Louden v Holcim (Australia) Pty Ltd
[2016] VCC 1930
•21 December 2016
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03877
| DENNIS JOHN LOUDEN | Plaintiff |
| v | |
| HOLCIM (AUSTRALIA) PTY LTD (ABN 87 099 732 297) | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 21 and 22 November 2016 | |
DATE OF JUDGMENT: | 21 December 2016 | |
CASE MAY BE CITED AS: | Louden v Holcim (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1930 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lower back and left hand/wrist – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Mr W R Middleton QC with Ms D Manova | Lander & Rogers |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Originating Motion seeking leave, pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”), to commence a proceeding against the defendant as his former employer, claiming damages for pain and suffering and loss of earning capacity.
2 The plaintiff, who is now aged sixty-three, commenced employment as a quarry worker with the defendant on 9 November 1989. He was employed driving a front-end loader in the defendant’s quarry. He claims that during the course of his employment he suffered an injury to his lower back which forced him to cease work on 21 August 2012. He has not worked since. The plaintiff claims that as a result of injuring his lower back during the course of his employment, he suffers from ongoing permanent impairment of the spine within the meaning of s134AB(37)(a) of the Act.
3 There is a statutory framework in the Act that proscribes what the plaintiff must prove.
4 Relevantly, to be eligible for compensation under the provisions of the Act, a worker must have suffered an injury “arising out of or in the course of, or due to the nature of” employment”. (Section134AB(1)).
5 Further, the injury must be a “serious injury”. To make out a “serious injury” within the meaning of s134AB(37)(a), the plaintiff must establish, on the balance of probabilities, that he suffered a “permanent serious impairment or loss of a body function”.
6 The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not “serious” unless the pain and suffering consequence can, when judged by a comparison with other cases in the range of possible impairments, can “fairly be described as being more than significant or marked and as being at least very considerable” within s134AB(38)(c).
7 Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering or behavioural disturbance or disorder and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event.
8 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.
9 Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined. For the purposes of those sub-sections, “suitable employment” is defined in s5 of the Act to mean “… employment in work for which the worker is currently suited” (whether or not that work is available) etc etc.
10 Subsection (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. The proper identification of pain and suffering attributable to impairment which is physical or physiological in origin requires that any psychological or psychiatric overlay be stripped aside.
11 Subsection (38)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
12 Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
13 In this case, the defendant argues that the plaintiff did not suffer from an injury to his back during the course of his employment. The defendant’s case is that any impairment to the plaintiff’s spine is degenerative and has not been aggravated by the nature of his employment with the defendant. The defendant argues that on the evidence, I should find that the plaintiff did not cease work on 21 August 2012 because of chronic back pain. It argues that the evidence shows that the plaintiff at that time was suffering from a psychological illness in the nature of anxiety and depression arising from the fact that his son had been killed in a transport accident which occurred on 19 October 2011. The plaintiff lodged a claim for traumatic shock, depression, anxiety and grief with the Transport Accident Commission on 7 December 2011.
14 In addition, the defendant argues that there were other psychological factors at play which caused the plaintiff to suffer from anxiety and depression right up until the time that he ceased work.
15 The plaintiff had married in the Philippines on 19 October 2010. He and his wife had a son born of that union in July 2011. Sadly, that child who was born in the Philippines, has suffered from Norris disease since birth and is blind. At the time that the plaintiff’s older son from another union, Lachlan, passed away in the transport accident on 19 October 2011, the plaintiff was in the Philippines assisting his wife and infant son. Lachlan was alone at home in Australia and had access to the plaintiff’s car. The plaintiff continually blamed himself for leaving the keys to the car accessible to Lachlan and blames himself for his death.
16 Because of these factors, the defendant argues that the plaintiff received a lot of psychiatric and psychological treatment and having successfully claimed compensation for loss of earnings under the provisions of the Transport Accident Act, the defendant argues the plaintiff and his legal advisors only turned their minds to compensation for a claimed injury to the plaintiff’s back when it became clear that the compensation being paid to the plaintiff from the Transport Accident Commission was about to be terminated.
17 Because of the way in which the trial of this proceeding was conducted by the parties, a critical issue raised by the evidence in this case is why the plaintiff ceased his employment with the defendant on 21 August 2012. The plaintiff is adamant that he ceased his work on this date because of his back pain.[1]
[1]See paragraph 29 of the plaintiff’s first affidavit and his evidence at Transcript (“T”) 9
18 The plaintiff has sworn two affidavits in support of his application on 31 March 2015 and 21 October 2016 respectively and they were part of a court book tendered by the plaintiff which I admitted into evidence as exhibit A (“PCB”).[2] The plaintiff also tended as exhibit B a computer printout from the Transport Accident Commission dated 6 October 2016 which detailed the payments made on behalf of the plaintiff for various treatments and payments paid to him or his former employer (the defendant) between 21 August 2012 and 18 October 2014. The plaintiff was called to give evidence in which he said that the contents of his affidavits were true and correct and he was cross-examined by Mr Middleton.
[2]T54
19 The defendant also filed a court book which I admitted into evidence as exhibit 1 (“DCB”).[3]
[3]T57
20 In his first affidavit, the plaintiff set out a number of matters relevant to his background which are not here in contention. He was born in October 1953 and is now sixty-three years of age. He left school at the age of fifteen, having completed Year 9. From what the plaintiff has said in his affidavit, it would appear that in his younger years, his family was dysfunctional. His mother died when the plaintiff was aged fourteen and his father was an alcoholic. He worked for a period of two years with his uncle as an apprentice cabinetmaker and was then out of work for a period of two years, at which time he commenced working for a company in Colac that restored old trucks. He was engaged in this work for about eight years.
21 When the plaintiff was nineteen or twenty years of age, he was injured in a motorcycle accident. On his own admission he deposed that he was drinking heavily and he sustained a drink driving conviction at the age of twenty-one. The plaintiff commenced his own panel beating business and during the course of this, he formed a relationship from which his son, Lachlan, was born in February 1988. The plaintiff separated from his partner in November 1988 but continued to see his son on weekends.
22 The plaintiff commenced work with Readymix Concrete, a predecessor of the defendant company, on 9 November 1989. When he commenced, he was engaged performing maintenance work, some of which included spray-painting trucks. Later on, the plaintiff was engaged driving gravel trucks for three or five months and then he worked in a crusher for two years. According to his first affidavit, in about 1992 or 1993, he commenced operating a face loader which is a vehicle used for the purpose of loading dump trucks with the rocks. The plaintiff deposed he had no recollection of having suffered low back pain or any injuries to his low back prior to the year 2000.[4]
[4]Plaintiff’s Court Book (“PCB”) 7, paragraph [9]
23 The plaintiff says that from 2000 onwards, he continued to drive the face loader and he says the work was “terribly demanding on my body”. He says he would drive the face loader into the rock face of the quarry which had previously been shot with explosives, in the result that the vehicle would come to a sharp sudden halt. He deposed the face loader would be violently jolted if the bucket struck solid rock with the face quarry. Also the floor of the quarry over which the face loader passed was uneven. It was also strewn with large rocks so that the driver was buffeted within the cabin of the machine. The plaintiff deposed that he discussed with his general practitioner, Dr Griffiths, the possibility of changing jobs to driving a truck because the face loader was, as he put it, “knocking me about”.
24 The plaintiff said in his first affidavit that he suffered from low back pain from 2003 onwards. The back pain varied in degree but it did not stop him working but he said he was having difficulty coping with the rough work involved in driving the face loader.
25 The plaintiff said that he lodged a WorkCover Claim Form for his low back pain in May 2003 but he could not recall having time off work at the time.
26 In January 2008, the plaintiff suffered an injury to his back when he tried to pull open a workshop door. He was diagnosed with a lumbar back injury and he had about two weeks off work on annual leave as a result of this 2008 incident. He saw Dr Hugh Seward at the Newtown Medical Centre on six occasions between 8 January 2008 and 28 May 2008 and during this time he returned to driving the face loader. He continued driving that machine for the next two or three years. He says that he did so whilst suffering low back pain.
27 On 1 July 2009, the plaintiff missed his step whilst alighting from the back of the loader and this caused an immediate increase in his low back pain. He deposed to having reported suffering low back pain as a result of operating the face loader on 12 July 2010 and later, on 3 December 2010.
28 The plaintiff continued working driving the face loader through January and February 2011 and took some leave in March of that year. For the next few months, he was involved trying to get a visa for his new wife, a Filipino lady, who had given birth to a baby son fathered by the plaintiff.
29 In August 2011, after having been off work for some five months, the plaintiff returned to duties with the defendant but this time driving a dump truck. Soon after he recommenced, he returned to the Philippines and during this trip he received the sad news that his son, Lachlan, had been killed in a car accident in Australia. The plaintiff, in his affidavit, says that this news devastated him and he has been grief stricken ever since.
30 In January 2012, the plaintiff recommenced working with the defendant again driving the face loader. In his first affidavit, the plaintiff deposes that when he first returned to work at this time, he immediately felt an increase in his low back pain but in March 2012, he suffered a flare-up of low back pain when he mistakenly lost his footing in the quarry.
31 In mid-2012, the plaintiff began to suffer swelling and pain in his left thumb.
32 In August 2012, the face loader machine the plaintiff had been driving for some time broke down and its replacement was a much older machine which was more difficult to control and operate. The plaintiff deposed:
“My back pain was shocking at the time. I had left thumb pain and I was still grappling with my son’s death.”[5]
[5]PCB 11, paragraph [25]
33 The plaintiff ceased work on 21 August 2012. He formally resigned his work with the defendant on 5 June 2013 and in his resignation letter, he noted he was resigning due to ill health from work-related back injuries.[6]
[6]PCB 11, paragraph [27]
34 In his first affidavit which was sworn on 31 March 2015, the plaintiff said that he was attending upon his general practitioner once every two or three months “for anxiety and stress problems, and also in relation to my back pain”.[7] He said that he was taking prescription drugs, Mobic (15 milligram), an anti-inflammatory, and Codalgin Forte (30 milligram), together with Clonazepam (0.5 milligram) for anxiety and depression “as well as helping me with my pain”. He said that he stopped taking Mobic because it upset his stomach. He said that he takes a Panadol Osteo tablet once or twice a week.
[7]PCB 11, paragraph [28]
35 In addition to coping with the death of his son in a car accident, the plaintiff’s infant son born in the Philippines was born blind, with an incurable illness. This doubtless placed the plaintiff under further anxiety and stress. The plaintiff sees two different general practitioners, one for his anxiety and stress and another for his back pain. He sees Dr Llave at the Otway Medical Clinic in Colac and Dr Conron at the Winchelsea Medical Clinic.[8] In cross-examination, the plaintiff explained how this came about:
[8]T16
HIS HONOUR:
Q:How did it come about that you went to two general practitioners? Did they suggest that or did you make a conscious decision to go to two different doctors?‑‑‑
A:No, well, I was seeing Llave about my nerves.
Q:Yes?‑‑‑
A:And I’d already seen Conron prior to that with my back.
Q:Yes?‑‑‑
A:So he said, ‘Well, keep seeing this fellow for your back and I’ll treat the other one.’
Q: Dr Llave said?‑‑‑
A: Yeah, yeah.”[9]
[9]T17
36 He deposed that he does not see his general practitioner about his back ailment very often because he has been told that there is very little that can be done for him and he says that he tries to avoid activities that he knows will aggravate his low back pain.
37 As to consequences of the claimed injury to his lower back, the plaintiff says that he takes Panadol Osteo and he has difficulty sleeping, at times lying in bed with one foot on the floor, which he says assists in relieving his low back pain. He deposed that he no longer does any housework:
“I might do a wash every now and again but I have difficulty bending over to pick washing out of the washing machine.”[10]
[10]PCB 12, paragraph [33]
38 The plaintiff has deposed that he cannot mow the lawn with a push mower and so he purchased a ride-on lawn mower. He is able to use a self-propelled lawnmower for brief periods for the areas of the lawn that he cannot get to on a ride-n mower. He cannot use a Whipper Snipper because it aggravates “my back pain terribly”.[11] He described how little things, such as rolling over in bed, are difficult for him. The plaintiff said he cannot sit for very long and he gets frustrated because he is unable to do a lot of the physical activities that he once performed. In his first affidavit, the plaintiff freely acknowledges having been affected by tragedies in his life in recent years but he said recently, he has been better able to deal with these problems.
[11]PCB 12, paragraph [34]
39 In his second affidavit sworn on 21 October 2016, the plaintiff deposed that he had to see Dr Macdonald about his back every three months and he was taking Celebrex two to three times a week and Serine on a weekly basis. He said he takes Panadol Osteo two to three times a week and uses white flower oil two to three times a week as a rub. He also uses heat patches weekly. He said the patches have a lasting effect for two to three days and relieve his back pain which he said never goes away and it increases if he tries to do too much and on occasions, he described the pain as being “quite severe”.[12]
[12]PCB 14, paragraph [2]
40 The plaintiff said that he wakes a lot at night and does not sleep well because of ongoing back pain. Bending and squatting or twisting will increase pain in his back and he tries to avoid such activities. He deposes that he can drive a car for an hour or so but not for prolonged periods which increase his back pain, as does sitting for a prolonged period. He is unable to do heavy gardening.
41 The plaintiff has not resumed any employment and says that he does not have the capacity to return to his old job or any employment because of ongoing back pain:
“… I couldn’t drive earthmoving equipment or do any job which required bending and lifting. … .”[13]
[13]PCB 15, paragraph [4]
42 The plaintiff has no other qualifications or experience other than performing heavy labouring work.
43 Because of the way this case was argued, it is important that I set out in full the final paragraph of the plaintiff’s affidavit, which is in the following terms:
“5.I have had family difficulties and in particular the death of my son but that does not now affect my capacity to work. If I didn’t have my back injuries I would be still working for the Defendant or doing similar sort of work because I have always enjoyed the employment and been someone who likes to be at work and to get on with things. I still have financial and personal responsibilities and I would be able to enjoy life more if I had a regular and proper income but I cannot engage in employment because of my back injuries.”
44 The plaintiff’s wife also swore an affidavit in support of the plaintiff’s application on 25 October 2016. She says that she first came to Australia on 9 November 2011 and the couple have two children with her son, Andrew, the firstborn, having suffered, and continues to suffer, with Norrie disease which is a condition that has caused him to be blind and mentally delayed and non-verbal and he may develop deafness later in life.
45 The plaintiff’s wife, in her affidavit, comments upon the plaintiff’s grief following the death of his eldest son which she said remained very intense for about three or four months after the death, during which time the plaintiff was off work. She deposes that when the plaintiff returned to work in January 2012, his back pain became worse and the plaintiff complained to her about it. She says that she performs most of the household tasks because of the problems the plaintiff has with his back. She also says that the plaintiff is now a lot better in terms of his grief and depression.[14] She was not called for cross-examination.
[14]PCB 19, paragraph [12]
46 The plaintiff was cross-examined by Mr Middleton QC, who appeared with Ms Manova on behalf of the defendant. When pressed, he repeated that he ceased work in August 2012 only because of his back pain.[15] He agreed that he had pursued a claim for compensation from the Transport Accident Commission (“TAC”) relating to the transport accident that resulted in the death of his son. He agreed that he received payments from the TAC for a period of two-and-a-half years.[16]
[15]T9
[16]T9
47 It is the defendant’s case that the plaintiff ceased work because of his grief and psychological reaction to the death of his eldest son. It is the defendant’s case that the plaintiff’s claimed injury to his back during the course of his employment played little if any part in the decision of the plaintiff to cease work in August 2012.
48 The plaintiff agreed that after he ceased work, he received weekly payments from the TAC amounting to around $700 per week. He agreed in cross- examination that in order to receive this, he had represented to the TAC that he was unable to work because of issues associated with the death of his eldest son.[17] The plaintiff agreed that initially after the death of his son, he had, in early 2012, returned to work, working a 40 hour week, sometimes 60 hours a week, at the quarry driving the face loader.[18] The plaintiff also agreed that when he was medically examined by psychiatrist, Dr Daniels, on behalf of the TAC in August 2013, he told Dr Daniels that he stopped working in August 2012 because he found himself breaking down in tears and could not concentrate and he felt that he was a danger to others on the road because of his inability to concentrate.[19]
[17]T10
[18]T12
[19]T12
49 The report of Dr Daniels which went into evidence as part of the defendant’s Court Book shows that in addition to telling the doctor of his difficulties with concentration, he also told him that he had a variety of work-related physical problems including a repetitive strain-type injury to his left hand and chronic lower back pain which he had had since approximately 2001.[20]
[20]T12 and Defendant’s Court Book (“DCB”) 73
50 In cross-examination, the plaintiff was pressed on what he had said to Dr Daniels. He agreed that he had told Dr Daniels that since 2001 he had fluctuating lower back pain. He agreed that he had also told the doctor that prior to his son’s death, he had tolerated these symptoms but that following his son’s death, he found these symptoms harder to deal with. He agreed that he felt some responsibility for his son’s death and this had continued to trouble him and he had other family matters relating to his ill son that continued to trouble him.[21]
[21]T13-14
51 The plaintiff agreed that apart from a period of physiotherapy consisting of about fifteen sessions in 2008, by August 2012, he was not having any ongoing treatment for his back-related problems. When pressed, the plaintiff agreed that he had told Dr Daniels that in August 2012, he was suffering from ongoing depressive symptoms and an increase in symptoms of anxiety. He had described to Dr Daniels weekly panic attacks and some agoraphobia.[22]
[22]T15
52 Dr Daniels first saw the plaintiff at the request of the TAC on 8 August 2012.[23] He saw the plaintiff for a second report approximately one year later, on 1 August 2013. Dr Daniels reported after his second assessment that the plaintiffs mental health had deteriorated in the twelve months between the assessments.[24] The plaintiff agreed that this was the case.[25] At transcript page 16 this exchange in dispute occurred between Mr Middleton and the plaintiff:
[23]DCB 63
[24]DCB 78
[25]T15-16
MR MIDDLETON:
Q:And then at 3, he says, ‘He describes attending the Royal Children’s Hospital for treatment and review of his son with Norrie Syndrome, but the care of his son appears to be a protective factor rather than an additional stressor.’ Do you understand what he was saying there?‑‑‑
A:Yes.
Q:Do you agree with it?‑‑‑
A:Yes.
Q:He describes lower back pain, left wrist discomfort that he believes also has contributed to him no longer working. So is that how it was back in August 13, that really the reason you weren’t working was because of the stress associated with the death of your son, rather than your back and your wrist?‑‑‑
A:It was a combination of all.
Q:As a consequence of this report you continued to receive payments from the TAC?‑‑‑
A:Yes.”[26]
[26]T16
53 It is from evidence like this that the defence argues that the real reason why the plaintiff ceased work was because of stress-related consequences from the plaintiff’s eldest son’s death in a transport accident, together with additional stress, or is caused by the illness to his infant son. The defendant argues that even if there were back-related issues at the time that the plaintiff ceased work, that they were only a part of a complicated combination of factors principle amongst the psychological factors.
54 The plaintiff was cross-examined concerning an attendance upon his general practitioner, Dr McDonald, on 3 December 2013. Dr McDonald practices where Dr Conron practices, he being the general practitioner that the plaintiff had consulted relating to his back issues. He agreed that he had told Dr McDonald that he had originally injured his back in 2003. He said that when he consulted Dr McDonald in 2013, the doctor had suggested that he undergo an MRI scan. When pressed however, he agreed that his solicitors, Stringer Clark, had requested that the doctor give a referral for this imaging.[27]
[27]T18-19
55 The plaintiff was cross-examined about a number of medical certificates certifying the plaintiff as being unfit for work because of a psychiatric condition and mental anxiety associated with his son’s death between the period of November 2011 and 31 August 2013. He said it was not true that he was not working for the reasons stated in the certificates. I infer from his evidence that in addition to the psychiatric condition and anxiety that he suffered, the plaintiff’s position is that he also had a problem with his lower back which, in his view, prevented him from working at this time.[28]
[28]T20; DCB 13 et seq
56 The plaintiff was asked about what his general practitioner whom he consulted for his psychiatric illness, Dr Romulo Llave, had said in a medical report dated 7 November 2012.[29] In that report, Dr Llave had said to the plaintiff’s solicitors:
“Mr. Louden suffered from an acute severe psychiatric illness, NOT a physical injury, following the death of his son in a transport accident on 19th October 2011. In his first medical consultation with me, on 24th November 2011, he was still in bereavement and was suffering from an acute situational crisis/adjustment disorder, that affected his activities of daily living and his work. He was subsequently referred for grief and loss counselling.
Months later, despite repeated counselling sessions, Mr. Louden’s mental state deteriorated. He is now suffering at times with severe depression, severe anxiety and agoraphobia with panic attacks. He is still presenting with an avoidant behaviour, of places and anniversary/events, of distressing thoughts, that will reignite his emotions.
Mr. Louden is still physically, mentally and emotionally distraught, with disturbed sleep and unfit to work. He is currently having ongoing counselling with Mr. Woodward. At this point, I cannot make any conclusion on the duration of illness or any impair[r]ment, while on treatment.”
[29]PCB 27
57 When asked to comment on the content of Dr Llave’s report, the plaintiff did not agree that he suffered from agoraphobia, as he understood it, but he otherwise agreed with the report. He implied that the report was incorrect if it is to be read as meaning that his psychiatric problems were the sole cause of his being unable to work.[30]
[30]T21
58 The plaintiff was asked about five consultations that he had with Dr George Gray at the Otway Medical Clinic between March and December 2014.[31] This is the medical clinic where the plaintiff had been receiving treatment from time to time from Dr Conron for his back-related problems and not the clinic at which Dr Llave was a practitioner. The plaintiff agreed that each of these consultations related to his depressive anxiety disorder with benzodiazepine dependence following the death of his son in a transport accident and other family stressors.[32]
[31]PCB 47 and T21
[32]T21
59 The plaintiff agreed that since he ceased work in August 2012, he has not had physiotherapy for his back.[33] He agreed that the last time he had physiotherapy was on ten occasions over a two-month period commencing in January 2008 from Dr Zampatti.[34] He also agreed that he had not received any hydrotherapy or osteopathic or chiropractic treatment.[35]
[33]T23
[34]T23 and PCB 35
[35]T23
60 The plaintiff was questioned about a number of visits to the Otway Medical Clinic between January 2008 when he saw Dr McDonald and October 2012 when he saw Dr Conron.[36] The clinical notes recording these visits record that the plaintiff complained about his back on only one visit, 25 September 2012. His other complaints as recorded by the various doctors were about psychiatric matters and the injury to his thumb. The plaintiff went to his solicitors, Stringer Clark, around 20 December 2012 and it was following the involvement of his solicitors that an MRI scan was arranged around 10 December 2013 which showed widespread degeneration to the lumbar spine.[37]
[36]T24-25
[37]T27
61 The plaintiff agreed that the practitioner’s notes of the visit that he made on 10 December 2013 correctly record that the reason for his visit was lumbar back pain but he received no prescription for medication.[38] The plaintiff agreed that apart from some visits to the Otway Medical Clinic which he was questioned about, he has received no other medical or therapy treatment for his back and the only medication he takes is Panadol Osteo.[39]
[38]T27
[39]T28
62 The plaintiff was examined by the Medical Panel after referral from a magistrate. The Panel gave its Opinion on 19 January 2015. In the Medical Panel’s opinion, the plaintiff was suffering from constitutional lumbar spondylosis, congenital lumbosacral spondylosis – and from a prolonged bereavement reaction and aggravation of pre-existing Anxiety Disorder. The Medical Panel added that in its opinion, the plaintiff’s employment with the defendant was not a significant contributing factor to the development of lumbar spondylosis, lumbosacral spondylosis or to a prolonged bereavement reaction or aggravation of pre-existing Anxiety Disorder. The Medical Panel was also of the opinion that the plaintiff “has no present inability arising from an injury, such that he is not able to return to work, either in pre-injury employment, or suitable employment”.[40]
[40]DCB 104-5
63 Dr Gray at the Otway Medical Clinic (where Dr Llave also practices) prepared a medical report dated 2 April 2015 that was written to the plaintiff’s solicitors. I set out the report in full:
“Unfortunately I am unable to provide the medical report as you requested. I have seen Dennis on several occasions: namely the: 24th March 2014, 16th April 2014, 23rd June 2014, 17th October 2014 and 8th December 2014. All these consultations relate to depressive anxiety disorder with benzodiazepine dependence as a result of the exacerbation of his anxiety, following the death of his son in a motor vehicle accident and other family stresses.
There is no review or care relating to his back being part of the main treatment, which has been designed to give psychological support in relation to stress and coping with drug mis-use concerns.
I have reviewed all the notes on his previous attendances to in-house psychologist, Allan Woodward and Dr Romulo Llave and other doctors of our practice, which reveal that his presentations are all related to grief, anxiety disorder following the death of his son and other complicated family relationships as well as his dependence on benzodiazepine’s (sic). I understand he has attended other doctors, Dr David Conron in Winchelsea, I presume dealt with back issues (sic). Part of the concerns with his care have been in relation to his attending multiple doctors in relation to his benzodiazepine use, which has been treated and monitored when he has visited this practice as well as providing psychological support for his anxiety disorder which has no reference in any records we have to his back injuries. Any mention of back injuries have been brief and passing by the patient, not being a major concern to him nor at several other consultations.”[41]
[41]PCB 47
64 The plaintiff was cross-examined about the clinical notes prepared by the psychologist, Mr Woodward, who he consulted with on about twelve occasions. He agreed that when he saw him on 10 April 2013, he was advised that the TAC would only fund one more session. He agreed that it was around this time that he decided to push his WorkCover claim but he added that it was not because his TAC benefits were about to cease.[42]
[42]T37 and T39
65 It was put to the plaintiff that based on the medical evidence and compensation claims lodged by him, that there were a number of relatively minor incidents where he claimed to have injured his back over the years that he had been in in the employment of the defendant:
Q:“Can I suggest to you that over the years that you’ve been employed with the defendant or its predecessor, you had reported an incident on 21 May 2003 of a low back strain while stretching – had a twinge in your lower back. Does that ring a bell with you?‑‑‑
A:Yes.
Q:The[n] on 7 January 2008, another incident report where you had a feeling of soreness in your lower back. That accord with your memory?‑‑‑
A:Yeah.
Q:Twenty-sixth May 2008, an incident report where you missed a step on a ladder, and you claimed you were fine, but you reported it just in case?‑‑‑
A:Yes.
Q:First July 2009, ‘A slight jar to the back when descending from the steps,’ I think of a truck?‑‑‑
A:Loader.
Q:‘Loader,’ yes. 12 July 2010, ‘Back sore after lifting a bucket.’ Remember that one?‑‑‑
A:No.
Q:Twenty-third March 2012, jarred your back when alighting face-loader?‑‑‑
A:M’hmm.
Q:Then you put in the claim in relation to this one, on 24 October 2012. You got a claim for, ‘Lower back, hit left thumb due to repetitive jarring and jolting as a result of driving a front-end loader’?‑‑‑
A:M’hmm.
Q:That you say, only occurred in August 2012. Is that right?‑‑‑
A:The thumb?
Q:No, the jarring?‑‑‑
A:It was all a constant jarring.”[43]
[43]T47-48
66 The plaintiff disagreed that the main reason that he ceased work in August 2012 was the grief associated with the death of his son. He said this was one reason, but not the only reason, inferring that he had ceased work because of other physical issues.[44]
[44]T48
67 The defendant’s case is that the plaintiff suffers from longstanding and pre-existing degeneration of the lumbar spine which is not work related. The defendant relies upon, in part, a report of orthopaedic surgeon, Mr Clive Jones. He first saw the plaintiff for the purposes of the defendant’s insurance agent on 27 November 2012.[45] When the plaintiff went to see Mr Jones, he took with him a series of x-rays of his lumbar spine made on 5 August 2003. Mr Jones examined these, which he said showed “a hypertrophic pattern of multi level degenerative change in most of the lumbar disc spaces”.[46] Mr Jones was of the opinion that the plaintiff’s problem is degenerative back pain which had been present for many years, with well documented radiological change. He thought clinical evaluation suggested very significant overstatement of the degree of disability present. Mr Jones was asked to give an opinion on the question of whether or not the kind of work the plaintiff was engaged in had contributed to his medical condition. Mr Jones was of the opinion that it was doubtful the plaintiff had been injured because of his work, and he added that the plaintiff was suffering from serious depression. He noted there was no specific history of any injury and “it seems unlikely that simply driving a loader even on rough surfaces could cause such an aggravation”.[47]
[45]DCB 85
[46]DCB 86
[47]DCB 87
68 Mr Jones re-examined the plaintiff on 8 October 2013.[48] On examination on this occasion, Mr Jones found little change. The muscular soreness was present all over the back up to mid shoulder blade level. The plaintiff was able to demonstrate 45 degrees of spine flexion, 60 degrees of leg raising and no abnormal neurological signs. He had a full range of movement in both hips and there was no evidence of osteoarthritic change.[49] Mr Jones was of the opinion that there was little change from the previous evaluation in November 2012 and he thought it was unlikely that there will be any significant change in the future. Mr Jones noted a number of claims for back symptoms over a ten-year duration allied with issues of depression related to the death of the plaintiff’s son.[50] Mr Jones was of the opinion that the plaintiff’s degenerative change was age related more than anything else. He added the plaintiff’s employment may have aggravated his back problem from time to time and “… I do not believe this constitutes permanent impairment. The cause of the worker’s current incapacity, which, unsurprisingly has not changed since he ceased work is lumbar disc degeneration.”[51]
[48]DCB 91
[49]DCB 92
[50]DCB 92
[51]DCB 93
69 Mr Jones saw the plaintiff on the third occasion on 22 September 2016.[52] When he examined the plaintiff, he found he undressed slowly but on this occasion, was able to walk more or less normally and dressed without difficulty. The plaintiff was able to demonstrate something like 45 degrees of spine flexion, with some reduced extension. There was normal leg raising, without restriction, and all lower limb reflexes were present and of equal amplitude. Power and sensation were normal. Clinically, the plaintiff demonstrated a full range of movement in both hips without restriction.[53]
[52]DCB 95
[53]DCB 96-97
70 An MRI scan of the lumbar spine in December 2013 reported marked narrowing of disc spaces, with posterior bulging at L4-5 and L5-S1. There were large vertebral end plate osteophytes. The L5–S1 nerve roots were said to be not involved. There was degenerative change in the facet joints at these two levels.[54]
[54]DCB 97
71 Mr Jones said the plaintiff has degenerative back pain which he thought to be “somewhat exaggerated”. He was of the opinion that the plaintiff has not had any significant injury to either hip. Mr Jones thought the degree of spinal stiffness and levels of pain appeared to be “somewhat exaggerated”.[55] Mr Jones went on to say that there are significant psychological factors affecting his ability to return to work and, that these appear to be related to the loss of his son as a result of the motor vehicle accident.[56]
[55]DCB 97
[56]DCB 98
72 Mr Middleton submitted that the opinion of Mr Jones is supported by the documentary history which showed that the plaintiff had experienced a number of episodes of back pain related to specific incidents over a period of about ten years. Each incident had resulted in some short-term treatment and quick abatement of symptoms consistent with aggravation at different times of the lumbar disc degeneration. On 21 May 2003, the plaintiff reported a twinge in his lower back whilst getting out of a loader. He was prescribed Vioxx and physiotherapy and when he was reviewed by his general practitioner on 27 May 2003, his back had “much improved with physio”.[57] When reviewed on 17 June 2003, his general practitioner recorded “only occasional back pain now”.[58] He was discharged from physiotherapy treatment after ten sessions.[59]
[57]PCB 34-35
[58]PCB 34
[59]PCB 35
73 On 8 January 2008, the plaintiff was seen by his general practitioner when he was complaining of pain in the right lumbar region which he said had commenced the previous day at work. He attended on six occasions between January and May 2008.[60]
[60]PCB 38
74 The plaintiff consulted with orthopaedic surgeon, Mr Roger Westh, for medico-legal purposes on 12 August 2016.[61] Mr Westh had previously assessed the plaintiff for the purposes of giving an opinion in relation to impairment related to his left hand on 22 March 2013.[62] The left hand impairment is not relevant in this proceeding. Mr Westh gave an opinion that the plaintiff developed low back pain over a number of years during the course of his employment with the defendant. His opinion was that the plaintiff suffers from chronic lumbar back pain with aggravation of degenerative changes in his lumbar spine.[63]
[61]PCB 90
[62]PCB 87
[63]PCB 91
75 The plaintiff was seen by Mr Michael Epstein, a psychiatrist, for medico-legal purposes at the request of his solicitors on 6 March 2013.[64] In summary, his opinion was as follows:
[64]PCB 50
“[The plaintiff] has developed a Major Depressive Disorder of moderate severity with panic attacks mainly contributed to by distress about the death of his son associated with guilt for not having been able to prevent this unnecessary accident. His level of depression has also been contributed to by concerns about his younger son’s condition and worries about what will happen to his younger son in the future. This situation has occurred in the context of him having developed a work-related back injury and subsequently a work-related left thumb injury which have been major factors forcing him to cease work and for which he has made a WorkCover claims.
All these factors have been contributing to his level of depression. His panic attacks appear to have arisen solely out of his son’s death and ongoing concerns and distress about that.
He has had appropriate psychological counselling that should continue for at least the next twelve months.
It is now sixteen months since his son’s death and, in my view, his condition is not yet stable. It is difficult to tease out those factors arising from his son’s death and other factors. He should be reviewed in a further 12 months[’] time.
His work capacity has diminished as a result of his son’s death but the major factor leading to him leaving work has been his physical condition arising from factors due to his employment.”[65]
(sic).
[65]PCB 57-58
76 Mr Epstein reviewed the plaintiff for the purposes of a joint medical examination on 7 July 2014. The review was carried out in relation to the plaintiff’s TAC claim.[66] In his report following this joint examination, Mr Epstein gave this opinion in summary form:
“It continues to be my view that he has a Major Depressive Disorder of moderate severity with Panic Disorder and Agoraphobia arising out of the circumstances surrounding the death of his son in a transport accident on 19 October 2011. On this occasion I was more convinced than previously of the extent of his depressive disorder. This interview proceeded very differently from the previous two interviews. He was a very vague, tangential historian who tended to be prolix and seemed to be wandering around in various compartments of his mind producing whatever was there but this had little bearing on the questions that were being asked. He spoke in a dull monotone and was extremely tedious to interview. This was in some contrast to how he presented previously and indicated to me that his level of depression has probably become much worse. He is not having any psychological counselling for the reasons described above but in my view needs assessment by a psychiatrist and a review of medication. There may be some other explanation for his cognitive decline, it would be useful to have a neuro psychological assessment.
His condition appears to have deteriorated significantly since I last saw him. He continues to have ongoing back pain that he says has become worse but this does not seem to have led to any increase in his level of impairment. There are still health issues with his son but as Dr Daniels stated the care of his son appeared to be a ‘protective factor rather than an additional stressor’.
…
His condition is now stable in the absence of psychiatric treatment and at present his prognosis is poor. He is unable to return to work in part because of his back condition but primarily because of his mental state. Given the way he dealt with this interview he could not cope with any employment situation. He is not suitable for his pre-injury employment or any suitable employment and his quality-of-life has diminished markedly. The major factors leading to this situation appear to have arisen from the mental illness experienced as a result of the death of his son in a transport accident on 19 October 2011.”[67]
[66]PCB 60
[67]PCB 66-67
77 Mr Epstein saw the plaintiff on the fourth occasion on 12 August 2016 at the request of his solicitors.[68] On this occasion, he found the psychological and psychiatric condition of the plaintiff to be much improved. He gave this opinion:
[68]PCB 69
“When I last saw him on 7 July 2014 I thought he had a Major Depressive Disorder of moderate severity with Panic Disorder and Agoraphobia arising out of the circumstances surrounding the death of his son in a transport accident on 19 October 2011.
On this occasion, however, there is no manifestation of his conditions. He does not have any symptoms of a Post Traumatic Stress Disorder or of a Major Depressive Disorder. This is surprising.
As he described his current situation he has chronic back pain that occasionally gets him down and limits his activities but his life is generally good. He is frustrated that his WorkCover claim has not been accepted.
From a diagnostic point of view he now has a mild chronic Adjustment Disorder with depressed mood as a consequence of ongoing pain, discomfort and disability from his back condition. As he describes his situation there are no current psychiatric issues with regard to his son’s death. In other words there has been a dramatic improvement in his mental state since he was seen in July 2014. Nevertheless, as he describes his current situation, there is no need for him to have any psychiatric or psychological treatment or counselling. He takes medication only very intermittently. His quality of life is only limited by his back pain and to a lesser extent the problem with his left thumb.
He does not require any psychiatric or psychological treatment or counselling. It is pleasing that there has been such a dramatic improvement in his mental state. His mental state does not prevent him from returning to work in any capacity.”[69]
[69]PCB 77
78 Mr Middleton submitted that the opinion of Mr Westh was consistent with the opinion of Mr Jones.[70] Mr Middleton added that all of these opinions were consistent with the opinion of the Medical Panel which I referred to earlier.[71] Mr Middleton noted that the Medical Panel had before it the plaintiff’s medical reports and the defendant’s medical reports, as well as its own examination. It also has the technical records of both of the plaintiff’s general practitioners as the Otway Medical Centre and the Winchelsea Medical Centre.[72]
[70]T64
[71]T65
[72]T66
79 Mr Middleton submitted that on medical grounds, the plaintiff had failed to establish that he suffered a serious injury during the course of his employment with the defendant. He noted the plaintiff could not point to any incident which resulted in him suffering an aggravation to his pre-existing degeneration having occurred in August 2012. He submitted that the overwhelming evidence, and based on the materials by the plaintiff to the TAC, suggest the plaintiff ceased work in August 2012 because he suffered from depression and grief consequent upon the unfortunate death of his son in a transport accident.
80 Mr Middleton submitted that the plaintiff has had no chiropractic or physiotherapy treatment for any claimed back injury or aggravation since August 2012.[73] Further, no general practitioner has referred the plaintiff for specialist opinion, either orthopaedic or neurological.
[73]T66
81 Mr Middleton submitted that there is no evidence of any general practitioner having prescribed medication for back pain. The plaintiff may take Panadol Osteo but there is no evidence in the clinical notes of this having been prescribed. He submitted that when one examines the clinical notes of the various practitioners, there is little, if any, evidence of complaint of back pain.
82 The defendant’s case is that the evidence shows that the plaintiff ceased work in August 2012 suffering from acute severe psychiatric illness, and in this regard it relies upon the report of 5 September 2012 from the plaintiff’s general practitioner, Dr Llave.[74] The defendant relies upon the medical certificates provided to the plaintiff from his general practitioners which show from August 2012 and for a period of more than twelve months thereafter, the plaintiff was incapacitated for work because of his mental health.[75]
[74]PCB 27, T69
[75]T70
83 Mr Middleton relied upon the report of the plaintiff’s general practitioner, Dr Gray, that I have previously referred to, as evidencing that the prime focus of treatment from Dr Gray’s clinic was the plaintiff’s mental health related to the death of his son in a transport accident.[76]
[76]T71
84 In submissions, Mr Fehring argued that the plaintiff suffered an aggravation of degenerative disease of the lumbar spine, the aggravation having commenced with the incidents in 2002-2003 until he ceased work in 2012. The consequence he argues was the plaintiff was unable to continue with his employment. Mr Fehring submitted that because of his condition, the plaintiff is unable to return to his former occupation and because of his limited work skills, there is no suitable employment available to him.[77] Mr Fehring submits that the consequence that the plaintiff is no longer able to engage in suitable employment for which he is qualified means that he has suffered from a serious injury within the meaning of the Act.
[77]T90
85 Mr Fehring relied upon a number of instances that have been documented by general practitioners of the plaintiff having complained of aggravations to his back degeneration since 2002. I have referred to those instances above. Mr Fehring conceded there was no incident or complaint, with the plaintiff having aggravated his pre-existing lumbar disc degeneration in or around August 2012.[78] Mr Fehring put the plaintiff’s case this way:
MR FEHRING:
Our submission is that he finally ceases work in 2012, as a result of the accumulative process of heavy or difficult work, whatever way you want to describe it. That he finally decides then, ‘I cannot continue in this job and I’m resigning and ceasing work,’ which he does on 28 August. But there is no jarring event, there’s no door, there’s no falling over, no particular event, which finally put’s him off work. There had been a number from time to time; some of them no significance, some of them he’s had minor treatment such as the physiotherapy we’ve been to. The only point of that – and Your Honour’s task – is that these matters, which I’ve just taken you to, indicate the commencement of his difficulties are about 2003 and it has continued on since that time, slowly getting worse, due to the nature of his employment. No specific event - has ever said, ‘That’s it, I’m giving up. I can’t go on anymore, because I’ve now done my back in.”[79]
[78]T94
[79]T94-95
86 Mr Fehring relied upon the medical opinion of Mr Westh, who diagnosed the plaintiff’s injury that he suffered in the course of his employment as “a chronic lumbar back pain with aggravation of degenerative changes in his lumbar spine”.[80] I do not accept the opinion of Mr Westh in this case. It comes after an examination very late in the chronology and only after the plaintiff had decided to commence this application. It is not supported by any treating general practitioner, none of whom saw the need to refer the plaintiff for specialist orthopaedic opinion. It is inconsistent with the opinion of the Medical Panel. I prefer the opinion of Mr Jones, which is consistent with the opinion of the Medical Panel.
[80]PCB 90
87 He submitted that the plaintiff obviously developed a Major Depressive Disorder following the death of his son in the transport accident; however, relying upon the final report of Dr Epstein, Mr Fehring submitted the evidence shows the plaintiff has largely recovered from this and his impairment now relates entirely to his aggravation of pre-existing degenerative change in his lower back.[81]
[81]T113
88 After having analysed all of the evidence, I have formed the opinion that the plaintiff’s application for leave to commence a proceeding claiming damages for pain and suffering and loss of earning capacity must fail.
89 The plaintiff bears the onus of proving that he suffered from an aggravation of his pre-existing lumbar spine degeneration during the course of his employment. It is the aggravation that must constitute the serious injury, in the sense that the aggravation must produce impairment consequences that amount to a serious injury within the Act. There were reported and documented instances of back injury in 2002, 2003 and 2008, none of which either alone or in isolation could be said to have amounted to a serious injury. There were limited consequences for the plaintiff following each of these occurrences from which he made a full recovery after limited conservative treatment which included sessions of physiotherapy. But there is no proper evidence that the plaintiff suffered an aggravation of a pre-existing lumbar disc degeneration over a period of about ten years that produced the consequence that the plaintiff is now unable to work only because of that aggravation. The best evidence is he was working in August 2012 and he was forced to cease work because he developed a Major Depressive Disorder as a consequence of his son’s death. I do not accept he ceased work because of his back condition or that it produced consequences that he was forced to cease work.
90 This case was fought on the basis that the plaintiff’s back condition resulted in the consequence that he could no longer work. The plaintiff’s case is that there were other consequences also caused by his chronic low back pain which have affected aspects of his daily life. Driving cars and attending to household tasks are but some. Whilst I accept the plaintiff suffers from some pain as a consequence of degenerative change in his lower back, these consequences are not of a kind that would justify a finding of serious injury.
91 Sadly, the plaintiff’s son was killed in a transport accident in October 2011. The plaintiff worked following this but ceased work in August 2012 and he resigned in June the following year. The reason why he ceased work in August 2012 I find was he developed a Major Depressive Disorder following the death of his son for which he made a claim under the Transport Accident Act. The consequence of having developed a Major Depressive Disorder was that the plaintiff could not work. He was paid compensation for loss of earnings from the TAC until October 2014.
92 There is no evidence of any incident which caused any aggravation of the plaintiff’s lumbar disc degeneration having occurred during the course of the plaintiff’s employment after 2008. Since that time, there is very little evidence of the plaintiff having complained of injury to his back at work or of having aggravated his pre-existing back condition at work to the general practitioners. He has not been referred by any of his general practitioners for specialist review because of any concerns for a chronic back condition or injury and he has not been prescribed medication for this complaint. I accept from time to time the plaintiff takes Panadol Osteo which he can purchase without prescription.
93 In my view, the evidence shows that from August of 2012, the plaintiff has been treated by his general practitioners for matters primarily related to his depression and mental health. I accept the evidence shows that he suffered from a Major Depressive Disorder which had the consequence that he could not work. I accept the submissions of the defendant and the opinion of Mr Jones that the plaintiff has a pre-existing lumbar disc degeneration. I do not accept the evidence shows this was aggravated during the course of his employment with the defendant to such an extent as to cause a consequence that he is no longer in his pre-August 2012 employment. In my view, this is a consequence that can be attributed to psychiatric and psychological factors.
94 I do not accept the most recent report from Mr Epstein that the plaintiff has now recovered from his Major Depressive Disorder to such an extent that his psychiatric state is no longer the cause of his being unable to work which he now attributes to the plaintiff’s back condition. I note that Dr Epstein was surprised by the turnaround in the plaintiff’s psychiatric condition, describing it as “dramatic”.[82] This finding is at odds with his earlier reports. It is also at odds with the psychiatric report of Dr Daniels of 1 of August 2013, who described the plaintiff as suffering from a Chronic Adjustment Disorder with Depressed Mood and Anxiety.[83] On any view, given the various opinions of the plaintiff’s psychiatric condition prior to 2016, it is difficult to understand how the diagnosed condition/s could have resolved to the extent that Dr Epstein says they have, without the plaintiff having had any psychiatric or psychological treatment. I do not accept the opinion of Dr Epstein in his report of 12 August 2016.
[82]PCB 77
[83]DCB 77
95 I accept the submissions of the defendant generally that the plaintiff’s case which relies upon an aggravation over a period of about ten years to a pre-existing lumbar disc degeneration gained momentum only after it became clear that the TAC was going to cease making payments to the plaintiff. In my view, the plaintiff’s case is a re-construction not supported by the evidence and must fail.
96 For these reasons, the Originating Motion is dismissed.
97 I will hear the parties on the question of costs.
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