luv-A-Duck would always have a special meaning to him. He noted it was unfortunate to part ways but at that stage, he did not see an opportunity for further advancement of his career. He gave notice that his last working day was to be 30 April 2012.
Overview
151 There is no dispute the plaintiff suffered a compensable injury to his lower back in the incident.
152 The initial radiology of 10 May 2004 showed a large disc protrusion at L5-S1, displacing the thecal sac and the right S1 nerve root.
153 The defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor, such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.” [31]
[31]Ansett Australia Ltd v Taylor [2006] VSCA 171
Credit
154 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.” [32]
[32]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [12]
155 I found the plaintiff to be a truthful witness. There was no suggestion to the contrary by counsel for the defendant.
156 There was no surveillance film. No doctor considered that the plaintiff exaggerated or embellished his condition on examination.
157 It was submitted the plaintiff was a stoic.[33] As Buchanan JA stated Haden Engineering v McKinnon[34] the plaintiff’s stoicism cannot hide the fact that pain is a major component in his life.
[33]T38
[34](supra) at paragraph [47]
158 Counsel for the defendant questioned this description submitting the plaintiff’s stoicism should be tested away from the injury at work and in light of his hospital attendance in April 2014.[35]
[35]T28
159 In my view, the plaintiff is not a particular stoic. For the reasons discussed below, I am not satisfied he suffers pain at a significant level that interferes with his ability to work and engage in other activities.
160 The issue in this application is one of range. Counsel for the defendant submitted it was very much in the low range of cases and did not meet the statutory test.[36] It was submitted in the range of cases, it fell significantly short.[37]
[36]T5
[37]T32
161 Reliance was placed on what the plaintiff had retained, particularly remaining in full-time employment.
162 In Dwyer v Calco Timbers Pty Ltd (No 2), Ashley JA stated:
“… in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.” [38]
[38](Supra) at paragraph [27]
Pain
163 As Maxwell P said in Haden Engineering v McKinnon,[39] the experience of pain will be measured, inter alia, by what the plaintiff says about his pain to doctors and the Court.
[39](Supra) at paragraph [11]
164 The plaintiff described constant, variable back pain of a needle type. He still gets intermittent symptoms going down both legs, usually aggravated by physical activity and work. About two or three times a week he gets symptoms going down both legs.
165 Whilst I accept the plaintiff has had longstanding back pain, I do not accept this is a situation where the plaintiff suffers chronic and often severe pain as counsel for the plaintiff submitted.[40]
[40]T38
Treatment
166 It was conceded that to say the plaintiff had very little treatment overstated the situation. He self manages with a gym program at home to try to keep his core strength. He uses a spa and Voltaren and Panadol. Ultimately, it was submitted he is the quintessential stoic.[41]
[41]T4
167 The plaintiff takes very little pain killing medication and does so only when the pain is particularly severe.
168 This was said to be evidence of his stoicism,[42] however counsel for the defendant submitted this level of medication intake was indicative of back pain that was not particularly significant.[43]
[42]T34
[43]T29
169 On the evidence as a whole, I accept the latter is the likely situation.
170 The only specialist referral was to Mr Mitchell in 2004. He then prognosticated in 2004 that there should not be many problems, and non-operative management seemed to be successful. He placed no long-term restrictions and then thought the prognosis was good.
171 No re-examination was arranged with Mr Mitchell. He simply provided copies of his 2004 correspondence and confirmed non operative management seemed to have been successful. He placed no long term restrictions when he last saw the plaintiff. His prognosis was good and Mr Mitchell’s expectation was that the plaintiff would have a nearly imperceptible weakness in his calf muscle.
172 There has been no further specialist referral since 2004. The plaintiff has not attended medical practitioners with any frequency complaining of back pain.
173 Whilst the early view was there would be a good prognosis, counsel for the plaintiff submitted Mr Huffam’s recent finding shows this has not been the case.[44]
[44]T3
174 However, whilst the plaintiff claims increased symptoms with heavier work in the last 5 months, there are no attendances on the general practitioner or request for stronger medication in that time.
Work
175 Counsel for the plaintiff submitted there was support for the proposition that the plaintiff is struggling with his employment and he is really wondering whether he would be able to continue work or have to give it up.[45]
[45]T34
176 In mid 2004, Dr Slabbert noted restrictions in doing certain activities and the possibility of surgery and the difficulty of going on at the same pace and needing more rest and analgesia.[46] Whilst the plaintiff did not attend Dr Slabbert for treatment of his back condition, it was submitted the general practitioner knew the patient well.[47]
[46]T33
[47]T33
177 Counsel for the plaintiff relied on Mr Huffam’s view that there was a strong possibility the plaintiff would not be able to tolerate work requiring manual activities or prolonged car driving indefinitely and he may have to retire from work prematurely. [48]
[48]T35
178 Counsel for the defendant relied on the fact that the plaintiff was able to work post injury for eight years with the defendant, performing his normal heavy duties. He left in 2012 for reasons unconnected with his back condition.
179 Whilst the plaintiff’s affidavit suggested he was doing less physical work in a supervisory role at CHS, it became apparent in cross-examination that in the last five months or so, he has been doing as much physical work as he did in the past with the defendant.[49]
[49]T26
180 Although this is the case, there is no suggestion of any attendances at medical practitioners necessitated by this change, or the need for stronger medication or of the plaintiff requiring any time off work.[50]
[50]T26
181 Whilst the plaintiff claims to be frustrated because of his inability to do “hands on” work, he continues to do work of this nature full time. CHS wants his specific skills and he agreed it is possible CHS is utilising the plaintiff’s skills and brilliance in the field.”[51]
[51]T23
182 There is no suggestion the plaintiff’s present position is in any jeopardy. To the contrary, he likes working for CHS and the company loves him. Further he has increased its production.[52]
[52]T23
183 Whilst Mr Huffam is supportive of the plaintiff’s claim in terms of work consequences, his opinion is based on a history of the plaintiff working as a project manager with quite a lot of ‘hands on’ work and most of his work being administrative, whereas for the last five months, the plaintiff has been doing exactly the type of heavy work he undertook whilst with the defendant without the need to take time off work or seek any medical treatment.[53]
[53]T30
184 Further, Mr Huffam did not consider it likely that the plaintiff would have to cease work prematurely.
185 Dr Slabbert’s report is now nearly two years old, therefore she does not comment on the plaintiff’s current work capacity, in particular the heavier work he has been undertaking for the last five months.
186 In my view, the limited medical evidence available does not support there being any significant interference with the plaintiff’s present working capacity as a result of his back condition.
Other activities
187 Whilst he can work, counsel for the plaintiff submitted this comes at a cost. It creates problems for him enjoying his domestic and recreational activities.[54]
[54]T33
188 It was submitted the plaintiff’s back pain interfered with a number of his other activities as described in his affidavits. Taken together, it was submitted they easily satisfied the statutory test.[55]
[55]T39
189 These activities include sport (cricket, squash and rowing), home maintenance, gardening and housework.
190 The plaintiff’s wife’s affidavit confirming these consequences was not challenged.
191 In my view, however, the consequences the plaintiff described are not serious.
192 This is not a case where the plaintiff was a particularly active sportsman pre injury.[56]
[56]T28
193 At the time of his injury, the plaintiff had yet to play squash in Australia. He had only played one game of cricket. His rowing activity was confined to going out in a small inflatable boat once per month.
194 I find it difficult to accept with his ability to undertake his present work regime, the plaintiff would have difficulty using a foot pump to blow up an inflatable boat as he claimed.[57]
[57]T28
195 I accept the plaintiff’s evidence about inability to do home maintenance and handyman tasks was not challenged and supported by his wife, but these are not consequences that I consider serious for the plaintiff.
196 Although on a lesser scale than pre injury, the plaintiff still works in the garden.[58]
[58]T27
197 The plaintiff was able to drive the nine hours in the day he saw Dr Elder in Melbourne.[59]
[59]T29
198 Whilst I accept the plaintiff does have some pain and restrictions, I am not satisfied that the consequences of his lower back impairment, viewed a whole meet the high statutory threshold.
199 Accordingly, the plaintiff’s application is dismissed.
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