Malloy v Frigrite Refrigeration Pty Ltd
[2009] VCC 378
•20 April 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-07-04143
| BRETT MALLOY | Plaintiff |
| V | |
| FRIGRITE REFRIGERATION PTY LTD | Defendant |
---
| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23, 26 & 27 February 2009 |
| DATE OF JUDGMENT: | 20 April 2009 |
| CASE MAY BE CITED AS: | Malloy v Frigrite Refrigeration Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0378 |
REASONS FOR JUDGMENT
---
Catchwords: Serious injury application; s.134AB Accident Compensation Act 1985; leave sought for pain and suffering and loss of earning capacity; claim under para (a) of definition in respect of right wrist and back; whether dependency on opiate-based medication cause of cessation of work; whether opiate dependency a consequence of organic injury; whether consequences of organic injury permanently “serious”.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Kennan SC with | Slater & Gordon |
| Mr A MacNab | ||
| For the Defendant | Mr P Elliott QC with | Minter Ellison |
| Mr G Coldwell | ||
| HER HONOUR: |
1 Mr Brett Malloy was employed for some 11 years by the defendant, commencing as a steel polisher and then becoming a guillotine operator. He claims to have suffered two injuries during the course of that employment for which he seeks leave to bring proceedings for damages. To do so he must satisfy the court that he suffered a “serious injury” within the requirements of s.134AB of the Accident Compensation Act 1985 (“the Act”).
2 It is not seriously disputed that Mr Malloy suffered an injury to his right wrist on 30 March 2001, and an injury to his low back on or about 21 June 2001, both in the course of his employment duties. He has not worked since June 2005. He relies on part (a) of the definition of “serious injury”, seeking to establish that he suffered permanent serious impairment of the function of his right wrist, and permanent serious impairment of the function of his low back, and that each satisfies the requirements as to pain and suffering, and as to loss of earning capacity. The consequences of both injuries cannot be aggregated, so each injury must be considered separately, as to whether it meets the requirements to be a “serious injury”. On the other hand, it is sufficient in respect of each injury that it is a material cause of a level of incapacity that satisfies the definitions, and need not be the sole cause of the plaintiff’s degree of disablement[1].
[1] Grech v Orica Ltd [2006]VSCA 172
3 The defendant argues that neither injury has resulted in permanent consequences that meet the test of being “more than significant or marked” and “at least very considerable”[2] when judged in comparison with other cases in the range of possible impairments[3] . In particular, it argues:
[2] Section 134AB(38)(c)
[3] S 134AB (38)(b)
•
The wrist injury was adequately treated with surgery and there are no lasting organic reasons for ongoing pain;
•
Any ongoing disability in the wrist does not incapacitate Mr Malloy for work, or at least not from full-time duties not requiring repeated dexterous use of his right hand;
•
There is no ongoing organic injury to his lower back causing significant pain;
•
Any back pain still experienced by the plaintiff does not require large doses of strong medication and particularly not opiate-based medication;
•
The plaintiff is not disabled from work as a result of any organic injury to his back;
•
The plaintiff has become dependent on strong medication which is a psychological or psychiatric condition not consequent on his physical injuries and which in any event is not permanent.
•
It is the plaintiff’s dependency on medication which has caused any incapacity for work since mid-2005.
4 Documents were tendered in evidence as set out in the attached Schedule. The plaintiff and his two current treating doctors - his general practitioner, Dr David Senini, and his orthopaedic specialist, Mr Max Wearne - gave oral evidence having been required to attend for cross examination by the defendant.
Plaintiff’s personal circumstances and background
5 Mr Malloy was born on 17 March 1963, and is now aged 46. He left school after the equivalent of Year 9, and except for a short time when he and his twin brother in their teens attempted to run a business together, he was employed for most of the subsequent years at manual work - as a storeman, driver, labourer and machine operator. He had commenced employment with the defendant in February 1994 as a steel polisher, then became a guillotine operator in the defendant’s press shop which manufactured refrigeration containers for supermarkets. His twin brother also worked there, and had become a supervisor.
6 Mr Malloy is single and lives with his 83 year old mother. He had no prior history of significant illness or injury. His main hobbies were ten pin bowling, and following and going to horse races. He says he enjoyed dining out. He used to do the garden and other household maintenance tasks at his mother’s home. He was right hand dominant.
Right wrist injury
7 Mr Malloy’s job required him to move large and heavy steel sheets from racks onto a cutting table and then, with the assistance of a co-worker, to push the table to the guillotine. On 30 March 2001 he experienced severe sharp pain in his right wrist as he was manoeuvring a large heavy sheet of steel to the table from the guillotine. He reported the incident and later that evening consulted a general practitioner, Dr McLean.
8 Dr Mc Lean advised him to continue at work, restricted to left-handed duties, and arranged an x-ray and ultrasound of his right wrist, and subsequently referred him to Mr Webster, plastic and reconstructive surgeon. Mr Webster noted that the ultrasound demonstrated a ganglion, for which he recommended commencing with conservative treatment. He gave a cortisone injection into the wrist, which provided short-term pain relief but over time the right wrist symptoms worsened, and on review in January 2002 Mr Webster noted a more clearly defined painful dorsal wrist ganglion, and recommended surgery. On 12 June 2002 Mr Webster operated to remove the ganglion. He noted obvious intra-articular and intra-carpal synovitis in the scapho-lunate joint which he considered explained all of the plaintiff’s discomfort in the wrist, and attributed to his employment[4].
[4] Exhibit L
9 Following the surgery, however, Mr Malloy made slow progress and developed an extremely stiff wrist with an inability to fully flex the wrist. He was off work for about 5 weeks, and his attempts to return to work using the wrist in any significant way resulted in complaints of pain and inability to grip. He wore a wrist splint most of the time. Mr Webster noted that since November 2002, Mr Malloy had been at his workplace in various roles but whenever he was put in a role that involved significant repetition or heavy gripping, he experienced local swelling, increased pain and was unable to maintain the role.
10 In October 2003, Mr Webster referred Mr Malloy to Mr Stephen Tham, hand specialist. Mr Tham’s considered that the stiffness in flexion and pain was likely to be due to adhesive capsulitis of the dorsal capsule of the radio-carpal joint.[5] In July 2004 he carried out an arthroscopic capsulotomy to relieve adhesive capsulitis which he believed had resulted from the surgical ganglion excision. He found mild synovitis at the pre-styloid recess and debrided that area.
[5] Exhibit M
11 So far as ongoing treatment was concerned, Mr Tham supported continued use of a splint including a replacement for the one he had been wearing and was wearing out. He also supported hand therapy. Mr Tham wrote to the plaintiff’s then general practitioner, Dr Turnbull, recommending certificates for alternative duties for the next three months and stating that Mr Malloy should then consider returning to normal duties.[6]
[6] Exhibit 22 - Letter is dated December 2005 but this would seem incorrect.
12 Mr Malloy did return to work in late 2004, on modified duties, to a job on the night shift at a copper coil machine. At this he earned higher wages than his pre-injury job, because of the night shift loading. He says that he could press the operating buttons with his left hand, but could not perform the full duties normally required of an operator at this machine as he could not load the copper coils and this was done for him by his brother.
13 The employer put him off work in June 2005 due to the perceived risk to himself and others of his operating machinery under the effect of the drugs he was taking. He seems to have complained that he should be allowed to continue at this job, but did not succeed. He has not worked since. His employment with the defendant was formally terminated in mid 2006.
14 Mr Graham Peck had examined the plaintiff for the defendant in May 2004, but did not support the capsulectomy proposed by Mr Tham. Having read a report from Mr Tham he said he found greater degree of movement in the right wrist than Mr Tham apparently had, but he also queried whether simply excising a ganglion would lead to the degree of adhesive capsulitis that could cause the symptoms complained of, and did not believe a capsulectomy would achieve a better result, but he did recommend obtaining Mr Webster’s operation notes[7].
[7] Exhibit 6
15 In April 2006, Dr David Sennini, a general practitioner whom Mr Malloy had first consulted on other matters in 2005, took over treatment of the plaintiff’s right wrist condition, and has been the primary treating doctor for that condition ever since. Although aware that Mr Malloy had a back injury, Dr Senini did not address its treatment as Mr Malloy wanted to continue to attend Mr Max Wearne for his back. Dr Senini was also aware there had been surgery performed on the plaintiff’s wrist in 2002 and again in 2004 – that of Mr Webster and Mr Tham – and believed from the plaintiff that there had been prescription of strong analgesics in the meantime.
16 In late 2006, Dr Senini started prescribing the opiate-based drug oxycodone, as OxyContin (slow release) and OxyNorm (immediate release). These were a considerably stronger form of pain relief than the drugs that had been previously prescribed, and although they have been varied over the intervening years and, in particular, Mersyndol Forte (codeine based) has been used, Dr Senini has continued to prescribe those medications for the plaintiff for the pain of which he complains in his right wrist, and being aware that it would also be relieving any back pain.
17 On cross examination Dr Senini confirmed that there has been no organic explanation for Mr Malloy’s ongoing complaints of pain in his right wrist, and that Dr Senini is prescribing the medication because of Mr Malloy’s demand for it by complaints of severe ongoing pain, aggravated by use of the hand, and increasing when medication is decreased. Dr Senini agreed that long- term prescription of these drugs for conditions where there is non-malignant chronic pain is not recommended in the literature which he had supplied with his reports. He also revealed that there have not been permits under the Drugs, Poisons and Controlled Substances Act for these drugs, which he said should be sought if they are to be prescribed for longer than about 3 months[8].
[8] T 121
18 Under Dr Senini’s care, Mr Malloy was referred for further specialist opinion about his wrist to Mr Damien Ireland, hand specialist. In November 2006 Mr Ireland noted[9] little to find on examination of the right wrist other than limited palmar flexion, with the grip on the right in fact stronger than on the left – 35 kilograms compared with 25 kilograms. He noted that Mr Malloy’s condition may be a “learned pain pattern”. He injected the wrist with cortisone and local anaesthetic to try to determine whether or not there was an intracapsular cause, and recommended that another extracapsular injection might be worth trying, but was of the view if neither helped then the pain pattern was probably unrelated to the wrist.
[9] Exhibit 25
19 In December 2006 Mr Ireland reviewed Mr Malloy noting that he had been pain free for three weeks after the intra-articular steroid injection, but complained that his pain had then recurred to its pre-injection level of intensity. Mr Malloy had said that on balance he thought his wrist pain was worse than his back pain. On examination Mr Ireland noted that it was difficult to localise any pathology in the wrist and noted a near full range of motion and a normal grip strength and no swelling but with tenderness over the lunate. Mr Ireland ordered a bone scan to try to determine whether or not there was an area of localised increased uptake, and whether or not this was a soft tissue or a bony problem. He noted that it was difficult to treat the pain empirically without a diagnosis.[10]
[10] Report 19 December 2006
20 In mid January 2007 Mr Ireland reported that the bone scan had failed to show any localised cause for Mr Malloy’s right wrist pain in either the soft or bony tissues. His opinion was that this, combined with a near normal range of motion and grip strength, precluded any benefit from surgery. He recommended referral of Mr Malloy to a chronic pain management clinic.[11]
[11] Exhibit 25
21 In October 2006 Dr Terrence Lim, a consultant in rehabilitation and pain medicine, saw Mr Malloy in respect of his right wrist and lower back, on the referral of Mr Peter Wilde. In relation to the persistent pain in the dorsum of his wrist, Dr Lim was of the opinion that it was by then due to the development of a local area of central sensitisation – central nervous system pain pathway sensitisation. Dr Lim described this as meaning that there was an organic change in Mr Malloy’s pain system that had effectively lowered his pain threshold effecting that part of his anatomy so that he was primed not only to suffer chronic pain but prone to suffer from spontaneous flares of increased pain. He noted that Mr Malloy was under the misconception that he was going to treat his condition and fix his pain, and further that although he had explained that chronic pain is not curable but is manageable through a program of knowledge and acquisition of skills to become his own pain therapist and manager, Mr Malloy was convinced that medications were what was required. Dr Lim was not hopeful of Mr Malloy gaining much from a chronic pain program because he lacked meaningful goals, such as a return to some form of work or occupation to use his time. He provided Mr Malloy with the Hopetoun Chronic Pain Rehabilitation Program brochure.[12]
[12] Exhibit N
22 A series of medico-legal reports were provided to the defendant about the plaintiff by Professor John Hart, clinical associate professor of surgery and consultant orthopaedic surgeon. On first assessment in September 2005, he was given a history that the onset of pain in the dorsum of the right wrist was gradual from pulling steel sheets, and he also took a history that the surgery to remove the ganglion from that wrist was performed by Mr Webster in June 2001. Otherwise he was aware that the second surgery by Mr Tham was to release scar tissue in the wrist but did not bring about much improvement, and that since then there had been no further active treatment but a wrist splint was continually worn. Medication at that stage was Mersyndol Forte, two to four times a day. On examination Mr Hart found extension of the wrist to 70 degrees and flexion to 50 degrees, and the right forearm circumference was one centimetre greater than the left. His opinion was that the injury was a dorsal ganglion which had been treated by excision resulting in some stiffness of the wrist and Mr Malloy still had mild residual wrist stiffness as a result of this injury. He considered Mr Malloy had capacity to undertake his pre-injury employment, but did have mild residual stiffness of his right wrist that may be permanent, but that did not require any treatment[13].
[13] Exh 16 – report of 29/9/05
23 In a further report in October 2005 Professor Hart stated that he had not discussed a detox program with Mr Malloy and it was not an expression he used. His view was that Mr Malloy did not require the regular ingestion of analgesics, such as Mersyndol, and he did not consider such medication appropriate for him.
24 In August 2008 Professor Hart re-examined Mr Malloy. He was aware of Mr Damian Ireland’s injection into the wrist without noticeable effect on the symptoms, and also of the bone scan which was normal. Mr Hart noted that Mr Malloy complained of constant pain aggravated by gripping with his right hand, that he did not try to lift with his right arm, and was not complaining of locking or clicking in the right wrist. He had available a large number of reports from treating doctors and medico-legal opinion. By then the list of medications included OxyNorm and OxyContin and Mersyndol Forte, as well as anti-depressants, Endep and Somac, and a sedative and Quinine. Professor Hart’s opinion was that Mr Malloy was essentially unchanged as to both his wrist and back since last examination, and that, excluding the psychological and psychiatric consequences of his injury, he was fit for physical work.
25 Professor Hart’s view was that although Mr Malloy had not recovered full plantar flexion in his wrist, and would therefore be limited in activities which involved repetitive use of the right upper arm, particularly involving the wrist joint, he did have a capacity to return to his previous work as a machine operator with the restrictions against repetitive movements or lifting with his right arm. He agreed with most of the medical opinion that Mr Malloy did not have a current work capacity because of his psychological problems and his drug intake, and that until the situation of his apparent addiction to analgesics and anti-depressants could be reversed, it was unlikely that he would be able to return to the workforce. He considered that his current work incapacity was indefinite having remained unchanged over a three year period that he had seen him. He also concluded that it was possible that the limited motion in his right wrist could lead to arthritic changes in the wrist, although he would expect that would take a considerable time to develop and it was probably related to capsular scarring from his ganglion surgery.[14]
[14] Exhibit 16
26 In September 2007 Mr Murray Stapleton, hand specialist[15], confirmed that from the history there had been an injury suffered at work, and also noted from lack of sun exposure on the skin that Mr Malloy was probably still wearing the wrist splint constantly. He noted wrist movements limited, particularly in flexion, but stated he had no way of knowing whether they were genuine. He found the power of grip on the right 50 per cent diminished compared with the left. His opinion was that the injury appeared to be a capsular injury involving the dorsum of the wrist giving rise subsequently to chronic capsulitis of the wrist joint. If the presentation was genuine he was unable to perform pre-injury duties and long-term permanent restrictions would apply, but if his wrist were his only problem he would be able to perform such modified duties. He was of the view that the back injury, on which he did not feel qualified to comment, was what was limiting his capacity to work full- time.
[15] Exhibit 15
27 Medico-legal opinion by Mr Clive Jones[16] in relation to the wrist, was that the condition was one of ongoing wrist pain following surgery, the cause of which was not altogether clear. He believed the condition had stabilised and was permanent.[17]
[16] 6 May 2007, Exhibit 12
[17] Exhibit 12
28 Dr Mary Wyatt[18], occupational physician, also noted limitation of a range of movements of the wrist, particularly in palmar flexion, with some mild tenderness over the dorsal aspect of the wrist joint. She considered the exact nature of the wrist problem was not clear at the point she saw him, although probably resulted from the development of scar tissue following the surgery. She believed him fit to return to restricted duties without forceful grasping and gripping with the right hand. In September 2007, with a large group of other medical reports available to her, Dr Wyatt noted that Mr Malloy continued to complain of soreness in the right wrist which can worsen with certain positions. She considered there was no obvious deformity on visual inspection but did find limited range of movement, in particular flexion. Her diagnosis was tendonitis with an associated ganglion, and that he had been left with residual stiffness after the second operation - “this could be termed a capsular thickening”.19 She considered there was a broad range of duties in manufacturing that would be appropriate for him taking into account his right wrist condition, although he did have some limitation bending his right wrist downwards that would cause some difficulty with tasks that require significant strength and agility of the right wrist. To the extent that his pre-injury duties required him to do repeated hand actions over the course of the day, he might struggle to do that work. She was of the view that it was this wrist problem that was the cause of the difficulty in returning to pre-injury duties compared with his back.
[18] Exhibit 7
29 Mr Russell Miller, orthopaedic surgeon, provided a medico-legal report to the plaintiff’s solicitors in August 2008[20]. In respect of the right wrist he noted Mr Malloy’s current problems were of pain and discomfort in the right wrist, worse with repetitive activities, including stiffness and loss of power to the wrist making it difficult to do dextrous tasks and that that had caused him to become partly left hand dominant. He noted the wide range of medication, including OxyContin, and the wearing of a right wrist brace. On examination he found and measured limitations of motion. In relation to the right wrist, he accepted the original diagnosis by Mr Webster of a dorsal wrist ganglion which was removed in June 2002, and that after stiffness developed Mr Tham diagnosed significant adhesive capsulitis to the dorsal capsule of his radiocarpul joint which had remained unresponsive to treatment. He regarded the long term prognosis as only fair and did not anticipate further improvement. He considered Mr Malloy not fit for his pre-injury work and that he could not engage in repetitive arm actions or power work with the right arm. Taken together with the lumbar spine problem, and his education and work experience, he did not envisage a return to work due to both injuries. He considered he was at increased risk of developing arthritic disease in the right wrist and as a result of his right wrist injury would not return to work for which he was adequately qualified and experienced. He also considered the right wrist injury would impact on domestic and recreational activities and that those restrictions were permanent.[21]
[20] Exhibit O
[21] Exhibit O
Conclusions about right wrist injury
30 I am satisfied that on 30 March 2001 while pulling sheet metal towards a guillotine, Mr Malloy suffered injury to his right wrist which caused synovitis and in time a ganglion in the right wrist. The ganglion was removed with surgery by Mr Webster in 2002, but left restricted movement and pain as a result of the development of capsulitis. Following arthroscopic surgery by Mr Tham in July 2004 to release that scar tissue and debride the area of capsulitis, there was minimal improvement. Ongoing treatment has at times included hydrotherapy and injection of cortisone and anaesthetic by Mr Ireland, but mainly use of a right wrist splint and pain killing medication. The medication has increased over the years, and for the last 3 years or more has included opiate based oxycodone.
31 According to Mr Malloy, at the time of the hearing he was taking an OxyNorm tablet of 20 mg together with 2 Mersyndol forte three times a day, with up to another 2 Mersyndol forte in the day.
32 The main limitation of movement of which Mr Malloy complains, and which was confirmed on examination (albeit of subjective complaint) by most doctors, was in plantar flexion of the wrist. Although complaining of loss of grip, only Mr Stapleton (and the found his right grip weaker than his left. He complains of increased pain on active use of the wrist, and as it was his dominant side he has needed to develop more skill with his left. For the future no surgical treatment is recommended.
33 Whilst most doctors decry the extent of strong medication being used, it is clear that the plaintiff has become dependent on it, and would need assistance in adjusting to non-medicated pain management, which after this period of time may not be possible. The strong medication is currently making him sleepy, and prevents his return to any work as he is likely to be a risk to himself or others if sedated by it and working in the vicinity of machinery or driving.
34 I accept that there is ongoing effect from the wrist injury which impacts on Mr Malloy’s daily life, with restricted flexion, and some increased pain on exertion. I accept that the impact of this injury would have daily consequences on his activities. It would prevent him engaging in his former social activity of 10-pin bowling. He says that he is embarrassed to eat out because his wrist impairs normal use of cutlery. He does not do the household repairs or maintenance that he used to do. He still drives a car. He has an endorsed driver’s licence limiting him to an automatic car with power steering and a spinning knob fitted to the steering wheel, although he says he does not use the knob as it causes pain in his left shoulder. His level of medication is a danger when driving, although he appears willing to take the risk by avoiding peak hour traffic. He says that he in fact drives to the local shops and his brother’s house and Dr Senini’s, even though they are very near where he lives. He has not used the taxi vouchers which were approved for his use last year when unable to drive due to medication.
35 The majority of the medical opinion about his wrist supports that he would be unsuited by reason of the wrist injury to work duties requiring repetitive right hand movements or particular dexterity or strength in that hand or wrist, and note that it is his dominant side. For a man in his 40s with a history of manual and labouring work, this would significantly limit his employment options.
36 In relation to the very strong medication which Mr Malloy takes, I am satisfied from all of the medical evidence (including that of Dr Senini who introduced and continues to prescribe the strongest of it, and Mr Wearne who has criticized it but at times provided prescriptions when Dr Senini has been unavailable) that there is no organic reason for him to need the quantity and strength of medication that he is taking, and that such medication is inappropriate for treatment of his injuries. It seems that he is prescribed it because he insists upon it, and that is because he has become dependent on it. The views of Dr Lim and Mr Ireland in relation to his wrist support that learning to manage ongoing pain is the only approach which could improve his condition.
37 I accept from the balance of opinion that there is ongoing impairment from the organic injury to his right wrist, with some limitation of his daily tasks and on his ability to perform repetitive right handed actions or to lift weights with his right arm. There is no expected improvement (except in his perception if he were weaned from strong medication), and Mr Miller says that in the very long term there could be gradual deterioration with arthritic change. In a man of his age, to have restrictions of this type in his dominant hand, and taken together with what I accept is a perception by him of pain likely to be precipitated by much active movement of his wrist, is in my view sufficiently significant to satisfy the definition of serious injury so far as pain and suffering and interruption of his enjoyment of life is concerned. I find that these consequences can be fairly said to reach the level of more than significant or marked, and at least very considerable when compared with other possible impairments of body function, taken in the context of the Mr Malloy’s life circumstances. I am also satisfied that they are likely to be permanent.
38 However, I am not satisfied that his wrist injury is a cause of permanent loss of earning capacity of at least 40 per cent as required under ss 134AB(38)(e).
39 The plaintiff’s gross earnings increased in the years following his injuries. The defendant submits that the highest of these is the rate to use under the formula in sub-paragraph (f) of s 134AB(38), as most fairly reflecting his earning capacity without injury. That is the most favourable approach for the plaintiff and I therefore take the gross annual figure of $64,000 or an average $1250 gross per week. He would therefore need to satisfy me that he cannot earn 60% of that amount as a result of his injury, namely $750 per week or $38,400 gross per annum.
40 It was not until June 2005 that he ceased work. That was due to the effects of his medication, and from Mr Wearne’s evidence it would seem that it was due to his exceeding the prescribed dosage of Paradex. According to Mr Wearne, on prescribed levels – and even those Mr Wearne doubted were necessary - he could have continued at his duties[22].
[22] T 142 , lines 3-16. Also, report of Dr Turnbull dated 23/3/06, p 2 paragraph 2- Exh 20
41 Dr Senini continued to certify him as capable of performing employment duties that restrict use of his right hand, if he could overcome his dependence on the strong medication whose side effects prevent his being able to work. During late 2005 and up to March 2006, Dr Turnbull as one of his treating GPs considered he had capacity for light, non-repetitive work, including driving[23].
[23] Exhibit 20, report of April 2006
42 I accept that the duties performed by Mr Malloy from the time of his injury were modified duties, but it seems it was not until he returned from the second operation in late 2004 that he was on the copper coil machine on which he could be said to have a protected job needing assistance to load the coils, having managed forklift driving provided it was interspersed with other duties.
43 I am satisfied that there are other jobs which he could do, even taking into account that there is some impairment of movement in his right wrist, and that he perceives it to get painful with exertion, and also taking into account that his back condition would not allow him to do repeated bending or twisting. Apart from the effect of medication he is apparently able to drive, and could perform light deliveries.
44 The plaintiff’s case is based on his being totally incapacitated for work and permanently so.
45 The only evidence as to the pay rates for alternative duties[24] was from March 2005 when he was assessed as capable of a number of alternative jobs earning more than $750 gross per annum but more relevantly when he was still earning the higher rate working for the defendant.
[24] Exhibit 18- report of Victorian Rehabilitation Centre.
46 The plaintiff bears the onus of establishing that he has suffered loss of earning capacity as measured under s 134AB(38). For reasons I have explained I am not satisfied that he has suffered a total loss of earning capacity, nor that he is not capable of full-time alternative duties. There is insufficient evidence for me to assess in these circumstances whether the injury to his wrist has been a material cause of a permanent loss of earning capacity of at least 40%.
Back injury
47 On 21 June 2001 Mr Malloy was working at his guillotine duties pulling heavy steel sheets when he felt severe lower back pain. He was seen by Dr Turnbull, whom he describes in his affidavit as a work doctor but elsewhere as his general practitioner. Dr Turnbull’s reports[25] reflect that he first saw him for his back on 5 July 2001 with a complaint of a history of lower back pain that was sharp and intermittent and exacerbated by doing heavy work at Frigrite. He saw him on ten occasions from July to November 2001 and issued VWA certificates of capacity for modified duties. He obtained a CT scan of the lumbosacral spine on 20 July 2001 which was reported as normal and referred Mr Malloy for physiotherapy.
[25] Exhibit 20
48 In the meantime Mr Malloy had consulted his long time general practitioner, Dr Christensen, who referred him to Mr Max Wearne, orthopaedic surgeon, in relation to his lower back pain. There is no separate report from Dr Christensen. Dr Turnbull reports a number of further visits but was aware that he was not Mr Malloy’s primary treating doctor.
49 Mr Max Wearne first saw Mr Malloy on 1 October 2001, and has been the main treating doctor for his back pain ever since. On initial consultation, Mr Wearne took a history of his feeling a sudden stabbing pain his left lower back when shifting a heavy metal sheet, and had continued to have aching pain in his back which radiated into both buttocks and down the back of his legs. He was attending physiotherapy twice weekly but felt it aggravated rather than relieved the back condition, and prescribed anti-inflammatory medication had produced a feeling of somnolence and diarrhoea and Mr Malloy had ceased to take it. He observed him to present as a healthy looking young man of good general physique with no noticeable muscle wasting or weakness and no loss of muscle power, who stood and walked with a normal posture and gait and was quick in his movements. Straight leg raising was to 70 degrees on both sides and all reflexes were present, brisk and equal. The report of a CT scan of Mr Malloy’s lumbar sacral spine of 20 July 2001 was reported as normal and specifically no disc disease, no canal stenosis and the facet joints had a normal appearance. Mr Wearne’s initial report to Dr Christensen was that he thought Mr Malloy’s condition no more than a muscular ligamentous lower back strain but complaints of pain down the backs of his legs did arouse the suspicion of an underlying disc lesion, so he ordered an MRI scan.[26]
[26] 2 October 2001 – Exhibit 1
50 The MRI scan showed mild loss of height of the L4/5 disc without associated evidence of disc dislocation, internal disc disruption or disc prolapse, but Mr Wearne’s opinion was that the L4/5 intervertebral disc was the most likely cause of Mr Malloy’s continuing symptoms.[27] Mr Wearne advised continued conservative treatment, including physiotherapy.
[27] Report dated 13 February 2007 – Exhibit D
51 By December 2001 Mr Malloy was working full-time driving the forklift and operating a computer, but complaining of pain in both buttocks and pain in the backs of both thighs as well as a burning sensation in both feet aggravated by standing. Over the next few months there was interchange with the defendant’s management as to the most suitable duties for Mr Malloy with Mr Wearne recommending minimising standing, bending and lifting. By June 2002 Reebok walking shoes had been fitted, but to Mr Wearne it was becoming increasingly evident that the pain in his feet was a separate issue from his back.
52 Complaints of pain in the back and left buttock continued and by January 2003 Mr Wearne prescribed a combination of Paradex (analgesic) and Vioxx (anti-inflammatory) with an acid reducing tablet for indigestion. By October 2003 Mr Malloy was working full-time on the nightshift at the defendant spending most of his time working on a small brake press which produced small components. He was complaining of fluctuating pain in his lower back and buttocks as well as in his calves and Achilles tendons. Medication consisted of Vioxx and Paradex. On examination he was standing with a normal posture and gait and could manage a full range of back movement, although complained of tenderness just above the left sacroiliac joint. There were no positive neurological signs and straight leg raising was to 90 degrees on both sides. Mr Wearne’s opinion was that Mr Malloy was fit for full-time employment with restrictions in the form of a weightlifting limit of five kilograms, no sustained or repetitive stooping with no twisting and periods of standing to be limited to an hour with alternative duties between these periods.
53 Complaints of his condition remained much the same for the following year, although in June 2004 he complained that the Paradex was not giving him sufficient relief and Tramal tablets were given as an alternative. He was then off work due to arthroscopy of his right wrist. On return to work in late 2004 his medication was Mobic (non-steroidal anti-inflammatory) as well as Tramal with Quinate at night for cramps and Somac for indigestion. By January 2005 his medication included Paradex, Mersyndol, Mobic as well as Somac and Quinate, and by March 2005 he was using combinations of Doloxine and Mersyndol Forte as well as Fentanyl patches for control of pain.
54 Mr Wearne was aware that in July 2005 Mr Malloy’s employer’s were concerned about the amount of medication he was taking in that he had arrived at work in a groggy state, having taken more Paradex in a given time than was prescribed. Mr Wearne spoke to him about this and it was his understanding that Mr Malloy understood he should not repeat it. Mr Wearne’s opinion was that he would be fit to operate machinery if he stuck to the appropriate prescribed doses.
55 In July 2005 another MRI was ordered which was reported as showing that essentially this is a normal examination. Mr Wearne examined the films and noted that while the slight narrowing of the L4/5 intervertebral disc was still present, there was no doubt that the consistency of the substance of that disc was entirely normal. At this stage Mr Wearne revised his earlier opinion as to the possibility of an L4/5 disc lesion and “had to concede that the evidence pointed to a mild congenital abnormality resulting in the loss of disc height and not an injury”.[28] His revised diagnosis was that the symptoms were attributable to the paraspinal structures and would fall into the category of a lumbar musculo-ligamentous strain.
[28] Page 7 of report dated 13 February 2007 – Exhibit D
56 Mr Wearne was aware that Mr Malloy had been seen by Dr Friedman following being asked to stay away from work after the excess of medication, and was told that he was depressed and prescribed an anti-depressant, Deptran. In early 2006 that was changed to Endep to also assist with his difficulty in sleeping.
57 Mr Wearne reports that by August 2006 the main problem had become the adjustment of Mr Malloy’s medication, and that he had contacted Dr Senini to discuss a pain management clinic for Mr Malloy. He saw the addition of OxyContin, OxyNorm supplemented with Mersyndol as having resulted in Mr Malloy becoming sleepy and confused. He considered him no longer fit to undertake employment at Frigrite because of his confused state due to his medication and certified him unfit for work. On review, in January 2007, he had said he was spending most of his time sleeping but when he woke up he experienced pain in his lower back, neck, right shoulder blade area and right wrist. He described having a break by going to Queensland where he had tried suspending all medication but that had resulted in tremor and diarrhoea and told Mr Wearne that Dr Sennini had suggested that was a withdrawal reaction – this was not recalled by Dr Sennini.
58 Mr Wearne has continued to see Mr Malloy approximately once a month in relation to his back. He is aware that Mr Malloy was advised against surgery by Mr Chris Xenos, neurosurgeon, in June 2006, and by Mr Peter Wilde, orthopaedic surgeon. A referral to Dr Terrance Lim, consultant in rehabilitation and pain medicine had provided Mr Malloy with information about the Hopetoun Chronic Pain Rehabilitation brochure but Mr Malloy had found Dr Lim’s advice unhelpful.
59 Dr Senini had been adjusting the medication for pain, but such medication had escalated through Panadeine Forte and Mersyndol Forte to Tramadol, Norspan patches and then oxycodone. Although the latter gave Mr Malloy temporary relief from pain, as a side effect it produced a marked soporific effect which Mr Wearne noticed in November 2006 and January 2007 when he felt he was unfit, either to operate machinery or drive a car. Mr Wearne says he has pleaded with Mr Malloy to try to reduce his intake of tablets as he felt the side effects were becoming potentially dangerous. A course of hydrotherapy treatment at the Oasis Pool in Dandenong managed to ween him off the oxycodone with its profound soporific effects, but not Mr Malloy’s demand for other narcotic analgesics in the form of Mersyndol Forte and Panadeine Forte. Mr Wearne’s opinion remained that the intake of analgesics was excessive considering the lack of physical findings.[29]
[29] Report of 9 August 2007
60 Mr Wearne denies prescribing OxyContin, OxyNorm and Mobic (except once when Mr Malloy told him Dr Senini was unavailable. He says that the medications were prescribed by Dr Senini and in Mr Wearne’s opinion are excessive. He says he had spoken on several occasions to Dr Senini to discuss alternative forms of treatment. Attempts to refer Mr Malloy to pain management clinics had unfortunately been unsuccessful. His opinion in his report of 3 April 2008 was that most if not all the medication that Mr Malloy was currently imbibing was unnecessary and not consistent with the observable physical signs and radiological observations.
61 Mr Wearne’s diagnosis remains as a musculo-ligamentous injury of the lower back. He has certified Mr Malloy as being fit to undertake light work with restrictions to no more than 20 hours per week, freedom to change position as required, no sustained or repetitive bending and the weight limit of ten kilograms.
62 Mr Wearne gave oral evidence and was cross-examined. He confirmed that he had spoken to Dr Senini about trying to stop the strong medication, although Dr Sennini claimed not to recall.[30] Mr Wearne confirmed[31] that over the past couple of years the major problem has been the excessive drugs that Mr Malloy is taking rather than the organic condition of his back. He would not go so far as to say that any impairment he has now could not be said to be permanent, because Mr Malloy has been complaining of pain for eight years and he thinks it would be a forlorn hope to imagine that that pain would now go away in some magical way.[32] However, he confirmed that in relation to Mr Malloy’s back he could not find any organic cause for the extent of complaint of pain, and if the drug taking were reduced or eliminated he would not do himself a further injury by undertaking restricted duties – full-time duties not requiring extended standing, sitting, twisting or heavy lifting. He would certainly not put him straight back on full duties, but would start him on 20 hours a week and hope it would extend to full-time duties without repetitive bending or lifting.
[30] T 102-103?
[31] T 149-150
[32] T 150, lines 5-10
63 Mr Wearne had observed some improvement in Mr Malloy in 2008, and he hoped that when the litigation was at an end there might be further improvement. He considered that there is an organic basis to the plaintiff’s ongoing complaint of pain for which he demanded the medication, but that that organic basis is minimal – a very small factor in Mr Malloy’s case. He was not optimistic about the probability of him being able to detoxify from the drugs, because there had been so many failures with him. However Mr Wearne to find Mr Malloy a likeable patient and hoped that improvement would be able to be achieved.
64 Other medical opinion relevant to the plaintiff’s back includes that of Mr Peter Wilde, orthopaedic surgeon, who saw the plaintiff in July 2006 for orthopaedic opinion on the referral of Dr Senini. He took a history of feeling a sharp stab of pain in the buttocks and lower back when pulling large steel sheets from pallets to a guillotine at work on 21 June 2001. He was told the plaintiff had had physiotherapy, anti-inflammatories prescribed, hydrotherapy and that gradually his symptoms improved but that the pain never fully resolved and he was on light duties until June 2005 when laid off.
65 At the time of Mr Wilde’s consultation, his symptoms were low grade lumbosacral aching with referral into both buttocks and some referral into his hamstring area. He described pain levels at seven to eight out of ten, with no neurological symptoms such as weakness or numbness in his legs.
66 Mr Wilde’s opinion was that the 2005 MRI of the lumbar spine was essentially normal, and showed no change since the previous one of October 2001. He thought it showed very slight disc dehydration at L4/5 but no evidence of a neural compression lesion. His diagnosis was “non-specific back pain without radiculopathy” and his opinion was that the employment resulted in aggravation of pre-existing lower lumbar degenerative changes. He recommended reduction in medication and referral of the plaintiff to a rehabilitation program, and indeed referred him to Dr Lim. Mr Wilde’s opinion was that Mr Malloy was not fit to return to his pre-injury work as a guillotine operator for steel fabrication or other forms of physical or manual work, and the situation was unlikely to change in the medium or short term.[33]
[33] Exhibit K
67 Dr Chris Xenos, consultant neurosurgeon, saw the plaintiff in July 2006 on referral from Dr Senini for assessment of his chronic spinal condition. At the time he was seen, Mr Malloy was on hydrotherapy and medication of Endep and Mersyndol Forte and his biggest complaint was of feeling drowsy because of all the medications. Mr Xenos found him otherwise well looking, with a normal gait and sitting comfortably during the consultation, able to bend down and touch his knees, and his straight leg elevation was only slightly limited on the right hand side due to discomfort in the ankle. He found no neurological weaknesses or abnormalities. He reviewed the July 2005 MRI scan which he said “does not look that bad”, with only minimal degenerative changes and possibly a minor disc bulge at L4/5 but no significant stenosis and certainly no focal disc prolapse causing any nerve root compression. He felt the patient’s biggest complaint was “more of a mechanical and muscular back pain rather than the true radicular nerve pain symptoms”. For that reason he did not recommend surgical intervention or invasive procedures such as epidurals as the radiology did not really demonstrate any focal abnormality. He recommended continuation of physiotherapy and hydrotherapy with the aim to control his chronic pain situation.[34]
[34] Exhibit 23
68 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff on 9 October 2007. He found him genuine in his descriptions and cooperative without embellishment. He found thoraco-lumbar spinal flexion limited, with the other movements essentially full and all were freely performed, with no spinal tenderness or palpable spasm, and measurements of thighs and calves were equal on both sides and power was full and equal in all muscle groups. Reflexes were present and symmetrical and there was no abnormality to sensation on testing. He had available reports from Mr Wilde and Mr Xenos and the October 2001 MRI scan report. He noted that several lumbar spine radiological investigations had not shown any objective abnormality and on examination there was no objective neurological abnormality but there was restriction of thoraco-lumbar flexion.
69 Mr Brownbill felt that the plaintiff presented as genuine, and that his described ongoing pain was genuine and organically based, although there was no precise anatomical origin of it demonstrated. He did feel that there may have been some emotional reaction to the ongoing pain and activity restriction with some accentuation of his perceptions of the levels of ongoing pain, and considered it likely that ongoing pain would continue in a fluctuating manner indefinitely but there would be no neurological sequelae. He recommended avoidance of activities involving heavy lifting or repeated bending, and noted that with his limited education, inability to use a computer and with work experience limited to heavy manual activities, he would have difficulty finding work for which he was suited. He did not consider him capable of performing his pre-injury duties and that that incapacity would be permanent. He considered he was likely to remain precluded or restricted in social, domestic or recreational activities to a moderate degree for the foreseeable future. He also recommended a pain management or rehabilitation program with cognitive pain therapy from a pain psychologist.
70 Of medico-legal reports, the most helpful in respect of his back to Mr Malloy’s case is that of Mr Russell Miller[35] of August 2008. He lists reports from 24 other doctors or consultants as to the back condition. The current complaints were lower back pain and discomfort radiating into both legs, into the groins and also mainly down the left leg with vague feelings of intermittent numbness and tingling and that the symptoms are worse with repetitive bending and periods of prolonged standing. He noted the range of medications, including OxyContin and that there were plans to commence hydrotherapy for the back in the near future. He noted that Mr Malloy takes anti-depressant medication but there is no other psychiatric intervention.
[35] Exhibit O
71 In relation to the lumbar spine, Mr Miller’s opinion was that Mr Malloy has a degenerative disc in the lumbar spine, probably at the L4/5 and probably degenerate facet joints. He felt Mr Malloy had significant symptoms and the prognosis was only fair. He considered it likely that Mr Malloy’s work, in general, contributed to the evolution of the disease in the right wrist and lumbar spine, although he had taken the history of onset of pain in the lower back, from the single incident of pulling steel sheets in June 2001. He considered for future treatment that it was possible but unlikely that Mr Malloy would benefit from further surgical intervention but believed he would require ongoing conservative treatment including analgesics, anti-inflammatory agents, pain management and for his wrist the use of a wrist splint. He considered that he was not fit for his pre-injury work and cannot return to work that involves repetitive bending, repetitive lifting, or lift weights more than five kilograms, and would need a requirement to shift his posture on a regular basis. He noted that given his understanding of Mr Malloy’s education and work experience, he did not envisage a return to work due to work-related injury involving the lumbar spine and the right wrist and because he felt the injuries were substantially stabilised it was clear he was left with marked long- term impairment.
72 The defendant relies on a large number of medico-legal reports which are not supportive of the plaintiff’s claim. Mr Michael Troy, orthopaedic surgeon, first saw him in October 2003 when he had returned to work after a work site assessment which resulted in him not being given guillotine work but use of a forklift with an approved seat, as well as working on a brake press job which he had done for a year. As to his lumbar spine he stated that he could sit in a chair for ten minutes then he is aware of pressure in his left lower back and standing in the one spot gave him that pain and he also felt a grabbing pain after about 15 minutes and had to change his position. He had a similar symptom when walking after 15 minutes. He told Mr Troy he could cope at work for the simple reason he could sit and stand and he takes his medication. His tablets at that stage were Vioxx and Paradex and he was not wearing a brace for his back but continued to wear the splint on his right forearm at work. On examination of his spine he had 60 per cent of straight leg raising of either leg and was readily able to sit up on the couch at 90 degrees of hip flexion with knees extended where he had tenderness to the left of his spine in the L4/5 area. He walked out with normal posture and gait. Mr Troy noted the October 2001 MRI showing mild loss of disc height at L4/5 but no evidence of other abnormality.
73 Mr Troy’s diagnosis was an ongoing degenerative disc injury at L4/5 in which he continued to have symptoms by the very nature of his degenerative back. He considered the injury had resulted in incapacity for employment which was a lack of capacity for his pre-injury employment but he did have capacity for suitable employment; such as what he was then doing, sitting at a brake press, working and able to stand or sit when he needed to and to wear his splint on his wrist. He proffered that other type of work he may be able to do is to put small parts into packaging or possibly he could do some computer work. So far as further treatment was concerned, he thought he needed to continue to exercise and walk and keep his weight under control and take simple medication if and when needed. He felt there was a permanent impairment resulting from the work injury in the right wrist and with his lumbar spine there was impairment in twisting and bending but that did not prevent him from working at what he was then doing at a bench with ability to sit or stand. He felt his treatment could be self-managed, other than going to the doctor at possibly three monthly intervals for renewal of prescriptions.
74 Mr Hugh Weaver, orthopaedic surgeon, examined him in May 2005.[36] He observed that Mr Malloy presented as someone who appears to have incurred a series of genuine, if fairly self-limiting, orthopaedic problems which had affected various regions throughout the musculoskeletal system over recent years. He did not believe that any of the pathology was particularly dramatic but would accept that Mr Malloy could probably argue that his employment activities had contributed to the situation. As he was then currently working at the copper tubing job it was felt that he was theoretically capable of persevering at that kind of activity. Mr Weaver believed he was suffering from an element of genuine if mild lumbar disc degeneration, the prognosis of which was reasonably satisfactory provided that he was looked after in the work place.
[36] Exhibit 9
75 Mr Clive Jones, orthopaedic surgeon, examined him in May 2007 but the only report tendered[37] is referrable only to the right wrist injury. His diagnosis was that surgery to excise a dorsal wrist ganglion had not restored function or relief of pain and the following arthroscopic surgery was also not successful in doing so. He was of the view that no further surgical treatment was contemplated and that there was an ongoing and permanent wrist pain following surgery, the cause of which was not altogether clear but had left some impaired movement but no neurological dysfunction or alteration loss. He considered the problem was permanent and assessed it on tables at 11 per cent upper extremity impairment in a worker who was right handed.
[37] Exhibit 12
76 Dr Mary Wyatt, occupational physician, examined Mr Malloy in August 2004 and September 2007. She found he had mildly restricted movement in his back flexion and extension, and some generalised tenderness through the upper and lower lumbar spine. She felt his lower back pain was non-specific but both that and his wrist problem were expected to remain much the same although symptoms were likely to fluctuate in intensity from day to day. She considered him fit to return to restricted duties with minimised heavy lifting and avoiding a lot of bending and stooping but he was fit for work full-time. In September 2007[38] he told her he had ongoing pain in the lower back which was worse with standing and walking for long periods of time and he had radiation of pain in the back of the right leg and outer right thigh with a deep throbbing ache in both calves. She assessed his presentation as pleasant and he had an absence of non-physically based findings. His back had a normal thoraco-lumbar curve inspected visually with no tilt. He demonstrated a reasonable range of back movement, indicating discomfort on full extension and soreness about two-thirds of forward bending. He had unrestricted straight leg raising and indicated moderate tenderness over his mid to lower lumbar spine. She considered that although the episode described had contributed to his back problem at that time, it was not an ongoing contributing factor to his back complaints. She considered his back problem may cause him continued soreness but that should preclude return to the workforce but he had become deconditioned through not having worked for so many years. She considered his musculoskeletal problems were at a level common in the community and were only a relatively minor ongoing contributing factor to his disability and incapacity.
[38] Exhibit 7
77 Dr Chris Baker[39], occupational medicine specialist, in January 2005 found normal posture with retention of a cervical and lumbar lordosis but tenderness to the left side of the lumbar spine. He considered, after reading a number of supplied medical reports, that it appeared that Mr Malloy had suffered injury to his wrist and to his back. He considered the back injury symptomatic degenerative changes in the lumbar spine to which employment was a significant contributing factor and he felt the lower back and wrist had resulted in incapacities which prevented him from undertaking unrestricted pre-injury employment but he was capable of undertaking suitable employment, such as that it which he was then currently working – winding coils of copper tubing for the refrigeration mechanism. He did consider that it was likely there would be a permanent impairment of the lower back and of the right wrist but that Mr Malloy was capable of undertaking suitable employment.
[39] Exhibit 8
78 Mr Brian Davey[40] examined the plaintiff in September 2007. He diagnosed that the plaintiff had sustained a lower back strain, probably a soft tissue injury and possibly aggravation of an early disc problem at L4/5 but he did not think that the plaintiff’s complaint of pain, restriction and disability and incapacity derived from a physical cause at the stage he examined him in either the wrist or lower back. Mr Davey considered him physically capable of undertaking his pre-injury duties as well as lighter sedentary work and some factory work. He felt that treatment with narcotic drugs had caused him now to be addicted to those and that his present complaints were related to addiction. He recommended a program of detoxification and if it could be achieved it would make it easier for him to return to work.
[40] Exhibit 14
Conclusions in relation to lower back
79 I am satisfied that in pulling heavy sheets of metal on 21 June 2001 Mr Malloy did suffer injury to his back. Notwithstanding the views of Mr Miller and Mr Troy, I am not satisfied that there was a discrete injury to his L4/5 disc. In my view the diagnosis and assessment of his condition by Mr Wearne is likely to be more reliable than any other because Mr Wearne has been treating Mr Malloy, seeing him regularly, for more than seven years.
80 I accept that most of the medico-legal examiners have assessed his presentation as genuine – as was my impression of him in the witness box. However, I have regard especially to Mr Wearne’s views because although as he says he likes Mr Malloy, and remains committed to trying to help him through his condition, he has had the opportunity to integrate his perception of the plaintiff as making genuine complaints with the radiological evidence and physical assessment over a long period.
81 Mr Wearne originally considered that it was probably no more than a musculoskeletal strain, but ordered the MRI to investigate whether there was a disc injury, gave “the benefit of the doubt” when the October 2001 MRI showed some lowering of height at L4/5, albeit no nerve root impingement or canal stenosis, but after the 2005 repeat MRI showed no significant change since 2001 he revised his opinion back to there having been no spinal pathology but rather muscular strain.
82 His opinion now is that there is no diagnosable pathological reason for ongoing complaints of pain of the extent of which Mr Malloy complains. In relation to treatment for the complained of pain, he is strongly of the view that it does not require the opiate or codeine based medications that are being prescribed by Dr Senini, and even though he has provided a prescription in Dr Senini’s absence, his opinion does not support that medication as reasonable or appropriate treatment for Mr Malloy’s back pain. Further, his opinion is that if the strong medication could be eliminated – and therefore its side effects – Mr Malloy would be capable of resuming employment, on a graduated basis from 20 hours per week at light duties up to full-time duties, albeit modified to the extent of eliminating heavy lifting, bending or twisting.
83 In my view, the medico-legal reports, together with the opinions of other consultants to whom Mr Malloy was referred on a single occasion for opinion by his general practitioners, do not sustain Mr Malloy’s case, although he obviously impresses on first examination as being genuine in his complaints. He may well be genuine in his complaints but in my view Mr Wearne has had the best opportunity for insight into Mr Malloy’s condition, and his opinion does not support there being an organic injury which still contributes anything but minimally to the level of consequences of which Mr Malloy continues to complain.
84 If he still suffers the extent of pain of which he complains in his back, or symptoms radiating into his legs (for which there has been no pathological basis shown), I am not satisfied that it is a consequence of any original organic injury. The material tendered does not make it possible to determine whether it is a result of a mental or behavioural disorder, although that prospect has been mentioned by some examiners and rejected by others.
85 For these reasons I am not satisfied that Mr Malloy has that he has suffered permanent impairment of his lower back function that could be fairly described as “more than significant or marked” or “very considerable” resulting from any organic injury to his lower back.
Drug dependency
86 The plaintiff’s case is that the adverse consequences of the strong medication he takes are to be considered as consequences of the injuries to his wrist and back, including insofar as they impair his ability to resume employment.
87 The defendant argues that Mr Malloy has become dependent on or addicted to the medication and that this dependency is a psychological condition within the DSM IV diagnostic parameters.
88 Although Mr Kennan for the plaintiff sought to leave open that this could bring the claim under part (c) of the definition of “serious injury[41], he confirmed that the primary basis was that organic injury had caused the need for the strong medication on which the plaintiff had become dependent. It may have been left open, but unlike in the case cited to me of Rogers v Adecco Pty Ltd[42], there was no specific evidence as to the psychological characterization of dependency, to support an argument that Mr Malloy has suffered a severe mental or behavioural disturbance or disorder of that type or any other.
[41] T 15
[42] Decision of His Honour Judge O’Neill, 4 August 2008
89 In my view, if strong medication is reasonably and appropriately prescribed by qualified doctors for pain from organic injury, and the patient becomes dependent on that medication, then the effects of the medication should be regarded as a consequence of the organic injury. However, in Mr Malloy’s case, the issue is complicated by the question of whether the medication is reasonable or appropriate treatment for the organic injuries which he has suffered.
90 When last seen by Mr Webster and Mr Tham, after their surgical treatment of his right wrist, he was on pain medication but not the opiate or codeine based type to which he was later introduced. By June 2005 he was noted to be affected by the side effects of his drugs at work to the extent that it was felt to be dangerous and he was put off work. That, according to Mr Wearne, was because he was exceeding the prescribed dosage of the Paradex on which he would otherwise have been capable of continuing to work while taking it for pain relief. It is unclear whether it was Dr Christensen or Dr Turnbull who first prescribed Mersyndol Forte, as Mr Wearne says it was being prescribed by his general practitioner and not him. According to Dr Senini, he did not take over treatment of the plaintiff for his right wrist or back (to the extent he ever did) until April 2006.
91 Dr Senini says he started the plaintiff on oxycodone – both OxyContin and OxyNorm, under the belief in late 2006 that he had already been on very strong pain killer medication. He was not specific as to what that stronger medication was, nor why it was introduced after the Paradex which, according to Mr Wearne, could have been maintained if Mr Malloy took the correct dosage.
92 Dr Senini did seek specialist advice to try to overcome Mr Malloy’s problems – from Mr Wilde, Mr Brownbill and Mr Xenos in relation to his back, as well as Dr Ireland in relation to his wrist. So far as his prescription of the opiate based medication is concerned, however, Dr Senini agreed that after the opinions from Dr Ireland, including the lack of relief from steroid injection into the wrist, and the lack of any abnormality shown on the bone scan in early 2006, there was no organic abnormality able to be diagnosed as the cause of the ongoing pain complained of the right wrist. He agreed with the proposition that it is extremely difficult to treat any pain without an empirical diagnosis. Nevertheless, he has been prescribing oxycodone for more than three years, mixed with Mercyndol forte, such that according to Mr Malloy, he is currently taking up to three OxyNorm of 20 milligrams per days, each taken together with two Mersyndol Forte tablets and up to two further tablets. This appears to have been prescribed because Mr Malloy has continued to request drugs for pain relief, and when urged to reduce medications has complained of increased pain. Dr Senini agreed that the drugs may be causing nausea and drowsiness and that the drugs are the major impairment to his ability to work, but said he could not say whether Mr Malloy is addicted to this medication. He has referred him to pain management specialists, at first Dr Lim and then in 2007 to Epworth Rehabilitation, which he attended as required but at which he showed no great progress.
93 Dr Senini claimed in cross-examination to have no recollection of being contacted by Mr Wearne about Mr Wearne’s concern as to Mr Malloy’s dependency on drugs nor to have been asked to reduce them. I prefer the evidence of Mr Wearne on this issue. Dr Senini does say that he agrees that the best future treatment for Mr Malloy would be supervised withdrawal from the drugs regime, ideally as an inpatient, and that Mr Malloy’s general physical well-being would be much better if that occurred, although he could not say if the pain would be any different.
94 Dr Senini disclosed that there is no permit obtained for the prescription of the oxycodone medication to Mr Malloy over the last three years. He agreed that usually a permit would be required if the prescription of the medication is going to be long-term which Mr Malloy’s has clearly become. There has in effect been no supervision of the need for this medication; rather it has continued to be prescribed because the patient has demanded it.
95 Taking Dr Sennini’s evidence together with Mr Wearne’s views on the inappropriateness of the high levels of opiate based medication for Mr Malloy, and also taking into account the recommendations of many other doctors who have seen him, including specialists in medication dependencies for pain, such as Dr Lim and the Epworth Rehabilitation team, I cannot be satisfied that use of this medication is reasonable or appropriate treatment for the compensable injuries the subject of Mr Malloy’s application.
96 For this reason I am not satisfied that the disabling effects of Mr Malloy’s medications are consequences of the injuries the subject of this application, as to pain and suffering but more particularly as to incapacity for work.
Conclusions
97 I am satisfied that Mr Malloy suffered an injury to his right wrist during the course of his employment on 30 March 2001 the consequences of which amount to a “serious injury” as to pain and suffering, but that he has not satisfied the test to entitle him to claim loss of earning capacity damages. I am not satisfied that the injury to his back suffered on or about 21 June 2001 constitutes a “serious injury” under the definitions in the Act. I propose to grant the plaintiff leave to bring a claim for pain and suffering damages only in respect of the injury to his right wrist.
SCHEDULE OF EXHIBITS
MALLOY v. FRIGRITE REFRIGERATOR PTY LTD & ANOR
Number and
| Identifying Mark on | Short Description of Exhibit |
Exhibit
A Copy Plaintiff’s affidavit, sworn 7/6/07 B Photocopy of endorsements on Plaintiff’s driver’s licence C Reports of Dr David Senini dated 24/1/07, 5/6/07, 6/8/07, 17/3/08, 21/2/09 D Reports of Mr Max Wearne dated 13/2/07, 9/8/07, 24/1/08 & 3/4/08 E Affidavit of Mark Malloy, sworn 25/8/05 (PCB 34-6) F Plaintiff’s Taxation Summary (PCB 42) G Termination Notice, dated 5/6/06 (PCB 43-4) H MRIs of lumbar spine, dated 20/7/05 & 14/10/01 (PCB 46 & 48) J Right wrist ultrasound, dated 3/4/01 (PCB 50) K Report of Mr Peter Wilde, dated 15/4/07 (PCB 119-21)
Reports of Mr Howard Webster, dated 18/6/02, 25/2/04, 21/9/05, 7/2/06 & 18/6/02L (PCB 128-134)
Reports of Mr Stephen Tham, dated 25/1/04, 27/1/04 & 26/3/04 and operation reportM dated 19/7/04 (PCB 135-39) N Report of Mr Terence Lim, dated 11/10/06 (PCB 140-41) O Report of Mr Russell Miller, dated 1/8/08 (PCB 142-49) P Report of Mr David Brownbill, dated 11/10/07 (PCB 150-56)
Reports of Epworth Rehabilitation, dated 17/7/07, 4/9/07, 9/11/07 & 19/2/08Q (PCB 157-72) R Letter from Frigrite Kingfisher, dated 24/7/98 (PCB 173) S Job Capacity Assessment Reports, dated 5/3/08 & 2/5/08 (PCB 174-84)
Letters from City of Kingston dated 19/5/08, Tennix dated 17/6/08, Mentone Ten PinT Bowling dated 2/6/08, and Top Gun Powder Coating dated 14/5/08
Reports of Mr Wearne dated 31/10/06, 11/4/06, 23/8/05, 25/11/03 & 2/10/011 (PCB 85, 91-4, 100-2, 113-18, 272) 2 Schedule of Particulars of Absences (PCB 8) 3 Schedule of Rehabilitation (PCB 9) Reports of Mr Michael Troy, orthopaedic surgeon dated 17/10/03 & 17/12/03 4 (DCB 27-35) 5 Report of Dr David Fish, dated 27/4/04 and Worksite Assessment (DCB 36-52) 6 Report of Mr Graham Peck, dated 5/5/04 (DCB 53) Reports of Dr Mary Wyatt, occupational physician dated 26/8/04 & 8/9/07 7 (DCB 54-66) 8 Report of Dr Chris Baker, dated 5/1/05 (DCB 67-71) 9 Report of Mr Hugh Weaver, orthopaedic surgeon dated 27/5/05 (DCB 72-8) 10 Report of Dr Graham Boothby, occupational physician dated 21/1/06 (DCB 79-86) Reports of Dr David Barton, occupational physician dated 16/6/05, 5/10/05, 12/4/06, 11 4/5/06, 4/10/06 & 24/7/08 (DCB 87-112) 13 Report of Dr Peter Stevenson, consultant physician dated 7/9/07 (DCB 119-25) 14 Report of Mr Brian Davie, orthopaedic surgeon dated 12/9/07 (DCB 126-29) Reports of Mr Murray Stapleton, plastic surgeon dated 13/9/07 & 21/7/08 15 (DCB 130-35)
Reports of Prof John Hart, orthopaedic surgeon dated 29/9/05, 19/10/05, 5/10/06 &16 26/8/08 (DCB 136-152h) Rehabilitation Assessment Report of theVictorian Rehabilitation Centre, dated 17 25/11/04 (DCB 189-97) 18 Reports of IPA, dated 5/8/05 & 21/6/06 (DCB 204-34, 240-57) 19 Sutcliffe Rehabilitation Report, dated 28/3/06 (DCB 235-39) 20 Reports of Dr Stuart Turnbull, dated 23/3/06 & 20/4/06 (PCB 67-70, 60-2) 21 Extract from Dr Turnbull’s progress notes for 8/12/05 (DCB 266) 22 Letter from Mr Stephen Tham to Dr Turnbull, dated 9/12/05 23 Reports of Dr Chris Xenos, dated 5/7/06 & 26/6/07 (PCB 122-25, 126-27) 24 MRI of lumbar spine, dated 19/11/07 (DCB 282) Letters from Mr Damien Ireland to Dr Senini, dated 1/11/06, 19/12/06 & 16/1/07 25 (DCB 277-79) 12 Report of Mr Clive Jones, orthopaedic surgeon dated 6/5/07 (DCB 113-18)
26 Letter from Mr Howard Webster to Dr Senini, dated 19/9/06 (DCB 276)
27 Report of Dr Daniel Lewis, Rheumatologist to Dr Senini, dated 14/6/07
28 Driving Assessment Report, dated 18/8/08
0
0
0