Mark Lindsay Wilson v IPM Operation and Maintenance Loy
[2010] VCC 1828
•21 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES LIST
GENERAL DIVISION
Case No. CI-10-01564
| MARK LINDSAY WILSON | Plaintiff |
| v | |
| IPM OPERATION & MAINTENANCE LOY | Defendant |
| YANG PTY LTD |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 November 2010 |
| DATE OF JUDGMENT: | 21 December 2010 |
| CASE MAY BE CITED AS: | Mark Lindsay Wilson v IPM Operation & Maintenance Loy Yang Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1828 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering only – permanent impairment of the plaintiff’s lumbar spine – whether the pain and suffering consequence was more than significant or marked or at least “very considerable”–
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | David Purcell | Ryan Carlisle Thomas |
| For the Defendant | David Podger | Minter Ellison |
| HER HONOUR: |
Introduction
1 Uncontroversially on 20 January 2004 whilst employed by the defendant at the Loy Yang Power Station the plaintiff injured his lower back in the course of his employment.
2 By originating motion filed on 14 April 2010 the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of pain and suffering damages only.
3 The application is made under paragraph (a) of the definition of serious injury; that is serious permanent impairment or loss of function of the plaintiff's lumbar spine due to aggravation of degeneration at the L4 -5 and L5-S1 levels with associated radicular pain into his left leg, without any diagnosis of radiculopathy.
4 The circumstances giving rise to his injury were explained by the plaintiff in paragraph 6 of his affidavit sworn on 11 November 2009 where he said:
"… I had to drag a steam lance, which is a type of tube/pipe used to direct steam flow. The lance was about 9 1/2 m long and I estimate weighed around 80 kilograms. The system of work in those days was to use a soft sling to drag the lance. I was working with other people but it was still heavy work. As I was dragging the lance, I developed pain in my back and pain into my left leg…" [1]("the incident").
[1] Plaintiff's Court Book ("PCB") 19.
5 The plaintiff is 54 years of age and married. He attended school to year 10. After leaving school, he completed an apprenticeship and worked as a motor mechanic for a period of time. He then worked in construction fitting followed by employment with the State Electricity Commission of Victoria. In about 1993 the plaintiff commenced employment with the defendant at the Loy Yang Power Station in Traralgon.
6 The plaintiff worked full time for the defendant and performed the duties of a mechanical technician. This involved the maintenance and operation of the power plant. He described this as heavy work.
7 In mid 2006, the plaintiff transferred to the Pelican Point Power Station where he performs similar duties as a mechanical technician maintaining and operating the power plant. He works full-time. In cross-examination the plaintiff explained that as the Pelican Point Power Station is a smaller operation with less auxiliaries, his current duties are not as heavy. Nevertheless, the plaintiff conceded that:
• his current position was still a moderately physical job; • he needed to move around the power station; • he still needed to climb ladders; • there was still some bending and stooping; • at times he needed to access objects below waist height; and • there were no formal restrictions applying to this work. 8 The plaintiff said that currently he spends four hours a day working on the computer at bench height and a further four hours a day working on tools, that is maintaining pumps or valves. He described the latter as moderate work for which assistance is available and he is able to modify how he performs this work, although in a typical week he said he still needed to take painkilling medication once or twice to deal with back pain.
9 Relevantly, the plaintiff also deposed that there were times when he struggled with increased back pain after going home from work. He also explained that at work he had difficulty if he had to go up or down stairs on more than one or two occasions in a single shift because this activity increased his back pain.
The Legal Requirements (in summary)
10 To succeed, the plaintiff must prove a compensable injury and that the pain and suffering consequences of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of the lower back, are more than "significant" or "marked" and at least "very considerable".
11 In summary, the plaintiff is required to establish a compensable injury after 20 October 1999 which, by definition, includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease; the nature of the injury; the consequences as at the date of hearing, in this case only the pain and suffering consequences, to which compensable injury materially contributes; and that these consequences are serious in the sense that they are permanent and "very considerable".
12 Any psychological or psychiatric consequences of the plaintiff's physical injury cannot be taken into account in determining this application for leave under paragraph (a) of the definition of serious injury. This was not an application complicated by non-organic factors.
The Areas of Contest
13 In its Statement of Issues and at hearing the defendant conceded that as a result of the incident the plaintiff had probably suffered an aggravation injury at the L4- L5 and L5- S1 levels of his lumbar spine and aggravation of facet joint degeneration causing pain and stiffness of his lower back and referred pain to his legs. Nevertheless, the defendant:
•
noted that the plaintiff had continued in full-time employment in the same capacity as when he suffered his lower back injury, albeit at a different location; and
•
contended that the plaintiff's injury had not been productive of any impairment of his spine which could be fairly described as at least very considerable.
The Evidence Called and Tendered
14 Subject to correcting the date of an earlier work-related back injury to "late 1999" and the order in which he attended his neurosurgeon, Mr Davies and his chiropractor, Dr Todd, the plaintiff deposed to the accuracy of his affidavit affirmed on 11 November 2009. With the leave of the Court, the plaintiff gave further evidence in which he also updated his evidence as to his treatment regime.
15 The material tendered by the plaintiff consisted of his Court Book from which a number of documents had been removed. His Court Book included an affidavit from a friend of 18 years, John Luke sworn on 5 November 2010. He was not cross-examined. Mr Luke’s evidence generally corroborated the plaintiff’s evidence that due to his injury he had to stop playing baseball, which he had previously played at Masters level, and that he had also ceased his coaching activities.
16 The defendant tendered its Court Book.
17 I have found the plaintiff to be a straightforward witness who had not sought to embellish or exaggerate either his injury or its consequences. Indeed, the plaintiff struck me as a man who was not the sort of person to complain or allow his condition to prevent him from getting on with his work and life. His credit was not challenged nor was his account of his pain consequences and the impact of his disability.
The treatment received
18 The plaintiff first sought treatment from his general practitioner, Dr Lake following the incident in late February 2004. He apparently attended three times in February/March 2004 and thereafter the plaintiff attended for treatment once every two or three months until he transferred to the Pelican Point Power Station and he moved with his family to South Australia.
19 In this period the plaintiff also had an x-ray of his back, he took painkilling and anti-inflammatory medication (although as he deposed in his affidavit and confirmed at hearing the plaintiff avoided taking medication), he attended for physiotherapy regularly, he undertook a home exercise program and at some stage he also undertook hydrotherapy.
20 It appears that at some stage in February/March 2004 the plaintiff also sought treatment from a chiropractor, Mr Todd who ordered an MRI scan of his lumbar spine. Relevantly, on 10 March 2004 the radiologist reported the following conclusions:
"1. At L5/S1, asymmetric broadbased bulge extends to the left foramen, superiorly displacing but not compressing the left L5 nerve. There is associated moderate to marked left facet joint degeneration.
2. Asymmetric broadbased bulge at the L4/5 extending into the right foramen, displacing and mildly compressing the right L4 nerve. There is associated facet joint degeneration but no canal stenosis.
3. Mild broadbased disc bulges elsewhere with minor retrolisthesis at L3/4 and L2/3…"[2][2] PCB 56.
21 The plaintiff also sought treatment from neurosurgeon, Mr Davis on referral from Dr Lake. In his only report dated 18 March 2004 Mr Davies informed the general practitioner that, having reviewed the plaintiff and notwithstanding his complaints of low back pain, left-sided sciatica and progressively deteriorating symptoms, he suspected that the plaintiff's symptoms were more related to degenerative facet joint disease, for the treatment of which he recommended a facet joint block on the left side.
22 In cross examination the plaintiff agreed that he had not had facet joint injections. However, in his affidavit the plaintiff also deposed that, having also discussed surgery with the neurosurgeon, he had been advised that there was only a 50% prospect of this relieving his pain. Allowing for his responses during cross examination I was satisfied that in addition to any discussion of facet joint injections, the plaintiff probably also discussed with his surgeon the likely success or otherwise of surgical intervention.
23 The plaintiff is clearly a man who is determined to get on with his work and life. By his account, despite his ongoing difficulties after performing light duties for a good month and a half to two months at the rate of four hours per day until, as he said in cross examination, he "could handle it,"[3] he returned to his full-time duties. However, as the plaintiff deposed, due to financial constraints and because he enjoyed being at work, at times he went to work in pain or did work that aggravated his pain.
[3] Transcript ("TN") 17.
24 The plaintiff commenced attending general practitioner, Dr Harb and physiotherapist, Mr Kocher after transferring to work and live in South Australia.
25 The general practitioner's reports are not particularly informative although they help corroborate the plaintiff’s evidence that he continues to obtain prescriptions for pain control and he attends physiotherapy regularly.
26 The physiotherapist's two reports submitted in May 2009 and April 2010 are somewhat more informative. For instance, Mr Kocher confirmed that he has treated the plaintiff from October 2006 for ongoing low back pain radiating to both right and left sides with pins and needles and numbness in the plaintiff's left leg associated with left leg sciatica. It appears that the plaintiff has attended regularly for mobilisation and manual therapy, either once a week or once a fortnight reporting fluctuating low back and left leg symptoms depending on the activity undertaken at work or at home. In the 3 to 4 year period over which he has treated the plaintiff, the physiotherapist has noted that his patient experienced several significant flare-ups which had responded to local treatment. In any event, it appears that with treatment and medication the plaintiff has been able to remain functional and to continue to work full- time with an employer who is responsive to his needs.
27 Apart from explaining his efforts to avoid taking medication, in his affidavit the plaintiff deposed to using Tramadol about once a week when his pain levels were such that he needed it. However, as I have already mentioned, in his evidence in chief the plaintiff said that some 8 to 10 months earlier Dr Harb, who he consults nearly every three months, commenced prescribing Panadeine Forte which he takes "not so much during the week"[4] but rather on weekends to support his involvement in umpiring baseball. In re-examination the plaintiff clarified this evidence by explaining that he probably takes Panadeine Forte 3 to 4 times a week, that is two tablets at a time, and that when he is umpiring he takes two tablets at a time more than once to get through each game because umpiring hurts his back.
[4] TN 14.
28 In addition to medication the plaintiff said that in the last 12 months he has consistently attended physiotherapy on a weekly basis although there have been periods when he has tried, as it turns out unsuccessfully, to extend the time between sessions.
The Medico-Legal Evidence
29 The plaintiff tendered reports from orthopaedic surgeons, Prof Marshall following his assessment of the plaintiff at the request of the insurer on 4 March 2005 and from Mr Westh following his assessment of the plaintiff on 12 March 2010 at the request of the plaintiff’s solicitors.
30 Against a background of asymptomatic spondylosis and following a low back strain injury and aggravation of the degenerative condition, in 2005 Prof Marshall accepted that the plaintiff suffered from ongoing symptoms of lower back and leg pain. He diagnosed mechanical low back pain without there being evidence of radiculopathy. He also accepted the ongoing relationship between the work injury and the plaintiff’s symptoms and recommended that the insurer continue to support, amongst other things, physical treatments such as physiotherapy and hydrotherapy which Prof Marshall viewed as essential to the plaintiff undertaking his work and daily activities.[5]
[5] PCB 32-36.
31 More recently Mr Westh confirmed this diagnosis and reported clinical findings which indicated, amongst other things, that the plaintiff continued to suffer from a painful restricted range of movement in his spine. In Mr West's opinion the impairment of the plaintiff's lumbar spine is permanent in the sense that it is likely to last for the foreseeable future. He summarised his opinion as to its impact on the plaintiff in the following words:
".. he will continue to experience mainly activity related pain and he is restricted in his ability to lift and bend. He has reduced capacity to sit or stand for long periods. Mr Wilson would be unable to do the heavy work that he was engaged in at the time of his injury as this involved a lot of heavy lifting and bending. He is however capable of working in a light duty capacity and is currently coping with his job as mechanical technician.
As a result of the physical impairment to his lumbar spine he does have some reduced capacity to engage in social, recreational and domestic activities."[6]
[6] PCB 54.
32 In addition to Mr Davis' short report, which I have already summarised, and Prof Marshall's report the defendant relied on the independent assessment report provided by orthopaedic surgeon, Mr Battlay who on 31 July 2009 assessed the plaintiff's impairment for the purposes of s98C of the Act. Amongst other things, Mr Battlay reported that in his view the plaintiff was permanently disabled by work-related lower lumbar disc derangement without radiculopathy.
33 As part of my consideration of the pain and suffering consequences on which the plaintiff relied I have also given weight to Mr Battlay's report in which he recorded that the plaintiff:
".. describes the pain as affecting the L4-5 segment in the back spreading into the flank on the left side and the left leg as far as the calf when the pain is at its worst. There is no numbness. Generally he has pain from twisting or lifting and sitting for more than a couple of hours. He denies impulse symptoms. He can walk up to 2-3 kms and then his left leg drags a bit. He denies any bladder or bowel problems."[7]
[7] DCB 8.
34 This leads me to my discussion of the plaintiff's pain and suffering consequences.
The Pain and Suffering Consequences Alleged
35 The plaintiff has a previous history of work-related lower back injury in about 1999 from which he said that he had recovered quickly and after which he returned to full-time employment. Accordingly, apart from some sporting injuries which he said give rise to an occasional knee ache and the ongoing impairment of his lumbar spine, the plaintiff presented as someone who was otherwise in good health.
36 In his affidavit the plaintiff deposed that he has a base level of pain in his back which fluctuates and is at times stronger back pain. He also deposed to at times feeling like an old man and being stooped due to back pain. Whilst the plaintiff said that he continues to have regular pain in his left leg he also acknowledged that this had improved in the time since he sought treatment from Mr Davis. However, in his evidence at hearing the plaintiff said that since affirming his affidavit in November 2009 his back condition has marginally worsened.
37 The pain and suffering consequences were generally described in paragraphs 14 to 20 inclusive of the plaintiff's affidavit with some explanation provided through the responses given during cross-examination and re-examination.
38 In summary the pain and suffering consequences to which the plaintiff referred included:
•
Pain. I have already described some of the impact of pain on particularly the plaintiff's working activities and his treatment and medication regimes which help him control his pain levels and remain functional. He also said that pain interfered with his sleep;
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restrictions on his domestic and recreational activities. For instance, the plaintiff said he found both gardening and whipper snipping difficult, the latter because this activity involved continual bending which caused pain. Whilst he tries to walk his dog at least a couple of times each week over a distance of about 2 km the plaintiff said that he struggled on the return journey and that he usually suffers strong pain in his back and left leg;
•
the significant impact on his participation in baseball. It seems that the plaintiff has been involved in the sport of baseball for most of his life, a game he said he loved. It is a family passion because his father, his children and his grandchildren are all involved in the sport. Prior to being forced by his back injury to give this up the plaintiff was still playing baseball at a Masters level. Masters baseball covers players from 35 years upwards. Apparently those who remain fit may even play into their 60s or 70s. No doubt this had been the plaintiff's hope and expectation because, having previously been a fit and healthy man, the plaintiff said that he had intended to keep playing until he could no longer play. Baseball is a game involving World Masters and Australian Masters levels, which had previously offered the plaintiff the prospect of international and national travel. In re-examination the plaintiff said that whilst he would like to continue playing he had tried but could no longer hit or throw. Nevertheless the plaintiff and his family maintain their strong interest in the sport and he has taken up umpiring at state level which is the highest level of competition played at various locations around South Australia. The plaintiff umpires at Division 1 level. This means he must drive to different locations which he said were usually within 20 to 30 minutes. He agreed that umpiring requires a level of fitness which he has maintained although, as he explained in his affidavit and in re-examination, notwithstanding his use of painkilling medication, by the time he returns home from umpiring he usually needs to have a spa to gain some relief from his symptoms;
• an inability to play social golf, a game he also previously enjoyed. •
difficulty playing with his 11 grandchildren, some of whom live in Victoria. It is also difficult for the plaintiff to visit distant family members because if he sits too long in a car this increases his back pain.
Findings
39 This is a very straightforward application for leave made by a hard-working and highly motivated middle-aged man who some six years ago suffered a significant and compensable injury by way of aggravation of degeneration at the L4-5 and L5-S1 levels of his lumbar spine with associated radicular pain in his left leg. Injury-related impairment continues to make a material contribution to the pain and suffering consequences I have summarised. The plaintiff's counsel described his client as a stoical man. It is probably a fair description of someone who is not given to complaint or embellishment and who, rather than cease any active involvement in baseball, fortifies himself with strong painkilling medication so as to umpire games.
40 Based on all of the evidence I find as follows:
• in his early middle age the plaintiff has a permanent impairment of his lower spine which causes a constant base level of pain in his lower back. His pain fluctuates according to the plaintiff's work or other activities and it also involves flare-ups of pain. In this regard counsel rightly emphasised the plaintiff's regular use of strong painkilling medication and the comments of Ross AJA in Tatiara Meat Co Pty Ltd v Kelso[8] where he said: "the endurance of daily pain requiring frequent medication must, according to ordinary human experience, raise a very real prospect of a "very considerable" consequence;." • that ongoing treatment such as regular physiotherapy and medication is essential to the plaintiff maintaining full-time work and his daily activities; • for this plaintiff his inability to play sports and particularly baseball represents a very significant loss of enjoyment of life; • notwithstanding the plaintiff's return to full-time work, as Mr Westh has observed the plaintiff probably only has a light work capacity, which at a comparatively young age suggests that for the balance of his working life he is vulnerable should the plaintiff have to leave his long-term employment with the defendant. [8] [2010] VSCA 12 at para 75.
41 In addition to the Kelso decision, during the course of submissions I was also referred to the Court of Appeal decisions in Dwyer v Calco Timbers Pty Ltd (2)[9] and to Haden Engineering Pty Ltd v McKinnon.[10] These are all decisions which have assisted me in determining that, when judged by comparison with other cases in the range of possible impairments of the lumbar spine, the pain and suffering consequences of the plaintiff's injury related impairment are probably more than "significant" or "marked" and at least "very considerable".
[9] [2008] VSCA 260.
[10] [2010] VSCA 69.
Orders 42 In these circumstances, I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect of pain and suffering damages only for injury to his lumbar spine on or about 20 January 2004. I will hear from the parties as to the making of appropriate orders.
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