Lizurek v Molmic Furniture Pty Ltd
[2011] VCC 1185
•14 July 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05566
| MIKOLAJ LIZUREK | Plaintiff |
| v | |
| MOLMIC FURNITURE PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 and 28 June 2011 |
| DATE OF JUDGMENT: | 14 July 2011 |
| CASE MAY BE CITED AS: | Lizurek v Molmic Furniture Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1185 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – pain and suffering damages only.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Reardon with | Hall & Wilcox |
| Ms N Wolski | ||
| For the Defendants | Ms S Manova | Nowicki Carbone & Co |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 23 November 2009 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the first defendant. The plaintiff alleged the injury to his neck and lower back occurred on or about 22 March 2004.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering only.
3 Mr J Reardon of counsel appeared with Ms N Wolski of counsel for the plaintiff and Ms S Manova of counsel appeared for the defendants.
4 At the commencement of the application the body function which the plaintiff says has been lost or impaired is the lower back and the neck. At the conclusion of the application, Mr Reardon, on behalf of the plaintiff, submitted that the body function which the plaintiff has lost or has been impaired in respect of this application, was the lower back. The plaintiff abandoned the application in respect of the alleged injury to his neck.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
Dr Elias Sleaby, general practitioner for the plaintiff, gave evidence and was cross-examined;
• The plaintiff tendered the following documents: ƒ Exhibit A, Complete Record as at 13 May 2009 of Dr Sleaby,
general practitioner;
ƒ Exhibit B, the Plaintiff’s Court Book (“PCB”) (including pages 1-9,
16-25, 33-35, 43-71, and 75-84);
• The defendants tendered the following documents:
ƒ Film taken of the plaintiff on DVD dated 7 July 2010; ƒ The Defendants’ Court Book (“DCB”) (including pages 1-18, 20-35,
and 41-42).
6 In the closing submissions, Mr Reardon abandoned the application for serious injury under part (a) of the definition which related to the cervical spine. The decision for serious injury that I have to consider is whether or not the plaintiff has satisfied the serious injury test for permanent serious impairment or loss of a body function to the plaintiff’s lower back.
7 At the commencement of the application, Ms Manova, on behalf of the defendants, stated that the issues for consideration from the defendants’ perspective were:
(a) causation in respect of the neck injury; (b) whether the plaintiff had an ongoing back injury that had an organic basis; (c) whether the injury to the back was “very considerable”, as required under the legislation; and (d) whether the aggravation to the plaintiff’s back was sufficient to satisfy the “very considerable” test. 8 I will not deal with the alleged neck injury, as the plaintiff has abandoned that part of the application.
The Statutory Scheme
9 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s.134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
10 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)
Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
11 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
12 The plaintiff was born in Belarus, part of the former USSR, on 7 March 1944 and is now aged sixty-seven years. The plaintiff migrated to Australia in 1994. He is a married man with three children. He presently resides with his wife and youngest son in St Albans.
13 The plaintiff initially worked at Eatmore Poultry in Laverton for one and a half years prior to working with the first defendant. In September of 1997, the plaintiff commenced work with Molmic Furniture Pty Ltd (“Molmic”) and continued in that employment until aged sixty-five. The plaintiff has not worked since April 2009.
The Injury with the First Defendant
14 The plaintiff sets out the circumstances in which he was injured in his affidavit dated 23 June 2009. In the course of his employment as a pre-upholsterer, he was required to lift frames for couches from a trolley and then perform his work on that frame. On or about 22 March 2004, the plaintiff, in the course of his employment while lifting a four-seater couch frame, experienced pain in his abdomen. He immediately stopped work and went home.
15 He then resumed work for approximately one week, despite his ongoing pain in the abdomen and what he describes as “neck and back”.[3] In the Worker’s Claim Form dated 2 October 2004, he outlines his left inguinal hernia and pain of the muscles around the leg and back.[4]
[3] PCB 4
[4] PCB 78
16 There was no contest from the defendants that a lifting accident occurred on or about 22 March 2004, which resulted in the inguinal hernia injury to the plaintiff. The issue was whether the plaintiff had suffered an injury to the lower back at the same time.
The Plaintiff’s Medical Treatment
17 The plaintiff saw Dr Sleaby, general practitioner, on 29 March 2004 complaining of a lump in the groin, left rotator cuff syndrome and left back pain syndrome.[5] The plaintiff was given time off work and referred to Mr Ben Yokhanis for advice and treatment for the inguinal hernia. On 2 April 2004, the plaintiff was given a certificate for alternative duties with restrictions on lifting and no bending. The plaintiff was prescribed Voltaren medication at this time.
[5] Exhibit A
18 Mr Ben Yokhanis, general surgeon, performed an inguinal hernia repair on the left side to the plaintiff on 18 June 2004. On the evidence, it seems that the hernia repair was successful and that the plaintiff has suffered no further difficulties as a result of that particular injury.
19 The plaintiff continued to see Dr Sleaby concerning his back Pain Syndrome, as it is referred to by the general practitioner.
20 In July of 2004, the plaintiff was referred to Mr Dakyar, physiotherapist, for five treatments.
21 The plaintiff has continued to attend Dr Sleaby from the time of the injury until the present time in relation to his back pain and symptoms. The symptoms have fluctuated from left-sided sciatica and constant low-back pain to just low- back pain for all of the time up until he ceased work in April 2009. In that time he was prescribed Voltaren and Tramadol. Dr Sleaby, stated that on occasions when the plaintiff could not tolerate Voltaren, that the medication was changed to Digesic to assist him with his symptoms.
22 The plaintiff had previously had some back symptoms which resulted in a CT lumbar spine scan being performed on 7 April 1999. A copy of that CT scan appears at PCB 68. The conclusion set out in that report states that the plaintiff had suffered a possible left L3-L4 disc prolapse impinging on the L4 nerve root.
23 After the lifting accident of March 2004, Dr Sleaby organised a CT scan of the lumbar spine of the plaintiff on 18 September 2004. The report of this CT scan appears at PCB 69. The CT scan of September 2004 reveals pathology at L4-L5 and L5-S1 which is additional or “new” pathology from the time in 1999.
24 As I have already stated, the plaintiff continued to complain of low-back pain right up to the time of his retirement in 2009. Dr Sleaby ordered a further CT scan of his lower back on 4 May 2009. In that report, the previous disc bulges and pathology were referred to but there is “an additional level of L2-L3 has a disc bulge which could irritate or partially impinge upon both L3 nerve roots”.[6]
[6] PCB 71
25 The plaintiff was referred to Dr Alex Stockman, rheumatologist, in July 2009 by Dr Sleaby. Dr Stockman diagnosed that the plaintiff has a degenerative condition in his cervical and lumbar spine. Dr Stockman accepted the history given by the plaintiff concerning his accident in March 2004 and accepted that the back symptoms and the resulting pain were the cause of his retirement in early 2009. Dr Stockman’s opinion was that the plaintiff should continue to be treated with Tramadol and occasional Voltaren (as long as he could tolerate it) due to the stiffness in his spine. Dr Stockman thought a return to Mr Dakyar, physiotherapist, would be of some assistance.
26 The treatment that the plaintiff has received has been managed by Dr Sleaby and consists of medication of Voltaren and Tramadol. Dr Sleaby has also treated the plaintiff for depression and has prescribed Lexapro. Dr Sleaby says that the depression is well managed. This treatment continues to the present time.
Causation
27 The first defendant in this application challenged the plaintiff on the basis that the work, or more particularly the accident, in March 2004 did not cause his current low-back symptoms. It is clear in the affidavits of Robina Jopio, Anthony Paterra and Molly McMahon, that the plaintiff performed his duties as a pre-upholsterer from 1997 to 2004 without any restrictions or complaint. Subsequent to his injury in March 2004, the plaintiff then worked on light work. Mr Paterra described the light duties as “very light in nature” and that the plaintiff stood and watched the machine cut small pieces of timber.[7] Ms McMahon described the light duties in exactly the same nature.[8] Both Mr Paterra and Ms McMahon said that the plaintiff never made any complaint about his injuries or pains in performing his light duties subsequent to 2004. It is to be remembered that during the whole period from March 2004 to the present time, that the plaintiff has been attending his general practitioner complaining of back pain. What may be concluded reasonably is that the plaintiff presented as a stoical and non-complaining worker to his employers and fellow workers but attended his general practitioner and received ongoing treatment so that he could continue to work.
[7] DCB 8
[8] DCB 15
28 I have heard evidence from Dr Sleaby, the general practitioner for the plaintiff in this matter. Dr Sleaby was cross-examined at some length. Dr Sleaby impressed me as a very forthright and honest witness. He stated that part of the condition for the plaintiff was that he had degenerative changes which he described as, “something that we get as we all grow older”. Dr Sleaby was asked:[9]
[9] T 69, L19 – 26
“Q: He told you of a specific accident. What was the relevance of
that?---A: That accident may have triggered asymptomatic changes in the
spine into an injury that gave him pain.Q: What was your opinion as to whether or not that had happened?--- A: I’m not clear what - - - Q: What brought about the pain that he was having?--- A: The accident described at work.”
29 In cross-examination, Dr Sleaby was asked this question:[10]
[10] T 88, L11
“Q: The requirement to be off work and the initial requirement to be on
light duties was linked simply to the hernia?---A: Not just for the hernia, no, because the hernia and back pain, they can be the same causations, pushing, lifting, heavy lifting, pulling, that can give you [a] sore back and can give you [a] hernia. So here they probably are two different pathologies but following his recovery from the hernia he continues to have pain and mainly the certificate was referring to the lighter duties because of the back pain.”
30 I find that Dr Sleaby was clearly stating that the hernia and lower back injury resulted at the same time and that after the hernia repair was successful, the continuing difficulty that the plaintiff suffered was to do with the back pain.
31 Dr Sleaby was also cross-examined on the question of whether or not the injury in March 2004 was any different from the position disclosed on the CT scan of April 1999. Dr Sleaby was asked:[11]
[11] T107, L18
“Q:
So insofar as you’re not able to say exactly what his level of symptom was in the years leading up to the accident, you can’t confirm one way or the other whether the incident in 2004 has caused an organic injury to his lumbar spine, can you?---
A: No, that’s different, 2004 we established there is a new injury but
not before 2004.Q: You say that there is a new injury simply based on comparing the
levels?---A: No, no. Q: … of nerve root compression based on the CT scans?--- A:
That’s one factor; that’s one factor. The patient came to see [me] on multiple times in 2004 onwards complaining of various symptoms, not just the CT scan results.”
32 Dr Sleaby was then challenged on the basis that he was not given a history of prior back problems by the plaintiff. He conceded that he did not know about the previous back injuries at the time he first saw the plaintiff. He was then asked:[12]
[12] T 108, L6
“Q: You concluded that he had a work-related injury on that basis and
were reluctant to then change your opinion?---A: No, no. Q: Why?--- A: What change? This man has injuries in 2004 and these injuries continues. What am I changing? I’m sorry, your Honour, I didn’t understand the question.”
33 I conclude, on the basis of accepting the evidence given by the plaintiff and the evidence given by Dr Sleaby and treatment given to the plaintiff, that the plaintiff’s difficulties with his lower back commenced with the lifting accident of March 2004. The lower back symptoms continue to the present time. Naturally there has been some degenerative progression to the plaintiff’s lower back in the period 2004 to now. Dr Sleaby does not attribute the current symptoms and consequences for the plaintiff to the degeneration but rather he says that the problems started with the accident in March 2004. I accept Dr Sleaby’s opinion in that matter.
The Medical Opinions
34 I think it is unnecessary to review the medical evidence in any significant detail because there appears to be a level of agreement amongst the medical practitioners concerning the actual injury suffered by the plaintiff as far as the low-back is concerned. I will, however, refer to various parts of the medical opinions tendered in evidence in this case.
35 The plaintiff’s general practitioner, Dr Sleaby, was called to give evidence and be cross-examined. As I have previously said, Dr Sleaby impressed me as a straightforward and honest witness. In his report dated 20 June 2011, Dr Sleaby stated that the plaintiff sustained lumbosacral and cervical spine musculo-ligamentous and disc injuries.[13] In evidence and cross-examination, the emphasis in respect to the plaintiff’s condition was focussed on his lower back. I have previously referred to parts of Dr Sleaby’s evidence in these reasons and will not repeat them. In summary, Dr Sleaby was of the opinion that the lifting accident which occurred in March of 2004 was the instigating event for the plaintiff’s symptoms of pain and stiffness in his back with some referral of sciatica over the period of time from 2004 until the current time. Dr Sleaby has prescribed anti-inflammatory medication and painkillers over that period and continues to do so to the present time. Dr Sleaby clearly set out that the plaintiff could not perform his pre-injury duties from March of 2004 through to the current time.
[13] PCB 67A
36 The radiological evidence which was tendered as part of the plaintiff’s case supports the diagnosis made by Dr Sleaby. Dr Sleaby was at pains to point out on a number of occasions during the course of his evidence that he did not rely only on the radiology imagining for diagnostic purposes. He said that the clinical features presented by the plaintiff were an integral part of his assessment process and that he used both the radiology and his clinical examinations to arrive at his diagnosis and treatment. Dr Sleaby stated that the injury to the plaintiff’s lower back was significant and that the symptoms had been going on for a long time, even now after his retirement. Dr Sleaby was there referring to the plaintiff’s retirement in April of 2009.[14]
[14] T 72, L12-14
37 Dr Sleaby conceded that the plaintiff suffered from an Adjustment Disorder, but when questioned about whether the plaintiff was exaggerating his symptoms, Dr Sleaby stated that:
“In my opinion this man has genuine back problems, lower back
problems.”
Dr Sleaby was then asked:
[15] T 120-121
“Q: Is it organic?--- A: It certainly is, and it’s not psychological to have nerve root ... .”[15]
38 Dr Sleaby was clearly differentiating between what he describes as the plaintiff’s psychological condition which resulted in the development of an Adjustment Disorder and the actual physical injury to his back.[16] Dr Sleaby stated that the injury to the plaintiff’s back is serious from a medical point of view.[17]
[16] PCB 67D
[17] T 119
39 The plaintiff was examined by Dr Alex Stockman, a rheumatologist, on 7 July 2009. Dr Stockman accepted that the plaintiff had lumbar back pain which was aggravated by bending and lifting and also on prolonged standing, and is also associated with pain at the back of both knees. Prolonged sitting also aggravates the pain. Dr Stockman, on examination, found that the major abnormality was the global restriction in movement of the cervical and lumbar spine. Dr Stockman diagnosed the plaintiff with a degenerative condition of the cervical and lumbar spine and stated that the latter, that is the lumbar spine, was causing pain in the back of the knees. The history given by the plaintiff to Dr Stockman was that the symptoms commenced in March of 2004. Dr Stockman accepts that those symptoms did continue up until the time of examination and that the plaintiff retired because he could no longer put up with the pain.[18]
[18] PCB 43
40 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff on 10 March 2010 and 13 December 2010. Mr Miller took a history from the plaintiff of an accident in March of 2004. He describes a specific aggravation of the lumbar spine occurring in March of 2004.[19] I note that Mr Miller took a history from the plaintiff in respect of his lower back causing significant sleep disturbance.[20] In his report dated 30 December 2010, Mr Miller acknowledges that the relationship of the current symptomology to the work is a difficult issue. He goes on to conclude:
“On the information available to me, it would appear that the work in the period around mid March 2004 as outlined in section 3.1 of my report caused a significant aggravation of the problems of the cervical spine, lumbar spine and I believe that that affect persists.”[21]
[19] PCB 50
[20] PCB 54
[21] PCB 57
41 In summary, Mr Miller accepts that the accident of March 2004 significantly aggravated the problems and symptoms to the plaintiff’s lumbar spine. Mr Miller goes on to give the opinion, in respect of the alleged Adjustment Disorder or psychological overlay, that in his clinical history and examination he found the symptoms to fall within the bounds of defined orthopaedic disease. In other words, Mr Miller accepts what the plaintiff says about his orthopaedic and physical injuries as organically-based and not as a result of any psychological overlay.[22]
[22] PCB 61
42 Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff on behalf of the first defendant on 15 November 2004 and 7 March 2011. In his first report dated 15 November 2004, Mr Kudelka set out the following opinions:
•
“This patient aggravated pre-existing degenerative changes in the lumbar spine causing back ache and stiffness during the course of his normal employment in March 2004.
•
His employment was a significant contributing factor to this aggravation causing symptoms and resulting in a partial incapacity for employment.”[23]
[23] DCB 22
43 In his later report, Mr Kudelka stated that:
“The patient [plaintiff] will require ongoing attendances on Dr Sleaby perhaps at two-monthly intervals for renewal of various analgesic and anti-inflammatory prescriptions.”[24]
[24] DCB 25
44 Mr Kudelka diagnosed the plaintiff with age-related degenerative changes in the cervical spine, dorsal spine and both shoulders, aggravated by the nature of his employment between 2004 and 2009. He was of the view that the impairment would now last indefinitely. Mr Kudelka’s opinion is that the plaintiff will need indefinite ongoing treatment of a palliative and symptomatic nature. In the final part of his report,[25] Mr Kudelka stated that he had read and agreed with the opinions expressed by Mr Russell Miller referred to earlier in these reasons.
[25] DCB 26
45 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 17 May 2010 and 23 February 2011.[26] In summary, Mr Dooley is of the opinion that the plaintiff’s difficulties are predominantly as a result of his psychological reaction and not physically-based. He says that the work has not caused the conditions complained of by the plaintiff and there is no permanent aggravation of the underlying degenerative condition to his back. Mr Dooley says that he believes, of the episode in March 2004, that the plaintiff has had a significant psychological reaction to injury and/or pain. Mr Dooley is of the view that the plaintiff suffers from a Chronic Pain Syndrome. By way of concession, Mr Dooley reports that:
“If there has been heightened affect of the underlying conditions and possibly some aggravation, at most it has been very mild. I would not expect this mild aggravation to be lasting.”[27]
[26] DCB 30
[27] DCB 31
46 Mr Dooley, in his latest report, states:
“My view remains that following the episode in March 2004, the plaintiff developed a chronic pain syndrome and that the constancy and intensity of his ongoing pain are out of proportion to the situation. In my view the restriction of spinal motion is far greater than I would expect to see for the degree of underlying degeneration. Accepting that some aggravation of the underlying degenerative condition occurred, then I would still be of the opinion that the clinical symptoms and signs are far greater than one would expect to see.”[28]
[28] DCB 34
47 Mr Dooley goes on to reaffirm his previous opinion that if there was an aggravation, it would be mild in nature.
48 The opinion of Mr Dooley is somewhat at odds with the opinions of Mr Kudelka and Mr Miller, the other orthopaedic surgeons who have examined the plaintiff. I prefer the opinions of Mr Kudelka and Mr Miller to the opinions of Mr Dooley. Mr Dooley has made a value judgment and assessment of the plaintiff which leads him to conclude that the complaints made by the plaintiff are all predominantly psychologically-based. I do not accept that premise.
The Consequences
49 I have read the affidavits of the plaintiff sworn on 23 June 2009, 23 July 2010 and 27 September 2010.
50 I have carefully considered the evidence of the plaintiff and also his oral evidence given and tested by Ms Manova during her cross-examination of the plaintiff. The plaintiff gave his evidence with the assistance of an interpreter. The use of the interpreter sometimes interfered with the ordinary flow of evidence. I have made some allowance for the plaintiff in the giving of his evidence with the assistance of an interpreter.
51 The plaintiff struck me as a straightforward man who gave a good account of the consequences to him of the injury to his lower back which I have described. I accept his evidence in respect to the consequences of the injury to his lower back and what it has meant for him.
52 I find that the consequences which I am satisfied the plaintiff has suffered as a result of the injury to his lower back are as follows:
•
The plaintiff has persistent pain in his lower back requiring the use of painkilling medication and anti-inflammatory medication. The plaintiff takes Voltaren and Tramadol and sometimes is prescribed Digesic by his general practitioner. The constant use and persistent use of medication over the period of time from approximately March 2004 until the current time is considerable use of painkilling and anti-inflammatory medication and will be something that he will do for the rest of his life.
•
I find the plaintiff has restrictions in his movements to the extent described by the examining medical practitioners which have deprived him of full and free and unrestricted movement of his lower back. The plaintiff finds it very difficult to bend and reach and if he does so, he has pain in his back. Whilst Mr Dooley mentions abnormal illness behaviour as an explanation for the symptoms described by the plaintiff, the preponderance of the other medical practitioners accept the limitations that the plaintiff describes are organically-based and have found those limitations during the course of their examination of the plaintiff.
•
I find that as a result of the injuries received in March 2004, and in particular, the lower back injury, that from June 2004 the main reason for the plaintiff’s inability to continue in his pre-injury work was the lower back injury. He remained employed on light duties from that time until his retirement in April 2009. The total period of five years on light duties indicates the level of seriousness of the injury to his lower back. I accept the plaintiff’s evidence that he stopped work in April 2009 because he could no longer stand the pain of continuing to work. The fact that his retirement coincided approximately with his sixty-fifth birthday does not lead me to the conclusion that the plaintiff was simply just retiring. As I have previously noted in these reasons, the plaintiff never made any complaint at his place of work about his lower back difficulties in the five- year period whilst he was on light duties. However, at the same time he was attending his general practitioner, Dr Sleaby, who encouraged him to continue working and gave him sufficient medication to assist him in that regard. The medication is the same medication that he currently takes and supports the conclusion that the symptoms commenced in March of 2004 and continue to the current time. The work consequence for the plaintiff was that he could not continue with his pre-injury work shortly after the time of injury in 2004 and was never able to resume such employment. The secondary work consequence is that due to his pain after a number of years of light duties, he was unable to even continue in that limited capacity.
•
The plaintiff has suffered the consequence of greater pain levels. In his first affidavit,[29] the plaintiff sets out how the pain affects him when he is sitting for a long period; standing for a long period; walking for a long distance; or bending. The plaintiff is supported in his statement about that by the medical opinions of Mr Miller, Dr Stockman and Dr Sleaby.
•
The plaintiff, in his affidavit, set out that he was restricted in mowing the lawns. In his first affidavit he set out the same problem arising out of his neck injury. It is difficult to reconcile paragraphs 34 and 38 of his first affidavit with paragraphs 36 and 40 of his first affidavit. On the face of it, it appears that the plaintiff is blaming the neck injury for his incapacity to mow the lawns, in the first instance. He subsequently goes on to blame the lower back injury for his inability to mow the lawns. I accept that as a result of the pain to the plaintiff’s lower back, he is limited and it is a consequence for him that he cannot do the usual domestic tasks around the house that he has deposed to and that is because of the pain to his back.
•
It is significant that the plaintiff complains of having difficulty sleeping as a result of his injury to his lower back. The plaintiff sets out his difficulties about getting comfortable and frequently tossing and turning at night.[30] In his later affidavit dated 23 July 2010,[31] the plaintiff deposes that he is often woken several times during the night by the pain in his neck and lower back:
[29] PCB 6, paragraph 32
[30] PCB 8, paragraph 40
[31] PCB 19, paragraph 23
“… particularly if I toss and turn in my sleep, I am awoken by the pain and then have trouble getting back to sleep. I am often tired during the day due to lack of sleep.”
This evidence is supported by his complaint to Mr Miller[32] where he says that he has significant sleep disturbance as a result of his lower back problem. In my view, it is a matter of great significance that a person is denied rest and the ability to enjoy uninterrupted sleep. The plaintiff’s enjoyment of life would suffer a very considerable diminution as a result of his sleep deprivation and tiredness.
[32] PCB 54
•
The plaintiff deposed that he was unable to play sport with his sons.[33] The plaintiff is supported in that regard by an affidavit of Eliasz Lizurek, sworn 2 September 2010.[34] Mr Eliasz Lizurek was not cross-examined and I accept what is set out in his affidavit in this regard. Mrs Helena Lizurek, the plaintiff’s wife, also deposed in her affidavit, sworn 2 September 2010, that her husband was no longer able to play sport with her son. Mrs Lizurek was not cross-examined and I accept her evidence in that regard. This consequence is a loss of enjoyment of life for the plaintiff, in the sense that he is unable to actively engage in activities with his son.
[33] PCB 19, paragraph 24
[34] PCB 21, paragraph 8
53 The plaintiff was challenged on the basis that he was able to walk considerable distances as set out in the film shown to him. The plaintiff admitted that the film showed him handing out pamphlets for his religious organisation, Jehovah’s Witnesses. The activity shown on the film was not inconsistent with what the plaintiff had to say about his abilities in terms of walking or general activity. The images depicted on the film did not, in my view, contradict anything that the plaintiff said in his evidence or affidavits.
54 I accept the evidence given by the plaintiff in this case about his limitations and the consequences of pain and suffering for him.
Aggravation and Impact of Injury on the Plaintiff
55 I find that the plaintiff has satisfied the test set out in Petkovski v Galletti[35] for proving, on the balance of probabilities, the level of aggravation of the low- back injury to him. Prior to March 2004, the plaintiff was able to work full-time as a pre-upholsterer and had done so for a number of years without any complaint about his back injury. The CT scan for his prior back symptoms and complaints was in 1999. Subsequent to the lifting accident in March 2004, the plaintiff could only work light duties described by his employers as “very light duties” for a period of some five years. I have already outlined in these reasons the impact both by way of pain and suffering and treatment that the plaintiff has undergone since that time. He continues to have the same symptoms and level of pain with its consequential impact on his enjoyment of life.
[35] [1994] 1 VR 436
56 I find that the lifting accident of March 2004 is the cause of his current low- back complaints and that the progressive degenerative disease referred to by Mr Dooley is not the explanation for his current symptomology. The triggering event, for want of a better description, is the lifting accident in March 2004.
Conclusion
57 In conclusion, I find that many of the consequences taken in isolation do not satisfy the requisite test. I consider that in combination it is a very considerable loss to the plaintiff as follows:
• the inability to pursue some form of employment; • the inability to enjoy his life without constant and persistent suffering of pain as described by him and accepted by me; • the interruption to his sleep patterns; • the inability to go about his normal daily life and activities without suffering pain; • the necessity for medication to control his symptoms. 58 After consideration of all of the evidence, I am of the view that this is a finely balanced case but ultimately, taking into account all the consequences suffered by the plaintiff as a result of his lower back injury, I am satisfied that such consequences, when judged by a comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant or marked” and as being at least “very considerable”.
59 Accordingly, pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect of a low-back injury suffered by him in March of 2004.
- - -
0
1
0