Krstic v Armstrong World Industries (Aust) Pty Ltd
[2016] VCC 658
•25 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02859
| ALEKSANDAR KRSTIC | Plaintiff |
| v | |
| ARMSTRONG WORLD INDUSTRIES (AUST) PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 17 and 18 May 2016 | |
DATE OF JUDGMENT: | 25 May 2016 | |
CASE MAY BE CITED AS: | Krstic v Armstrong World Industries (Aust) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 658 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Application to commence common law proceedings for pain and suffering damages pursuant to s134AB of the Accident Compensation Act 1985 – injury to lumbar spine – issue as to whether any impairment has given rise to serious pain and suffering consequences
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering flowing from his lower back injury arising out of, or in the course of, or due to the nature of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S A Smith | Zaparas Lawyers |
| For the Defendant | Mr P A Scanlon QC with Mr G A Worth | Russell Kennedy Solicitors |
HER HONOUR:
1 The plaintiff, Aleksandar Krstic, applies pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”), for leave to commence proceedings to recover damages for pain and suffering relating to an injury to his spine, in particular, his lumbar spine.
2 Although the plaintiff’s application initially also sought leave to commence proceedings to recover damages for economic loss consequences for impairment to his lumbar spine, this limb of the plaintiff’s application was abandoned on the second day of the hearing. Accordingly, the plaintiff alleges that, over the course of his employment with the defendant between 2005 and 2013, he suffered an injury to his lumbar spine by reason of repetitive lifting and that this injury has given rise to a permanent impairment which satisfies paragraph (a) of the definition of “serious injury” in s134AB(37) of the Act. It is contended that the impairment has consequences by way of pain and suffering which are “serious”.
3 In support of his application, the plaintiff swore two affidavits on 28 October 2014 (“the plaintiff’s first affidavit”) and 13 April 2016 (“the plaintiff’s second affidavit”), respectively, and, also, gave oral evidence. He relied upon reports from his treating general practitioner, Dr Chan, who also gave oral evidence, together with an affidavit by his brother-in-law, Ranko Tomic, sworn on 12 April 2016, and a number of other medical reports and documents which were tendered into evidence.
4 It is not in dispute that the plaintiff suffered an injury to his lumbar spine in the course of his employment with the defendant. Indeed, the defendant concedes that it accepted liability for the plaintiff’s back injury and paid an impairment benefit to him pursuant to s98C of the Act. The dispute between the parties is whether the plaintiff suffers pain and suffering consequences of the impairment to his back which meet the test of “serious injury” as set out in s134AB(38)(c) of the Act. That test is whether the pain and suffering consequences of any impairment or loss of a body function, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being “more than significant or marked”, and as being “at least very considerable”.
5 The defendant’s contention is that the plaintiff is not a witness of truth by reason of the following: He had not revealed to any of his treating medical practitioners or physiotherapist or any medico-legal examiner, prior to a case conference held on 16 February 2016, that he had been engaged in painting work for his brother-in-law’s company since late 2014. Only after it was revealed at that conference that there was surveillance film of the plaintiff undertaking such work on 30 and 31 March 2015, did the plaintiff subsequently reveal to his treaters and subsequent medico-legal examiners that, since about December 2014, he had been doing unpaid work for his brother-in-law.
6 The plaintiff claimed that, as his brother-in-law and his sister had been paying about $550 per week towards his mortgage, something which he found embarrassing, he volunteered to do some work for his brother-in-law out of gratitude. This information appears in the plaintiff’s second affidavit, in which he stated that in some weeks he had worked on three or four days, but in other weeks had only worked on one day or not at all. He stated that he had mainly undertaken fairly easy tasks, such as picking up supplies or touching-up skirting boards or window and door frames. He claims that he did not have too much trouble when reaching overhead, but struggled with repeated bending, and avoided lifting where possible. Also, that he was able to work at his own pace and take breaks whenever he needed.[1]
[1]Paragraphs 12, 13 and 14 of the plaintiff’s second affidavit
7 After the plaintiff’s treaters or other medico-legal examiners either saw the contents of the report by the surveillance operator or the actual surveillance film itself, they revised their respective views. They subsequently assessed the plaintiff’s work capacity to be greater than they had done previously, whether those assessments had been that he had no work capacity or some light work capacity. Upon viewing the film in the course of the trial, and reading the revised opinions concerning the plaintiff’s work capacity, I expressed my view in open court that this material did not inspire optimism for the success of the plaintiff’s loss of earning capacity component of his claim, which, as I have previously mentioned, was subsequently abandoned.
8 In short, the defendant’s case is that the plaintiff has deliberately misled both his treaters and medico-legal examiners by failing to reveal to them the work that he was performing as a painter for his brother-in-law. The defendant submitted that the $550 per week being paid to him by his sister was really payment for such work, which was being received at the same time as he was being certified as unfit for work and receiving Centrelink benefits. In essence, the defendant states that the plaintiff has behaved fraudulently in this regard and, accordingly, should not be believed about the nature and extent of his back pain and symptoms and limitations which he currently claims.
9 The defendant also asserts that the fact that the plaintiff had attended gambling venues with some regularity, particularly in April and May this year, and spent hundreds of dollars on either poker machines or playing Keno, further erodes his credit concerning his limited activity, including inability to sit. Also, he claimed not to be able to drive for longer than approximately 30 minutes, when it was apparent that he was attending gambling venues some distance from his house at locations such as Langwarrin, Cranbourne, Hampton Park and Hallam, and he, at times, attended more than one gambling venue on any one particular day.
10 The plaintiff’s explanation for not revealing the painting activity which he undertook at his brother-in-law’s business is that he did not believe that it constituted “work” which he had to reveal to Centrelink because he was not being paid for it. He states that the money given to him by his sister was genuinely paid in order to enable him to keep up his mortgage payments on the home, which he shares with his mother, after he ceased to have an income after his employment was terminated in September 2013. He states that those payments had been made to him since early 2014, many months before he started any painting activity at his brother-in-law’s business towards the end of 2014. He stated that he was under no obligation to perform any particular work for his brother-in-law and could come and go as he pleased, took more breaks than other workers and often left the workplace early. He acknowledges that the gambling activity in which he had engaged was poor behaviour on his part, but said that he felt low in mood because of his injury and lack of employment and it had effectively become a bad habit. He stated that the money spent on gambling had in part, been a gift of some $6,000 from an uncle in Bosnia but, also, money which he had previously won whilst gambling.
Background
11 The plaintiff is presently aged 34 years, having been born in March 1982 in Bosnia. When aged approximately 16 years, in 1998, he migrated to Australia, where he completed Year 12 and then a portion of the first year of a Tourism Management Course at TAFE, which he did not complete. He then worked as a security guard from 2002 to 2005.
12 In February 2005, the plaintiff commenced working with the defendant, which manufactures vinyl flooring. Each day, he repetitively lifted 25-kilogram bags of mixing material and was also involved in repetitive bending and twisting in order to clean the mixing machines. He experienced back pain from time-to-time.
13 In or about early 2010, the plaintiff attended his general practitioner, Dr Chan, complaining of lower back pain and was prescribed Voltaren and Panadeine Forte. In March 2010, he was placed on light duties for a couple of weeks but, then resumed full duties. He continued to experience back pain and attended Dr Chan again in August 2010 complaining of lower back pain and left sciatica and was again prescribed Voltaren and Panadeine Forte. He was again placed on light duties for a couple of weeks and, then, resumed full duties.
14 The plaintiff’s evidence is that he continued to experience back pain and, from about 2011 to 2013, had massages at the local shopping centre for it, and, on weekends, he would seek treatment from his cousin, who is a masseur. He states that in March 2013, he applied for a redundancy as he was worried about his ability to keep working with back pain. His request was not granted by the defendant.
15 In June 2013, the plaintiff took three months’ long service leave and returned to Bosnia for a holiday. When he returned to work on 16 September 2013, he was spoken to by his supervisor about photographs of himself which he had posted on Facebook. These showed him standing on a forklift, apparently in breach of safety regulations. Following an investigation, his employment was terminated on 20 September 2013.[2]
[2]Paragraphs 6 and 7 of the plaintiff’s first affidavit
16 The plaintiff has continued to be treated by Dr Chan for his back pain, which he states is ongoing and constant in his lower back, and sometimes radiates down his left leg. A CT scan taken on 24 September 2013 was reported as showing a mild broad-based and focal disc protrusion at the right paracentral region of L5-S1, which slightly indented the right S1 nerve root, but the left S1 nerve root was intact.
17 The plaintiff was referred to Mr Drnda, neurosurgeon, in November 2013. An MRI scan taken on 3 December 2013 was reported as showing a small broad-based discophytic ridge and prominent disc component at L5-S1 level indenting the anterior thecal sac and producing moderate to severe right foraminal narrowing, possibly compromising the exiting right L5 nerve root.
18 In a report back to another general practitioner seen by the plaintiff, Dr Naiss, Mr Drnda stated that the MRI scan confirmed what was on the CT scan, namely that there was an L5-S1 disc protrusion to the right and to the foramen, with moderate stenosis but no compression.
19 In a report to the Accident Compensation Conciliation Service of the same date, Mr Drnda stated that the diagnosis was L5-S1 disc protrusion with chronic back pain, and that the plaintiff’s work could cause accelerated degenerative changes in the spine. He stated:
“At the age of 31 he has got a significantly degenerated disc L5-S1, so in that respect I would say that his work was a significant contributing factor for development of accelerated degeneration of disc L5-S1.”
Mr Drnda considered that the condition resulted from continuous repetitive strain at work, that the plaintiff did not have the capacity for pre-injury duties, and would not be able to do jobs that require repetitive bending, twisting and lifting, and carrying anything heavier than 10 kilograms, and such restrictions would likely be required indefinitely. He thought the plaintiff did not require surgical treatment, but needed physiotherapy and self-paced exercises.
20 The plaintiff undertook a physiotherapy and a gymnasium program until the WorkCover insurer apparently discontinued entitlement to such treatment at some stage in 2014. Since late 2013, he had been taking Tramal and Celebrex prescribed by Dr Chan and, by 2015, he was also prescribed Lyrica. He continues to be prescribed 200 milligrams of Celebrex, 200 milligrams of Tramal and 150 milligrams of Lyrica each day.
21 On 14 July 2015, a further MRI scan was undertaken, which was reported as follows:
“L3/4:
Early disc desiccation with broad based disc protrusion eccentric to the left. Early bilateral facet arthropathy with small left > right facet effusions. Mild narrowing of the left neural exit foramen with flattening of the exiting left L3 nerve root.
L4/5:
Early disc desiccation and broad based disc protrusion eccentric to the left, contacting the exiting left L4 nerve root in its neural exit foramen. No central stenosis. Mild bilateral facet arthropathy.
L5/S1:
Disc desiccation with moderate right paracentral disc extrusion which contacts the traversing right S1 nerve root in the lateral recess and causes moderate compression of the right L5 nerve root in the neural exit foramen. No central stenosis. No left foraminal or subarticular stenosis. Mild bilateral facet arthropathy.
No signal abnormality of the imaged S1 joints.”[3]
[3]Plaintiff’s Court Book (“PBC”) 14
22 Mr Drnda apparently viewed the film of the MRI scan taken on 14 July 2015 but his interpretation of it differs somewhat to that of the radiologist, in that he did not believe there was demonstrable nerve root compression. In a report dated 9 February 2015, Mr Drnda stated:
“MRI scan done about this time revealed some progression in desiccations in the disc L3/4 and L4/5 without significant protrusion. On these levels there was a minor protrusion in the foramina but without neural compression. At L5/S1 there was a mild broad based disc protrusion extending into the right foramen with an annular tear. There was a small facet-joint cyst on the right L5/S1 facet joint. There was no nerve root compression.”
23 Mr Drnda found no radiculopathy, but still considered work to be a significant contributing factor to his condition and thought, as at his last consultation on 25 August 2015, that the plaintiff did not have a capacity for work. He stated that his prognosis was significantly guarded, given the chronicity of the plaintiff’s condition.[4]
[4]PCB 32 and 33
24 Mr Drnda has not seen the plaintiff since 25 August 2015 and has not been asked to comment upon the report of the surveillance operator or to view the surveillance film.
Surveillance film
25 The surveillance film tendered by the defendant was taken on 30 March 2015 and 31 March 2015. On these days, the plaintiff is viewed through a window at a couple of different locations using a small cylinder, which appears to contain sealant or some form of caulking substance, around windows. He is also seen with a paintbrush in his right hand and a small tin of paint in his left hand. On a number of occasions, he is seen to bend quite fully from the waist down to floor level, but such movements are fleeting and not sustained, and it is not always possible to see the lower part of his body in order to know whether his knees are bent or not. At other times, he is seen to move with his back to a 45-degree angle and at times, bends to 90 degrees. However, the bending is performed in a second or two and not sustained. He is seen stretching his arm above head height on the right and sweeping down to below the visible windowsill and back up again.
26 When I first saw the film, I thought it was damaging to the plaintiff’s credit, particularly given that he had said in paragraph 10 of his first affidavit: “Even simple things like leaning forward to brush my teeth can aggravate my back pain.” However, on carefully looking through the medical reports, I note that the plaintiff’s range of movement when examined by various doctors has varied, and his general practitioner, Dr Chan, in his oral evidence, stated that the plaintiff’s condition is one which can fluctuate in intensity and is better on warmer days. Indeed, he noted that the film was taken when the sun was shining. The plaintiff himself, in re‑examination, said that he has good days and bad days. When Mr Scott examined the plaintiff on behalf of the defendant on 1 June 2015, he noted that there was only a mild reduction in the range of movements of the lumbosacral spine,[5] whereas, on 21 December 2015, when Mr Dooley examined the plaintiff, he found that flexion was limited to 70 degrees. When Mr Drnda saw him last on 25 August 2015, he stated that he was moving pretty freely and had some mild limitation of movement in his lower back.[6] Notwithstanding this, Mr Drnda concluded, at that stage, that the plaintiff did not have work capacity. On the balance of probabilities, I am satisfied that the plaintiff’s range of movement does vary depending upon the intensity of his pain, and the fact that Mr Scott and Mr Drnda note that he had only mild reduction in range of movement of the lumbosacral spine, or was moving pretty freely, demonstrates that the plaintiff was not endeavouring to exaggerate his limitation of movement when he was examined by doctors.
[5]DCB 5
[6]DCB 73
27 It is certainly not to the plaintiff’s credit that he failed to reveal to all doctors the fact that he was attending his brother-in-law’s business to do painting work from late 2014 through to some time in the first part of 2016. As I have stated, the first mention of this factor by the plaintiff was just after the existence of the surveillance film was revealed at a case conference on 16 February 2016. The plaintiff did not impress me as a very intelligent person, but I am unable to say whether he seriously believed that this was not “work” because he was not being paid for it. Given that he was claiming that he was unable to work and being certified as being totally incapacitated for work, one would expect that he would reveal activity of which he was capable. I here interpolate that I do not accept the defendant’s submission that, in effect, he was being paid $550 for the work that he was doing at his brother-in-law’s painting business. This is because the evidence before me indicates that he was being paid that sum from the beginning of 2014, but, according to his brother-in-law’s affidavit, which was not challenged by requiring him to attend Court for cross-examination, the plaintiff did not start doing any painting work for his brother-in-law until December 2014. Moreover, it accords with commonsense that, given that the plaintiff shares the house with his mother, his sister would be understandably concerned to ensure that the mortgage payments were maintained so that her mother would have the security of a home in which to live, as well as the plaintiff.
28 The question is whether the plaintiff’s failure to reveal his painting activities until he became aware that they were known to the defendant so damages his credit that I should not believe what he says about the extent of his pain and suffering relating to his back injury. After anxious consideration, I have determined that the film and the plaintiff’s failure to reveal his painting activities, while being something which should cause me to look carefully at whether I should accept at face value the plaintiff’s other evidence, it is not fatal to his credit. My reasons for so finding are as follows:
(a) On carefully and closely examining the film, I find that on 30 January 2015, although the film purports to commence at 7.48am and to conclude at 5.00pm, nine hours and twelve minutes, the actual footage has multiple gaps, in that it jumps in time on many occasions so that the total running time of the film is only 41 minutes. For some of that 41 minutes, the plaintiff is not visible or is partially obscured. Doing the best that I can, the plaintiff is visible for only 38 of those minutes. Of those 38 minutes, the greatest length of time during which I observe him continuously working is from 9.36am to 9.44am, a total of eight minutes.
(b) On the following day, 31 March 2015, the film purports to be taken between 9.02am and 11.38am, two hours and 36 minutes. Again, there are breaks in the footage where the film jumps ahead in time so that the total length of the film is only 42 minutes. Doing the best that I can, given that there are obstructions to vision and, at times, only part of a person is visible, I estimate that the total amount of this time that the plaintiff is seen doing work is approximately 38 minutes. Of this period, the longest stretches of activity are 12 minutes between 10.41am and 10.53am and 15 minutes between 11.38am and 11.53am.
(c) Although a number of the doctors have commented that the plaintiff is working a full day, the surveillance film shows that from 7.48am to 5.00pm on 30 March 2015 and from 9.02am to 11.38am on 31 March 2015, he is seen working for a total of 76 minutes, of which the greatest length of continuous activity comprises 15 minutes. One must, therefore, be careful not to infer, as the defendant has submitted, that the film shows the plaintiff engaged in regular and sustained work for a whole, or even half, a day. He is never seen climbing a ladder or scaffold, he is never seen lifting anything heavy and the use of the sealant or caulking cylinder and the painting work around the frames of windows appears to be very light, even though he does, from time to time, bend his back and crouch. What impressed me when carefully viewing the film is that the plaintiff regularly changes his position. He is not standing for any prolonged period or sitting or crouching for any prolonged period. He moves his position constantly so that there is no sustained static load upon his spine during the relatively short intervals of continuous activity. The plaintiff has consistently complained that, apart from repetitive bending and heavy lifting, it is prolonged sitting or standing which aggravate the pain in his back.
(d) Thus, in my view, close analysis of the film does not contradict the plaintiff’s evidence that, when he has done painting jobs for his brother-in-law, he does only the lightest work and is under no compulsion to achieve any particular output, and is able to work at his own pace and take breaks when he requires. He says that he often leaves early, which is borne out by his departure from the workplace prior to midday on the second day of the film. Moreover, the affidavit of his brother-in-law, Ranko Tomic, corroborates the plaintiff’s evidence. In paragraph 9, Mr Tomic stated that, since about December 2014, the plaintiff had worked with him on and off for about two or three days in a row every two or three weeks, and he generally works where the worksite is fairly local to where he lives in Hampton Park. He stated that the plaintiff assists with the easier tasks, such as touching up skirting boards and doors and window frames, and is very slow and probably takes twice as many breaks as the paid workers. He said he often sees the plaintiff wince with what looks like pain or discomfort, especially when he is bending over. He stated that the plaintiff seems to take a lot of tablets, and, on most days he leaves before the end of the normal working day. He said the quality of the plaintiff’s work is poor due to his lack of skills and the fact that he is very slow and unreliable in his attendance, and he would not be prepared to pay him for his work.[7]
[7]PCB 11‒12
29 Whilst on the subject of the film, I note that it has been conceded by the defendant that it had the plaintiff under surveillance on 8 March 2016 from 9.00am to 2.00pm and on 15 March 2016 from 6.00am to 12.00pm, and that, on each of those occasions, surveillance footage was taken. No such footage has been produced or shown or tendered in evidence. In these circumstances, particularly given the very strong emphasis which the defendant placed on the surveillance film taken one year previously, I infer that such film would not have assisted the defendant’s case and I am more readily able to accept the plaintiff’s evidence which has been the subject of attack by the defendant.
Analysis of the evidence
30 The plaintiff claims that, over a period of years now, he has suffered persistent low-back pain with intermittent left leg pain. He states that certain activities make it worse, such as walking for longer than 30 minutes, prolonged sitting such as when driving the car for about 30 minutes, and repetitive bending, lifting and twisting motions. He finds it difficult to walk on uneven ground. He suffers pain and stiffness at night, such that he has difficulty getting comfortable in bed and it often takes him until about 2.00am to fall asleep. He is also awoken by pain during the night and often feels tired. He used to enjoy playing soccer with friends, but now cannot run, and his restriction on walking, particularly on uneven ground, limits his ability to enjoy fishing or go deer hunting with friends, and he suffers social isolation. He continues on a regime of medication of Celebrex, 100 milligrams, which he is meant to take twice per day but he usually only takes it once as it makes him drowsy, also Tramal 200 milligrams, which he takes in the evening as it makes him drowsy, and Lyrica 75 milligrams, one in the morning and one in the afternoon. He also uses a massage chair at home. He stated that his pain fluctuates and, on a bad day, he would not be able to do any of the things that he was seen doing on the surveillance film. On such bad days, there is not much that he can do to get relief. He tries to help himself by lying down, but when he lies down it hurts, so he gets up and sits down and lies down again and stretches. He states that the pain has not gone away in six years and, on average in a week, he will have two really bad days and five days that are okay. He finds it hard to drive when he has taken the medication because it makes him drowsy, so if he has to drive, he tends not to take it.
31 Although Mr Scott and Mr Dooley considered that the plaintiff’s symptoms were being magnified by psychological factors, this is not a factor mentioned by any of the other doctors, either treating or medico-legal. Nevertheless, both Mr Scott and Mr Dooley found that there was radiological evidence of organic changes in the lumbosacral spine, and Mr Dooley stated that, from an orthopaedic point of view, he had a physical capacity to carry out at least light physical work and clerical duties, and return to work would need to be on a graduated basis.
32 Dr Yong, who examined the plaintiff on behalf of the defendant in March 2016 and was aware of the surveillance footage, considered that he had a current capacity to perform tasks similar to what he was doing on the film, but should avoid repeated pushing or pulling or lifting weights of more than 7 kilograms on a repeated basis.
33 Mr Kossmann, after being made aware of the surveillance film, concluded that the plaintiff was capable of performing physically demanding work and recommended that he start at five to six hours, four to five days, and slowly increase his working hours. This, however, was on the understanding that the footage was of continuous work on the days filmed in March 2015, whereas this was not the case.
34 Dr Slesenger, who conducted a medico-legal examination at the request of the plaintiff’s solicitors, after seeing the surveillance film, stated that the plaintiff had a greater capacity to work than he had previously estimated, but he, too, placed restrictions on returning to work, namely, no pushing or pulling or carrying or lifting over 10 kilograms and not more than six hours a day on five days a week.
35 Mr Brownbill, another medico-legal examiner, at the request of the plaintiff’s solicitors, also placed restrictions on heavy lifting, forced spinal mobility and repeated bending or prolonged standing or sitting. He thought the plaintiff should attempt to return to work in alternative duties to his pre-injury duties and the number of hours would be determined by his responses. He assessed the plaintiff on 6 May 2014 and has not had the benefit of seeing the surveillance film, but, in my view, close analysis of the film does not show heavy lifting, forced spinal mobility or prolonged standing or sitting, albeit that it does show a number of occasions in which the plaintiff bends down from the waist, albeit fleetingly. It is noteworthy that Mr Brownbill, who is a very experienced neurosurgeon, noted that the plaintiff was alert and cooperative “without embellishment appearing slightly anxious but without abnormal illness behaviour”.[8] He considered, back in 2014, that the plaintiff’s back pain would continue to fluctuate indefinitely. Further, I have already referred to Mr Drnda’s opinion that, prior to the plaintiff engaging in any painting activity for his brother-in-law back on 17 December 2013, he considered that the plaintiff’s light work restrictions (no repetitive bending, twisting and lifting and carrying anything heavier than 10 kilograms) would likely continue indefinitely.[9] Thus, there is uniformity of opinion amongst the medical specialists that the plaintiff could not return to pre-injury heavy manual work.
[8]PCB 41
[9]PCB 29
36 The plaintiff’s general practitioner, Dr Chan, saw the plaintiff when he first complained of back pain in 2010 and has regularly seen him since the plaintiff consulted him after his employment was terminated in September 2013. He has given a number of reports which were tendered into evidence. Since 2013, he had been certifying the plaintiff as unfit for any work in support of his Centrelink benefits. In a report dated 8 April 2016, after having seen the report by the surveillance operator (but not the actual film itself), Dr Chan altered his view to state that the plaintiff could perform duties referred to in the surveillance report for about 25 hours per week, but the duties must be flexible and he must be able to take frequent rest breaks and change posture, noting that apparently the plaintiff had no specific demand for work performance and could do whatever he could manage. Similar to the other practitioners, he placed restrictions on repetitive pushing or pulling, lifting more than 5 kilograms, repetitive bending, squatting, climbing, reaching and twisting, and prolonged sitting, standing or walking, and stated that the incapacity was moderately severe and likely to be permanent.
37 After having had the opportunity to view the film, Dr Chan ameliorated his view of the plaintiff’s work capacity. In oral evidence, he stated that when he had examined the plaintiff, he had approximately 60 to 70 degrees of flexion, so the surveillance film did show a discrepancy, but he also considered that on a sunny day, like that shown in the film, the back can feel better and it is possible for someone with back pathology to have good days when the range of movement is better. Overall, he thought the plaintiff had low productivity. He noted that in the film, the plaintiff seemed to paint slowly and fairly lackadaisically, and, based on the film, he stated:
“I would give him very restricted, less than eight hours a week, duties.”[10]
[10]Transcript (“T”) 125
38 Dr Chan was not aware that Mr Drnda considered that the 2015 MRI scan did not show nerve root compression at L5, rather, he had assumed that the opinion expressed in the radiologist’s report was correct. It was put to Dr Chan by Mr Smith in re-examination that the plaintiff had indicated that what he had been able to do at his brother-in-law’s business was two or three days of painting every two or three weeks, that he would take at least four or five breaks a day, at least twice as many as any other worker on the site, that he would be restricted to the lightest work and worked at a much slower pace than anyone else on the site, that his brother-in-law had commented that he had witnessed him experience pain and discomfort when he was bending and he would often leave early because of back pain, and that he was unpredictable in being able to attend the worksite. Dr Chan stated:
“My view, it is very difficult for him to re-engage in work because he has ‒ my belief is that he has genuine pathologies in his back, yes.”[11]
[11]T134
39 Dr Chan went on to state that, when he had examined the plaintiff’s back and palpated it, he would normally have muscle spasm, which is probably not something that someone can fake or feign, and having seen the film, he would certify the plaintiff as not fit to do his usual work but fit for a trial of light duties of eight hours a week. It was his understanding that the plaintiff would still qualify for Centrelink benefits, albeit that Centrelink may require him to go and have an assessment or undertake job seeking or study.
40 Dr Chan stated that the plaintiff had significant pathology in his back and had had ongoing complaints of back pain since he was 31 years old and “Logic will tell us that his back is going to get worse with the advancing osteoarthritis”.[12] He stated that when one compared the MRI scan from 3 December 2013 with that of 14 July 2015, there was still nerve root impingement at L5 and he had shown deterioration at the upper two levels of L3 and L4. He said the cause was likely to be degenerative because of his right-sided problem and he was “favouring” his left, and that had caused the acceleration of the deterioration in a man who was 31 years old. He said his prediction is that he was going to get worse as he got older and he would probably need to continue on his medications, and, if the back pain got worse, he may need more scans or neurosurgical referrals and perhaps a course of injections, and there was a potential for surgery.[13]
[12]T141
[13]T142
41 Dr Chan impressed me as a careful medical practitioner who made an appropriate concession that the range of movement demonstrated on the surveillance film was greater than the 60 or 70 degrees of flexion which he had usually seen. He seemed to have looked critically at the film and, unlike Mr Dooley, Dr Yong, Mr Kossman and Dr Slesenger, he did not incorrectly infer that the film showed the plaintiff performing painting activities for the entirety of the shift. He analysed the work that the plaintiff was doing and the conditions under which he was doing it, and, on that basis, arrived at the opinion to which I have just referred. I was left in no doubt, after hearing Dr Chan’s evidence, that he considered that the plaintiff’s complaints of pain were genuine and based on pathology which is significant for the plaintiff’s age. He considered that the analgesic and anti-inflammatory medication which he prescribed is appropriate and likely to be continued and that the prognosis was for increasing deterioration of the plaintiff’s back as he got older. Certainly, he did not predict any improvement in the plaintiff’s current condition.
42 I note that Dr Chan’s assessment of the magnitude of the plaintiff’s injury accords with that of his treating neurosurgeon, Mr Drnda, as expressed in his first report dated 17 December 2013. Mr Drnda described the plaintiff’s work as having caused accelerated degenerative changes in the spine such that “at the age of 31 he has got a significantly degenerated disc L5-S1”.[14] As I have previously noted, he considered, at that stage, that restrictions on repetitive bending, twisting, lifting and carrying anything heavier than 10 kilograms were likely to be required indefinitely.[15] Further, although Mr Drnda did not consider that the most recent MRI scan in 2015 showed L5 nerve root compression, he did note that there was progression in desiccation of the two discs above that level, namely L3-4 and L4-5, and that there was an annular tear at the L5-S1 level. Thus, like Dr Chan, he notes a deterioration compared with the findings on the MRI scan two years earlier. On this point, I note that Mr Kossmann, in his report dated 11 March 2016, had stated: “Mr Krstic’s prognosis is poor. The natural history of lumbar spine degenerative disc disease and degenerative facet joint arthropathy is often progressive in nature,” and suggested that bilateral corticosteroid injections and medial branch blocks may benefit and, in the event that the spine continued to deteriorate despite those measures, he may become a candidate for consideration of surgical intervention.[16]
[14]PCB 28
[15]PCB 29
[16]PCB 54‒55 and 57
Conclusion
43 Having analysed the evidence in this case, I am satisfied of the following matters on the balance of probabilities:
(i)The plaintiff’s employment with the defendant from 2005 onwards, which involved repetitive and heavy lifting and bending, was responsible for the initial symptoms of back pain which were experienced by the plaintiff in 2010 and continued from time to time thereafter, but had reached the stage, by March 2013, where the plaintiff decided that he should cease that employment, mainly because of his back pain, and requested a redundancy. The injury consisted of damage to the L5-S1 disc, which has resulted in ongoing back pain to the present time. The plaintiff’s work with the defendant has been responsible for aggravation and acceleration of degenerative changes in his lumbar spine, such that the two levels above the L5-S1 level now show early disc desiccation and protrusion. In addition, regardless of whether Mr Drnda is correct that the latest MRI scan does not show compression of the L5 nerve root as reported by the radiologist, there is progression in pathology by way of an annular tear, according to Mr Drnda. The pathology, as demonstrated on the most recent MRI scan in 2015, is consistent with the plaintiff’s ongoing back pain. I specifically reject the opinion of Mr Dooley, who alone describes the plaintiff as having “naturally occurring degenerative disc disease of the low lumbar spine” and that there will be no deterioration above the natural evolution of his underlying degenerative disc disease.[17] There is a strong temporal connection between the onset of the plaintiff’s back pain in 2010 and the very heavy and repetitive work he was undertaking, and, whether or not he had degenerative change prior to 2010, there is no evidence to indicate that it would necessarily have become symptomatic. There has been progression in the disease, and both his treating general practitioner and treating neurosurgeon have described the degenerative changes as being consistent with strain from his work which is capable of causing accelerated degenerative changes in the spine, such that at the age of 31, he had a significantly degenerated disc at L5-S1 to which work is a significant contributing factor.[18] The evidence is strongly supportive of the conclusion that the plaintiff has a permanent impairment of his lumbar spine.
[17]DCB 13‒14
[18]See Mr Drnda’s report at PCB 28
(ii)The level of pain in the plaintiff’s back is constant, but becomes seriously debilitating on an average of two days per week, such that the plaintiff really does not know what to do to help himself, and lies down, sits up and walks about to try to assist with the pain. He is on a significant regime of medication by way of Celebrex, Tramal and Lyrica for his pain, and no doctor has suggested that this is other than appropriate. Dr Chan has indicated that it will be necessary for this medication to be continued into the future as the plaintiff’s condition is likely to continue to deteriorate, giving rise to further pain which may require spinal injections or ultimately surgery, a view which is shared by Mr Kossmann, as expressed in his report dated 11 March 2016.
(iii)I make no specific determination as to the number of hours of work of which the plaintiff might be capable, although I consider that Dr Chan, as his treating general practitioner, having seen him most frequently and having carefully reviewed the film, is probably a reliable guide in suggesting that the plaintiff could do a trial of eight hours per week light work. Regardless of the number of hours or work of which the plaintiff may be capable, he suffers a permanent reduction in his capacity to work, which previously involved heavy and repetitive manual work, in that he is now restricted to light work which involves no repetitive lifting or bending and restriction of weights to be lifted of only a few kilograms. For a man who is only 34 years old now and who has only ever been employed in manual work, this is a very substantial restriction. I accept that the plaintiff is genuinely anxious about his future in terms of his capacity to obtain and sustain employment and that such anxiety is understandable and has a factual basis for it. I accept that the insecurity the plaintiff feels about his work and financial future also causes him anxiety about whether he would be an attractive partner for someone and be able to support a family of his own.[19] I also accept that the plaintiff misses working and being fit and able, and that he had also enjoyed the social aspect of his work.[20]
[19]Paragraph 16 of the plaintiff’s second affidavit, PCB 4
[20]Paragraph 18 of the plaintiff’s first affidavit, PCB 4
(iv)The plaintiff’s back condition restricts him in household tasks of a heavier nature. He conceded that he is able to mow the lawn, but his mother tends to do it because she feels sorry for him with his pain. However, he does have difficulty putting on shoes and socks and bending over to pull up his trousers. These tasks, which require sustained bending whilst manipulating the shoes, socks or trousers, in my view, do not correlate with the fleeting bending which is seen in the film, and I accept that they are daily activities with which the plaintiff has difficulty.
(v)The plaintiff is unable to run and is limited in his ability to walk to about 30 minutes, as he tends to experience back pain and left leg pain. Although the medical evidence raises an issue as to whether there is true left leg radiculopathy, referred pain from the back is a known phenomenon and Dr Chan’s analysis is a probable one; namely, because he has demonstrated difficulty on the right-hand side, he has “favoured” his left and that has caused the deterioration in the upper discs at L3-4 and L4‑5.[21]
[21]T142
(vi)The plaintiff’s back prevents him playing soccer with his friends and engaging in other recreational activities of fishing and deer hunting, particularly because of his difficulty in negotiating uneven ground.
(vii)The plaintiff is restricted in his ability to sit for approximately half-an-hour and, similarly, in relation to his ability to stand because of his back pain.
(viii)Although the plaintiff is able to drive, he is not able to manage to do so for more than approximately 30 minutes because of his back pain induced by prolonged sitting. In addition, he suffers drowsiness because of the medication which he takes and, when he needs to drive, he therefore avoids taking such medication. I here note that Mr Scanlon, on behalf of the defendant, submitted that the plaintiff’s ability to drive was not so limited because his bank records had shown him, particularly in April 2016, to have attended various hotels in order to gamble and that such hotels were a considerable distance from the plaintiff’s home in Hampton Park. Mr Scanlon did not assist the Court with any material defining the actual distance of these premises from the plaintiff’s home. I have taken judicial notice from Google Maps that, of the ten venues mentioned, the distance from the plaintiff’s home is as follows:
§ Hampton Park Tavern: 2.4 kilometres
§ Lynbrook Hotel: 2.5 kilometres
§ Hallam: 5.3 kilometres
§ Settlement Hotel, Cranbourne: 6.7 kilometres
§ Fountain Gate Hotel: 7.5 kilometres
§ Prince Mark Hotel, Dandenong: 8.6 kilometres
§ Highways, Sandown Park: 20.6 kilometres
§ The Vale, Mulgrave: 20.7 kilometres
§ Village Green Hotel: 23 kilometres
§ Monash Hotel: 23 kilometres.
Thus, I do not accept Mr Scanlon’s assertion that the plaintiff’s driving to such venues indicates a capacity to drive beyond that which he has sworn, namely, approximately 30 minutes. Moreover, his brother-in-law, in his affidavit, noted that the plaintiff only worked with him when the worksite was local to where the plaintiff lives, as he has difficulty driving, and on one occasion when he did come to a job which was out of Melbourne, the plaintiff appeared to be in a lot of discomfort and struggled more than usual with the work he was doing and took longer and more frequent breaks.[22] This unchallenged evidence is supportive of what the plaintiff has told the Court in his evidence.
(ix)The plaintiff’s sleep is disturbed by pain in his back. This has been a feature of his presentation for some time and he finds that, because of it, he is often tired, drowsy and grumpy during the day.[23] The plaintiff was never challenged on this complaint.
(x)The plaintiff has sworn in his affidavits that his back injury has caused him to become socially isolated. He suffered a breakup of his relationship with his partner, which he attributes to the back injury, and there is no evidence that he has had a relationship since. Apart from going to poker machine venues and mentioning in cross-examination that he had been to a birthday party at a hotel and on an occasion or occasions had had lunch with friends at a hotel, where he had been in a shout, albeit that he personally does not drink alcohol, there is no evidence of an active social life. I accept that the physical restrictions and his inability to accompany friends on recreational pursuits which he had prior to his back injury, coupled with his pain and drowsiness from the medication, are likely to have had, and continue to have, an adverse effect upon his capacity to socialise and sustain meaningful relationships.
[22]Paragraph 9 of Ranko Tomic’s affidavit, PCB 11‒12
[23]Paragraph 12 of the plaintiff’s first affidavit, PCB 3, and paragraph 9 of the plaintiff’s second affidavit, PCB 6‒7
44 In my view, the combination of all of the above factors for a man who is only 34 years’ old, support a conclusion that the pain and suffering consequences of the impairment to the plaintiff’s lumbar spine are serious for him and serious when judged by comparison with other cases in the range of possible impairment or losses of low-back function, and may be fairly described as being “more than significant or marked” and as being “at least very considerable”.
45 Accordingly, I am satisfied that the plaintiff has succeeded in his application and should be granted leave to bring common law proceedings to recover damages for pain and suffering flowing from his lower back injury arising out of, or in the course of, or due to the nature of his employment with the defendant.
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