Martin v Victorian WorkCover Authority
[2021] VCC 293
•23 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04773
| ANDREW GLEN MARTIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 December 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 23 March 2021 | |
CASE MAY BE CITED AS: | Martin v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 293 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lower back – paragraph (a) of the definition of “serious injury” – pain and suffering and economic loss damages
Legislation Cited: Accident Compensation Act 1985, s134AB; Transport Accident and Accident Compensation Legislation Amendment Act 2010, s64
Cases Cited:De Bono v Victorian WorkCover Authority [2019] VSCA 85; Ansett Australia Ltd v Taylor [2006] VSCA 171; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Petkovski v Galletti [1994] 1 VR 436; Transport Accident Commission v Florrimell [2013] VSCA 247; Lexa v Transport Accident Commission [2019] VSCA 123; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dahl v Grice [1981] VR 513; Jones v Dunkel (1959) 101 CLR 298
Judgment: Application for loss of earning capacity consequence dismissed. Leave granted to commence a proceeding for the recovery of damages for pain and suffering consequence.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC | Robinson Gill |
| For the Defendant | Mr P Jens QC with Ms C Spitaleri | Russell Kennedy Lawyers |
HIS HONOUR:
Introduction
1This is an unusual application. In June 2020, Andrew Martin applied for leave to start a proceeding to recover damages under the Accident Compensation Act 1985 (“the Act”) for injuries suffered two decades earlier on 29 August 2000. He relies on paragraph (a) of the definition of “serious injury”. As to the “serious” component, he relies on consequences to him with respect to pain and suffering and loss of earning capacity.
2The defendant opposes the application on two bases. First, Mr Martin cannot prove he continues to suffer from an injury to his lower back caused on 29 August 2000. Second, he does not satisfy the “very considerable” test, whether for pain and suffering consequence or loss of earning capacity consequence.
Circumstances
3Mr Martin is now 40.[1] He was educated to Year 11 level although uncertain whether he passed the year.
[1] Born in September 1980
4Six years ago, he separated from his long-term partner. They have two children, a boy aged 11 and a girl aged 17. The children live with his estranged partner.
5In 1998, Mr Martin started working for Nulite Windows (Vic) Pty Ltd (“the employer”) as a transport assistant, which largely involved travelling to work sites in a truck and assisting the driver to load and unload its cargo.
29 August 2000
6This application concerns an alleged injury to Mr Martin’s lower back. In his affidavit, Mr Martin vaguely describes the event resulting in this injury:[2]
“On or about 29 August 2000, I suffered an injury to my lower back in the process of unloading aluminium window frames with a co-worker.”
[2] Affidavit sworn 9 June 2020 at paragraph [7]
7More detail emerges from the description he gave the surgeon, Mr Carey:[3]
“… with another worker he was carrying a 2100mm x 1800mm window. He told me he had clay on the base of his boots, and had to walk across a wet concrete slab. In the process of doing this, he slipped and fell whilst holding the window, landing in the sitting position but primarily on his left buttock … .”
[3] Report dated 3 September 2019 at p2
8He felt great pain in his lower back. Although his movements were restricted by the pain, he was told to continue working until the job was finished, which he did. After returning to the employer’s factory, he was driven to the Carrum Downs Medical Centre where he saw a general practitioner, Deepak Aggarwal.
9To Dr Aggarwal, Mr Martin complained of pain in his upper back and left flank without radiation into the legs. Dr Aggarwal found he was tender over third and fourth thoracic vertebrae and over his left flank. The range of movement of the thoracic spine was normal although there was pain at the end of the range. He prescribed anti-inflammatory medicine, ice and then heat. He certified him fit for light duties for two days before resuming normal duties.
10Mr Martin returned to work on 31 August 2000 but not as a truck jockey, for he was assigned the work of a factory hand. The employer did so because of the soreness of his back, the problems he experienced and the lifting restrictions imposed by the general practitioner.
11On 5 September 2000, Dr Aggarwal saw him again. He reported back pain with lifting or standing in the same position too long. He was tender over the T3, T4 and L5 vertebrae. His range of movement remained good with pain at the end of the range of each movement. He recommended Panadol or Panadeine as Voltaren was not helping. He certified him fit for light duties between 5 and 9 September 2000.
12On 8 September 2000, Mr Martin told Dr Aggarwal of improvement. However, he was wearing a back brace. For the next week, the doctor certified him for half time normal duties and half-time light duties.
13On the same day, Mr Martin completed a Claim for Compensation.[4] He described his injury as a “back sprain” and described the circumstances: “slipped on concrete wet slab when holding window frame”.
[4] Plaintiff’s Court Book (“PCB”) at p 1-2
14There were further attendances on Dr Aggarwal on 18, 22, 29 September and 13 October 2000, which was the last time Dr Aggarwal saw Mr Martin in relation to his back. For that visit, the doctor recorded:[5]
“… he reported the back was better with less pain. He was slightly tender in mid thoracic and lower lumbar spine. His range of movement was good. He was certified fit for normal duties and I encouraged him to keep up an exercise program.”
[5] Report dated 13 May 2020 at p 2
15Dr Aggarwal expected a full recovery. He did see Mr Martin for other complaints in 2000, 2001 and 2003 and, perhaps other times, but not again for his back until 4 August 2003.[6] That visit arose out of Mr Martin’s attack on his father by punching and kicking. Although his father did not strike him, Mr Martin complained of a sore back and heavy left arm. On examination, the back was not tender but the arm was “heavy” on abduction to 90 degrees.
[6] PCB 81
16The employer was unsympathetic to Mr Martin’s condition and ended his employment in about December 2000, saying his original job as a truck jockey was unavailable and the work of the business had slowed.[7]
[7] Report dated 1 October 2020 at p 4
17Meanwhile, in about 2003, Mr Martin formed a relationship with Tina Hawkins. He met her at a nightclub. At the time, he was socialising regularly.
18Mr Martin was unemployed until late 2003 or early 2004, when he obtained work as a factory worker with Phoenix Balustrades. He cut aluminium to make pool fences and handrails. Once aware of his back problem, the owner of the business, Peter Burghard, paid for a back brace and insisted Mr Martin wear it whenever lifting. He also insisted if he had to lift anything big or heavy, he must be assisted by another employee.
19At this time, Mr Martin’s then general practitioner at the Marina Medical Clinic sought CT scanning of his lower back. On 26 September 2005, scans were taken and a radiologist reported:
“Slight posterior bulging of the annulus of the lumbosacral disc is present but no focal disc protrusion is seen.
The bulging annulus of the lumbosacral disc makes contact with the dural sac but does not deform it.
A defect is noted in the left pars inter-articulares of L5, but no misalignment is seen at the lumbosacral level.
The spine appears otherwise normal.”
20There is no record of what, if anything, the general practitioner did after receiving this report. Judging from Mr Martin’s evidence, his boss at Phoenix saw the report and insisted Mr Martin always were a brace while at work and must get help when lifting[8].
[8] Transcript (“T”) 22
21In February 2007, his general practitioner referred him to a psychologist, Karen Mansfield. He was then suffering from severe depression and anxiety. She anticipated weekly counselling and asked the doctor to discuss medicines to relieve the symptoms.
22Despite the job lasting about five years and a sympathetic employer, his employment with Phoenix Balustrades ended colourfully:[9]
“… it was just the fact that this guy’s brought his wife to work and we found out years earlier she was my girlfriend. Now everyone knew that I had slept with his wife …
And as a consequence, the boss said, ‘Well, look, I’m sorry, but to sort this one out one of you has to go? – Yeah, I found it slightly amusing but I mean I also felt pretty bad for the guy even though I didn’t like him.”
[9] T25-26
23After leaving Phoenix Balustrades, Mr Martin was unemployed for a time. He then gained employment with Bluestone Personnel, a labour hire business, driving a forklift truck. He did this for a short period, leaving over a wage dispute:[10]
“They owed me money and they didn’t give it to me and then they tried to tell me that they give it to me when they didn’t, so I let them book in a few jobs and I didn’t turn up to any of them.”
[10] T73
24Although Mr Martin says 2007, it was probably in about 2009, he began as a factory worker at Kingsway Confectionary. This job lasted for slightly less than a year. It was full-time with 40 hours worked over four days. He worked on a factory line, tipping 20 kilogram boxes of lollies into a steel box, which shook the lollies onto a conveyor belt. The work turned out to be heavy:[11]
Q:“And the Kingsway Confectionary work was pretty heavy work wasn’t it?---
[11] T26
A: Yeah, it wasn’t – the job wasn’t meant to be – I got scammed.”
25In re-examination, Mr Martin again described the job as “hard”, adding “it was the lifting, the tipping, it was a crap job” and apparently he was not working fast enough.[12]
[12] T96
26The work was a steady, not continuous, process of opening boxes and emptying their contents into a bin which fed the lollies onto a conveyor belt. There were other occasional duties, unloading a truck or cleaning “sticky stuff” off the factory floor. There were three breaks during the day.
27His employment ended in these circumstances. While the factory manager was on leave, the owner of the business came to the factory and increased the rate of production of the machine operated by Mr Martin. The owner was upset with Mr Martin’s work and told him not to come to work the next day. Since it was unclear when Mr Martin would next work, he resigned. Indicative of a deeper malaise, when Mr Martin went to collect his wages, he was accused of theft.
28Mr Martin then worked for Stairform, initially as a labourer, grinding the back of weld risers on stairs and then driving forklift trucks. Stairform made metal moulds from which concrete stairs were constructed. He lost this employment because of what he describes as “reverse racism”. The business started employing Indians and Sri Lankans and dismissed those who were not Indian or Sri Lankan. He was there for about a year. By early 2009, he had left Stairform, took his dismissal to the Fair Work Commission and was awarded compensation of $1,500.
29Mr Martin then worked for Playspace Playgrounds for less than a year. His role involved preparation of materials for installation of playgrounds, which included packing grab rails, posts and poles into bubble wrap and drilling blocks together. He was dismissed from this employment due to friction with a fellow employee. Again, he approached the Fair Work Commission and was awarded compensation, possibly $3,000. He considered his boss a good person who did not know what was going on in his business. To Mr Martin, his claim for compensation was to send the boss a message about the state of his business. Although the possibility of returning to Playspace Playgrounds was raised, he did not because he had found another job.
30In 2009 or possibly later, Mr Martin started with 3D Windows as a glazier. It was full-time employment. It involved lifting. Although the job involved lifting panes of glass and inserting them into timber frames and lifting and carrying door frames his employer was aware of his back injury and ensured he worked within restrictions. His job also involved some forklift driving.
31In 2009, Mr Martin was involved in an incident with the police. It was thought his daughter was missing from her home. By the time the police arrived, she had been found. Mr Martin would not allow the police to enter the property. The matter escalated. He was sprayed with capsicum foam, held down physically and handcuffed. While washing the foam from his face, the police managed to get water into his mouth, so much so he thought he would drown.
32According to his psychologist, this incident exacerbated the symptoms of his post-traumatic stress disorder and he became extremely fearful and apprehensive of contact with the police.
33In about 2011, the condition of his lower back worsened and he sought treatment. Further CT scanning of his lower back occurred on 26 September 2011. The scanning examined the entire lumbosacral spine. The radiologist concluded:
“1. Left sided L5 pars defect but no anterolisthesis of L5 on S1.
2.Degenerative changes as described but no evidence of a focal disc protrusion, nor of any major canal stenosis.”
34Since 2012, he has been treated at the Skye Medical Centre. He tried physiotherapy again but stopped because it increased his pain. He continued taking Panadeine Forte.
35In June 2013, his general practitioner wrote to an authorised agent seeking permission to investigate the recurrence of symptoms similar to those experienced in the fall[13]: “recurrent nervy pain in the low back region radiates to groin, and down the legs..”.
[13] Letter dated 18 June 2013 from Dr Tan
36He lost his job with 3D Windows in September 2013. He was dismissed through failing to come to work following an assault that month and a subsequent heated exchange with a co-owner of 3D, Daniel Strode. The assault occurred away from his workplace. Had he not been dismissed, he would have continued working for 3D Windows.
37Mr Martin brought a claim in the Fair Work Commission. His claim was dismissed. He remains puzzled by the dismissal but seems to suggest too much latitude was allowed to the employer in the hearing.[14]
[14] Transcript at p 70
38The defendant tendered the decision of Deputy President Gooley in the Fair Work Commission.[15] It is clear on the important issue of warnings, the Deputy President preferred the evidence of the two witnesses for 3D Windows to that of Mr Martin. Those witnesses saw the underlying problem as the declining quality and quantity of Mr Martin’s work.
[15] Dated 28 February 2014
39Mr Martin was disheartened by his loss of the job and did not look for work for some time:[16]
“I felt as though I had worked hard despite my significant back pain and still lost my job. I was then depressed, drinking heavily and smoking marijuana daily.”
[16] Affidavit sworn 9 June 2020 at paragraph [22]
40In about 2015, Mr Martin obtained a Certificate II in automotive body refinishing. “Refinishing” means spray painting. He believed he could not do spray painting long-term but was “willing to power through for four years just to get the papers and show my kids. If you want something you can do it”.[17]
[17] T70
41On 11 August 2015, CT scans were taken of his lumbosacral spine. Owing to its importance, the radiologist’s findings of the scans were:[18]
“There is evidence of a left-sided pars defect at L5 level with no associated spondylolisthesis. The height of the vertebral bodies are maintained. There is no other degenerative change noted. There is mild broad-based posterocentral disc bulges noted at L4/5 and L5/S1 levels with no narrowing of the spinal canal or neural foramina. There is no pre- or paraspinal soft tissue abnormality. Both sacroiliac joints are normal.
Conclusion: Left-sided pars defect at L5 level with no associated spondylolisthesis. Minimal broad-based posterocentral disc bulges at L4/5 and L5/S1 levels with no neural compromise.”
[18] Report dated 11 August 2015
42In September 2016, a consultant psychiatrist. Peter Heffernan, wrote to Mr Martin’s general practitioner advising it was pointless seeing him until he was admitted into a long-term residential drug/alcohol rehabilitation programme.[19] It is unclear what Dr Heffernan was offering him.
[19] Letter dated 6 September 2016 to Dr Zhong-Mei Liu
43In November 2016, Rowan Haputhantrige, a consultant psychiatrist, saw Mr Martin at the request of his general practitioner.[20] He diagnosed adult Attention Deficit Disorder but declined to prescribe stimulants until Mr Martin stopped using cannabis.
[20] Letter dated 29 November 2016
44Between 11 November 2016 and 20 December 2016, Mr Martin worked for two companies, Sandblasting International Pty Ltd and Schweitzer Constructions Pty Ltd, earning a gross amount of $7,722.00. He resigned that job due to stress, explaining:[21]
“You know, a junkie wanted to beat me up because I was going home after I stayed back, you know, I’m a pretty easy going person, I don’t like conflict, I have never hit anybody that didn’t try and hit me first, okay. I could have fought but I’m 40, mate.”
[21] T93
45In about March 2017, his qualification enabled Mr Martin to obtain a full-time position as a spray painter’s assistant with American Vehicle Sales:[22]
“My duties involved painting and buffing cars. Leaning over to buff the cars in particular caused an increase in back pain. I was also enduring pain in my hands, arms and shoulders following the police assault.”
[22] Affidavit at paragraph [23]
46He gave a fuller description of his duties to an occupational physician, Dr Horsley:[23]
“His role involved some spray painting, but primarily preparation. It involved rubbing and sanding panels which involved using over-spraying film or paper. He also did hand buffing which he had the greatest difficulty with. This was an electric buff. To buff, he had to truncally rotate and also statically forward flex to hold the buffing machine against the panels. This caused stiffness and pain.”
[23] PCB 59
47One now comes to 9 June 2018. Mr Martin visited the home of his estranged partner, Ms Hawkins.[24] He drove there from work with the trip taking an hour to an hour and a half. The family went to McDonalds for a meal. Afterwards, he watched television and then went to work on his vehicle in the garage at Ms Hawkins’ home. He went back and forth into the house but spent a lot of the time in the garage, not always working on the vehicle. The early hours of the next morning found him talking to his 14 year-old daughter. Ms Hawkins became upset. She told him to leave, he did not and she called the police. The police arrived and one of them in particular assaulted him in what he called an unprovoked “frenzied bashing”. Mr Martin suffered injuries in this assault.
[24] Statement made 10 June 2018
48In August 2018, Mr Martin’s general practitioner referred him to a pain clinic following this incident. To his general practitioner, he complained of pains over all of his body.[25] The pain clinic is part of Peninsula Health at Frankston Hospital.
[25] Letter dated 29 August 2018
49On 19 November 2018, an ultrasound of his right shoulder revealed mild tendinosis of the supraspinatus and subscapularis with no discrete tear. There was subacromial bursal thickening with impingement, which was compatible with bursitis[26].
[26] Report dated 19 November 2018
50There were lasting injuries to his arms, wrists and neck. The injuries to his arms taking more than a year to reach their current state of causing slight pain. After this incident, Mr Martin was taking ten to twelve Panadeine Forte tablets daily as well as a muscle relaxant and Valium. Before the incident, he took Panadeine Forte for his back.
51On 30 January 2019, he completed a claim for impairment benefits, which he lodged.[27] He described the injury as “back injury with secondary buttock, hip, knee, leg, ankle and feet pain”.
[27] PCB 6-9
52On 7 February 2019, Mr Martin received an “official letter of warning” from his employer.[28] The letter complained about his preparation of wind deflectors for painting and his threats of violence to a fellow employee. For the deflectors, the complaint is about his failure to use the correct procedure: he was taking too long, or his work had to be redone. It foreshadowed the end of his employment if his preparation of the deflectors did not reach the required standard.
[28] Defendant’s Court Book (“DCB”) 73
53In February 2019, his general practitioner sought the assistance again of Dr Haputhantrige, this time arising out of the incident with the police.[29]
[29] Letter dated 18 February 2019
54In March 2019, there were ultrasounds taken of the right wrist and right shoulder[30].
[30] Report dated 25 March 2019
55In April 2019, he was seen at the persistent pain management unit at Peninsula Health for pain around his right shoulder, which he attributed to the incident with the police[31].
[31] Letter dated 3 April 2019
56On 26 April 2019, he lost this job. To Mr Martin, he was dismissed because of the amount of time he would need to take off from work due to appearances in court over the police incident: “… their attitude was just they wanted to get rid of me because I was going to need too much time off”.[32] Although he believes his injuries played no part in his dismissal, whether to his lower back or those sustained in the police incident, this employer started timing how long it took for him to do tasks.
[32] T70
57Mr Martin has not worked since then and now receives Centrelink payments.
58In May 2019, Dr Haputhantrige wrote to Dr Liu advising since the prescription and use of dexamphetamine, Mr Martin’s condition had been “pretty” stable. He was more organised, able to be more focussed and manage his life better.[33]
[33] Letter dated 14 May 2019
59On 5 June 2019, CT scans were performed on the entirety of Mr Martin’s cervical spine.[34] The findings were largely normal except for early, very mild or mild foraminal stenosis in five discs and some osteophytic spurring of the uncovertebral joints.
[34] DCB 24-25
60On 25 July 2019, there were MRI scans of his cervical spine.
61On 16 January 2020, an authorised agent wrote to Mr Martin, advising of the assessment of the degree of impairment of his entire spine by the Medical Panel.[35] Since the assessed impairment fell below the threshold, no impairment benefit was paid. To reach the stage of an assessment by the Medical Panel, the agent had accepted Mr Martin had suffered an injury to lower back arising out of or in the course of his employment with the employer and, specifically, the fall.
[35] PCB 10-17
62On 10 June 2020, his general practitioner, Dr Zhong-Mei Liu, issued a certificate for Centrelink.[36] She identified the primary condition affecting Mr Martin as Major Depression and Anxiety with the secondary and related condition being “pain after assault by policemen”. Both the primary and secondary conditions were described as temporary. She estimated both would affect his capacity to work or study for 13 to 24 months. Apart from this estimation, she certified him unfit for work or study from 10 June 2020 to 9 September 2020 with the degree of unfitness being he could not undertake his usual work or study and could not do any other work for more than eight hours or more per week. Dr Liu made no mention of his lower back.
[36] DCB 71
63On 19 October 2020, further MRI scans were taken of Mr Martin’s lumbar spine.[37] Among other things, the radiologist found slight anterolisthesis of L5 on S1 (2 millimetres), moderate to severe right L5-S1 foraminal narrowing compressing and potentially narrowing the exiting right L5 nerve root and mild to moderate right L4/5 foraminal narrowing.
[37] Report dated 11 November 2020.
64On 7 March 2018, Mr Martin attended Dr Liu at the Skye Medical Centre. She described the attendance as “back pain review”. She prescribed Panadeine Forte and requested CT scanning. Thereafter, until 19 June 2020, he attended the medical centre on 46 occasions. These attendances were mainly concerned with the injuries received from the police and none records complaints about his lower back. Then on 14 and 15 July 2020, the issue of his lower back was raised and Dr Liu requested MRI scanning.
65For many years, Mr Martin has held a forklift licence.
Present situation
66Mr Martin lives with his mother in Carrum Downs. She is ill and he cares for her.
67In 2007, he was diagnosed as suffering from severe depression and anxiety. He still sees Ms Mansfield for counselling.
68In 2016, he was diagnosed as suffering Attention Deficit Hyperactivity Disorder for which he takes Dexamphetamine daily. It helps his concentration.
69Mr Martin suffers constant pain in his lower back. Normally, the level of pain is 3 out of 10. It increases with extended periods of sitting, standing, bending, lifting and walking. It then becomes excruciating. When the pain is excruciating, he rests. Alongside the pain is stiffness. The pain is not confined to his lower back. It includes his entire left lower limb, particularly, in the groins and hip area.
70Mr Martin takes Panadeine Forte for his painful lower back. Sometimes, he takes four tablets at the same time followed by two or three tablets not long afterwards. If he takes too many tablets his skin itches, he feels drowsy and becomes constipated.
71The pain causes him to change the way he relates to his children. He gave an example of playing kick to kick football with his son where he lets air out of the football so that kicking it is easier on his back. Even so, afterwards, he must take Panadeine Forte tablets and then rest. He often fishes with his son, but his back is painful while fishing and intensely so afterwards.
72The back pain prevents him putting his socks on. He cannot sit in a car for long periods. His back pain causes him to wake up regularly at night. This leaves him tired and lethargic.
73Due to his mother’s declining health, he does many domestic tasks. A combination of his back and the other injuries sustained in the arrest, he struggles with washing dishes, vacuuming, cleaning, raking and mowing lawns. He does these activities less frequently.
Medical and other opinion
Dr James Rowe
74Dr James Rowe is a specialist occupational physician. On 30 October 2000, he examined Mr Martin at the request of an authorised agent. He noted the absence of x-rays but thought they were unnecessary. His findings about the lumbosacral and thoracic spines or lower limbs were largely unremarkable.
75Dr Rowe thought Mr Martin suffered simple mechanical back pain due to the fall and possibly injured his coccyx. He was fit to return to work except for lifting greater than 25 kilograms. He did not think there was any permanent incapacity or impairment.
Ms Karen Mansfield
76Ms Karen Mansfield is a psychologist. On 28 October 2019, she provided a report on behalf of Mr Martin addressed to the “Frankston Magistrates’ Court”. One suspects the report was meant to be used in relation to a criminal proceeding involving Mr Martin. In part, Ms Mansfield speaks about Mr Martin’s character. Nevertheless, the focus of the report is narrow.
77Ms Mansfield first saw him in 2009 on reference from his then general practitioner. He was suffering from severe symptoms of clinical depression, anxiety and stress related to a “police incident”.
78Mr Martin was assaulted in September 2013 and referred back to Ms Mansfield in July 2016. Despite the resumption of treatment, Mr Martin lost his job because of the “severity of his symptoms, his ability to continue normal functioning was significantly impacted and impaired”.
79The rest of the report is largely concerned with the incident in 2018. Nowhere does she mention his back or the psychological effect of his back injury. But I would not make too much of that.
Dr Zhong-Mei Liu
80Dr Zhong-Mei Liu has been Mr Martin’s main general practitioner since 13 March 2012. She practises at the Skye Medical Centre. I have already referred to her certificate to Centrelink. The parties’ court books contain two letters from her to other practitioners. Of course, her entries in the records of the clinic cover many pages. There is no formal report from her.
81Between 2 May 2012 and 15 July 2020, Dr Liu and other practitioners at the practice have prescribed medicines to Mr Martin on 110 occasions. Sometimes, more than one medicine was prescribed for a particular visit. Panadeine Forte has been prescribed on 29 of those occasions.
Mr Roy Carey
82Mr Roy Carey is a consultant orthopaedic spine surgeon. On 3 September 2019, he examined Mr Martin at the request of an authorised agent for an impairment assessment of the lumbosacral spine.
83Mr Martin told Mr Carey of his symptoms:[38]
“… he has continued lumbosacral pain. He indicated this to be radiating from the lumbosacral region to the sacrum, to both sides, radiating to both groins, more on the left. He gets pain in ‘both balls’. This pain extends to the legs, variably the thighs, knees, calves and feet and is present ‘the vast majority of the time’.”
[38] Report at p 2.
84When Mr Carey saw him, he was not receiving treatment. Mr Carey recorded Mr Martin as saying he avoided tablets. What Mr Martin meant to convey was he tried to keep his intake of Panadeine Forte to a minimum but has not stopped taking it. Mr Martin spoke of continuous pain in the lumbosacral spine and radiating into the sacrum, the groin, testicles and legs. With the last, the pain affects his thighs, knees, calves and feet, being present “the vast majority of the time”.
85Mr Carey was unable to diagnose the injury in the absence of further information. All he could say was Mr Martin suffered from ongoing back and lower limb symptoms without radiculopathy. He made an impairment assessment on the basis of dysmetria or a non-uniform loss of the range of motion. Significantly, he considered the injury at work continued to materially contribute to his current situation.
86Nine days later, Mr Carey provided a supplementary report after being given the reports of three sets of CT scans taken in 2005, 2011 and 2015. These reports enabled him to diagnose the injury as an aggravation of pre-existing lumbosacral degenerative change or spondylosis and confirmed his earlier impairment assessment.
87Mr Carey noted from the CT reports the existence of a left L5 pars defect and commented:[39]
“Such a pathology may be caused by an acute high energy injury, but is more usually of longstanding, dating from childhood or adolescence, and likely irrelevant therefore in the consideration of this man’s problems. Unfortunately no appropriate imaging (Nuclear Medicine) was done at the time to make that distinction.”
[39] Report dated 12 September 2019
Medical Panel
88The Medical Panel, comprising a neurosurgeon and rheumatologist, examined Mr Martin on 8 January 2020. It assessed the degree of impairment of his lower back and gave reasons. It noted from the referral “it is accepted that Mr Martin suffered an injury described in the referral as ‘lower back relevant to the claimed Back (sic.) injury … in the course of his employment on 29 August 2000’”.[40]
[40] Reasons for Opinion dated 13 January 2020 at p 2
89Mr Martin told the Medical Panel of constant discomfort in his lower back which was “annoying” but “bearable”. Usually, the level of pain was 4 out of 10. It increased by sitting, particularly in a car seat and lying on certain mattresses, by repetitive movements of bending, standing, sitting and lifting. He spoke of intermittent tingling in his left abdominal region, a pinching sensation in the buttocks, a sensation in his left knee and occasional numbness in his left leg. His back and leg pain disturbed his sleep.
90He told the Medical Panel he had no problem with his lower back before the fall in 2000 but since then he had suffered persistent low back pain and variable pain in both legs. Of the assault in June 2018, he said that it had no noticeable effect on his lower back symptoms.
91He told the Panel he was not receiving medical treatment for his lower back but, when working he took 8 to 10 Panadeine Forte tablets daily and, since stopping work, none to 4 tablets a day depending on his levels of physical activity.
92Apart from tenderness to the mid lumbar region and to the right of the midline at that level, there was nothing unusual about his lower back. The Panel found Mr Martin’s active movements of the lumbosacral spine were unrestricted apart from extension, which was mildly restricted. Examination of the lower limbs revealed little of relevance.
93The Panel read the reports of the imaging done in 2005, 2011 and 2015. It did not consider further imaging was required. It concluded Mr Martin was suffering from chronic low back and bilateral leg pain in a setting of lumbar spondylosis, relevant to the claimed physical injury. Using the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th edition), the Panel arrived at whole person impairment of 5 per cent and agreed with Mr Carey’s assessment of the level of impairment.
94Understandably, since the claim had been accepted, the Panel took a brief history of Mr Martin’s employment since leaving the employ of the employer. Although it did not possess the report of Dr Aggarwal, it did have the clinical records of three clinics including Dr Aggarwal’s clinic.
95Both the Medical Panel and Mr Carey reached the same assessment of impairment. For the lumbosacral spine, they chose Category II or “minor impairment”. There are eight categories with category I as the lowest. Category VIII has a whole person impairment of 75 per cent where the person has complete or nearly complete paraplegia. Category II exists where the clinical history and examination findings are compatible with a specific injury. There are no objective signs of radiculopathy or loss of structural integrity.[41]
[41] See p 3/102 of DSM-5
Mr Paul D’Urso
96Mr Paul D’Urso is a consultant neurosurgeon. On 25 June 2020, he examined Mr Martin at the request of his solicitors.[42] He told Mr D’Urso of symptoms since the fall in August 2000. Mr D’Urso took a limited history of Mr Martin’s work after leaving the employer.
[42] Report dated 29 June 2020
97Mr Martin told Mr D’Urso of lower back symptoms ever since the fall. Daily, the pain can reach 10 out of 10. It radiates into his legs with the left worse than the right. He spoke of a paraesthetic sensation around his epigastrium and buttocks and of pain radiating into groins. The pain prevents sitting for more than 20 minutes or walking more than an hour. The pain affects his sleep.
98By the way Mr D’Urso wrote his report, he read the reports of CT scans taken in September 2005 and November 2011 but actually viewed the CT scans taken in August 2015. I quoted earlier from the report of the 2015 scans. Mr D’Urso’s findings differed from those of the radiologist for he saw:
“… revealed a left L5 pars interarticularis fracture with some mild dysraphism in the lumbo-sacral junction and right sided foraminal stenosis with likely L5 nerve root compression. There was a central disc prolapse at L4-5.”
99He considered the fall aggravated the dysraphic anomaly at the lumbosacral junction. The pars defect may have existed before the fall or it may have been caused by it. If it existed before, then the fall aggravated the defect.
100Mr D’Urso returned to the issue of causality at the end of his report:
“The injury could well have aggravated an underlying anomaly at the lumbosacral junction or possibly contributed to the development of a pars fracture on the left at the L5 level.”
101As to the future, Mr D’Urso said:
“Andrew’s condition, on the balance of probabilities, is likely to deteriorate rather than improve. He does have an abnormality at the lumbosacral junction which can predispose him to degenerative progression with some mechanical instability.”
102As to treatment, Mr D’Urso thought surgery was an option involving a minimally intrusive interbody and posterolateral fusion if the symptoms persisted or worsened.
103His capacity for work is limited by restrictions. He cannot perform repetitive bending, twisting or lifting. He should not lift from below the knee or above the shoulder. He should not lift more than ten kilograms. He should not work in confined spaces. He should be able to walk freely in his workplace. He should not sit, stand or walk for more than 45 minutes. These restrictions would continue into the foreseeable future.
104Overall, Mr Martin’s condition had a mild to moderate effect on his social, domestic and recreational activities.
105Finally, Mr D’Urso recommended MRI scans of his lumbar spine to assess Mr Martin’s current status. Although such scans were performed on 11 November 2020, Mr D’Urso was apparently not asked to comment upon them or the radiologist’s report.
Associate Professor Max Esser
106Associate Professor Max Esser is an orthopaedic surgeon. On 13 August 2020, he examined Mr Martin at the request of an authorised agent.
107Mr Martin told Associate Professor Esser of pain in his lower lumbar spine radiating on the left and right to an area of the iliac crest. The pain radiates into his lower limbs, especially the left. He spoke of the tingling sensation and the effect on his sleep. There was a worsening of the symptoms if he stood, sat and walked too long. He found sex uncomfortable.
108Associate Professor Esser found significant restrictions in certain movements of the lumbar spine. He had full flexion and extension but left and right lateral flexion and left and right rotation were limited to about half their normal range.
109He saw the underlying issue as spondylolisthesis of L5-S1. This condition existed before the fall. This condition was the sole cause of his symptoms for he did not think Mr Martin had a pain disorder, chronic pain, non-organic, functional overlay signs or psychologically based symptoms or exaggeration. The condition may also have possibly exacerbated disc pathology.
110As to the causal link between the fall and his current condition, Associate Professor Esser said:[43]
“I think this man’s physical condition is of spondylolisthesis. I think the episode of 2007 (sic. 2000) had exacerbated his back pain at that stage. I think it is unlikely to be still materially contributing to his current situation. I think this man has a chronic condition that was exacerbated by the episode, but not necessarily caused by the episode that occurred on 29.08.2000.”
[43] At p 9
111He expected Mr Martin to suffer from intermittent pain and discomfort due to the underlying spondylolisthesis and his prognosis was only fair. He raised the possibility of a fusion if the symptoms could not be managed by non-operative techniques.
112As to his incapacity for work, Mr Martin could not return to any pre-injury duties involving bending, lifting, twisting or carrying heavy objects. He could return to suitable employment on a full time basis but could not perform any manual work, carry heavy objects, bend or twist.
Dr Robyn Horsley
113Dr Robyn Horsley is an occupational physician. On 1 October 2020, she examined Mr Martin at the request of his solicitors. As is her habit, she took a detailed history and descriptions of his various jobs after leaving school. It is more detailed than that revealed in his affidavits or oral evidence.
114Mr Martin complained of stiffness in his lumbar spine on most days. the stiffness is not continuous but can vary in length from a few minutes, several hours and up to three days.
115There was a “pinching sensation” in the groins, radiating into his penis and scrotum and into the medial aspects of his thighs. This sensation comes and goes all day. It lasts from a split second, to minutes and up to several hours. The “pinching sensation” is painful, ranging from 2 to 3 out of 10 up to 10 out of 10. He suffers from regular diarrhoea, erectile dysfunction and reduction in libido.
116Sometimes, he has discomfort in his left calf and intermittent numbness in his left fifth toe.
117Dr Horsley accepted the complaints of intermittent and ongoing “mechanical” back pain. She accepted there was mechanical pain in 2000 which, by implication, was still present in December 2000. To her, the cause was unknown and needed further exploration, starting with up to date radiology. This might reveal some type of disc disruption. Based on the 2015 radiology, she eliminated the pars defect as a cause of the pain. She considered it asymptomatic based on the 2015 radiology and, specifically, the absence of spondylolisthesis. She considered the pars defect congenital and not caused by the incident.
118Dr Horsley concluded:[44]
“It is difficult to relate his current presentation to the incident back on 29th August 2000, although it is clear that Mr Martin did develop an episode of mechanical back pain. He does have an underlying pars interarticularis defect which is unlikely to be symptomatic. He does experience some intermittent back pain.”
[44] PCB 62
119She placed restrictions on what he could do but did not link his restrictions to the 2000 fall: avoidance of repetitive over reaching; avoidance of repetitive pushing and pulling; avoidance of lifting items greater than 15 to 20 kilograms except occasionally; avoidance of lifting items up to 15 kilograms on a repetitive basis; and avoidance of prolonged static forward flexion of the lumbar spine.
120To her, Mr Martin was deconditioned which reduced his functional tolerances. She recommended a gym-based programme to improve his functional tolerances and Pilates-based programme to improve his core strength.
121Finally, Dr Horsley considered Mr Martin capable of work.
122She sought further information from the solicitors. It does not appear to have been provided for there is no further report from her.
Legal considerations
Serious injury
123For the purposes of this application, “serious injury” means “permanent serious impairment or loss of a body function”.[45] The word “serious” is explained in two paragraphs of s134AB(38). First, relevantly, it is satisfied by reference to the consequences to Mr Martin of any impairment or loss of a body function with respect to pain and suffering or loss of earning capacity when judged by comparison with other cases in the range of possible impairment or loss of body function. Second, an impairment or loss of a body function is not serious unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function fairly described as being more than significant or marked, and being at least very considerable.
[45] Section 134AB(37)
124To establish the loss of earning capacity consequence, Mr Martin must establish:
(a) his loss of earning capacity consequence, when judged by comparison with other cases in the range of possible impairments or losses of a body function, is fairly described as being more than significant or marked and at least very considerable (the narrative test); and
(b) he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s134AB(38); and
(c) he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.[46]
[46] De Bono v Victorian WorkCover Authority [2019] VSCA 85 at paragraph [47]
Admission
125Mr Martin submitted the defendant’s acceptance of liability of his claim for impairment benefits was an admission his current presentation was solely caused by the 2000 incident. This submission goes further than the admission in Ansett Australia Ltd v Taylor.[47] In that case, the admission was evidence of a compensable injury, affecting a particular of Mr Taylor’s body, suffered on or after 20 October 1999. In that context and this, a compensable injury means Mr Martin suffered an injury to his lower back arising out of or in the course of his employment with the employer. Since there was only the incident of 29 August 2000, then it is that event which caused the injury.
[47][2006] VSCA 171
126The range of the admission in Ansett Australia Ltd v Taylor[48] reflects what was in issue in that case. Mr Martin’s submission is this injury is the sole cause of his presentation, at least, in January 2020 when the defendant accepted liability. Since an impairment for the purposes of s98C must be permanent, the defendant’s acceptance of liability implies an acceptance of the permanency of the impairment. If the defendant denied permanency of the impairment then the process would not have moved to the assessment of the degree of impairment. What is the effect of the acceptance of liability? The starting point is Ansett Australia Ltd v Taylor where Ashley JA said:[49]
“But in cases where liability in relation to such a claim is accepted, I consider that the acceptance should stand only as an admission by the Authority or self-insurer speaking for the employer, that such an injury had been sustained. Having regard, however, to the very serious consequences for the Authority or self-insurer flowing from acceptance of the claim – not only in respect of compensation payable under s 98C or s 98E, but also, potentially, with respect to s 134AB(3) and (15) – I consider that such an admission should ordinarily be regarded as very significant, albeit not conclusive, because a defendant, in a particular case, might be able satisfactorily explain its conduct.”
[48]Ibid
[49] (Ibid) at paragraph [40]
127In Sednaoui v Amac Corrosion Protection Pty Ltd,[50] the Court referred to a line of authority in rejecting a submission that those words of Ashley JA could be distilled into two propositions of law, saying they were observations, not statements of legal principle. However, the Court added:
“The observation in Ansett v Taylor that an admission of the type here under discussion ‘should ordinarily be regarded as very significant’ is, with respect, undoubtedly true.”
[50] [2017] VSCA 66 at paragraphs [66] and [67]
128Since Ansett Australia Ltd v Taylor was decided, the Act has been amended.
129Section 64 of the Transport Accident and Accident Compensation Legislation Amendment Act 2010 inserted s134AB(4A) into the Act. The Explanatory Memorandum explained the purpose of the proposed sub-section:[51]
“amends section 134AB to confirm that a worker must not concurrently make or have a claim for compensation under section 98C and a serious injury application under section134AB(4) at the same time. A worker who has made a claim for compensation under section 98C may only make a serious injury application under section 134AB(4) at such time as the worker’s section 98C claim has been finalised. This is in accordance with the way in which the provision has previously been implemented.”
[51] Clause 67
130Since ss(3) and (4) are subject to ss(4A), I will quote ss(4A) in full:
“If a worker has made a claim for compensation under section 98C in respect of an injury, the worker must not make an application under subsection (4) in respect of the injury unless –
(a) the degree of impairment resulting from the injury has been determined in accordance in accordance with section 104B; and
(b) the worker has accepted the determination of the degree of impairment; and
(c) the worker has accepted the entitlement to compensation.”
131Ashley JA in Ansett Australia Ltd v Taylor[52] analysed the interrelationship between s98C, s104B and s134AB. The insertion of s134AB(4A) does not require further analysis. It simply emphasises the position and importance of a claim under s98C in relations to s134AB.
[52]Supra
132The observations of Ashley JA have been considered in subsequent judgments of the Court of Appeal. In one case, after referring to Ansett Australia Ltd v Taylor, Tate JA cautioned:[53]
“… those circumstances [in Ansett v Taylor] are far removed from the proposition that a payment by TAC for various procedures is to be treated as evidence of an admission on the subject of causation. The issue of causation may well be a complex one and, as here, may be one on which medical opinions conflict. It may also be an issue in relation to which, as here, relevant information is not available until surgery or other forms of medical procedure are performed. For the TAC to accept to pay for the cost of a procedure cannot have the effect of precluding them from later contesting the issue of causation, perhaps on the basis of information obtained from the very procedure that is paid for. Nor, for similar reasons, ought such payment be treated as having the evidentiary value of an admission because the question of causation may well be a live one until all the procedures have been completed. It would be contrary to the efficient administration of the compensation scheme as a whole if the TAC resisted paying for medical procedures that might reduce the pain and suffering of someone injured in a transport accident on the basis that if it did so it would be regarded, at law, as having made an admission.”
[53] Transport Accident Commission v Florrimell [2013] VSCA 247 at paragraph [45]
133Apart from the question of admission, the defendant relied upon AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[54] In that case, Mr Filipowicz injured his right shoulder while employed by Arnold. Later, while employed by AG Staff, he re-injured the same shoulder. The trial judge only considered the ultimate condition of the shoulder, holding the principles in Petkovski v Galletti[55] did not apply. He posed the question whether each injury materially contributed to the ultimate consequences and then accumulated the effects of both injuries to determine whether there was a serious injury. The Court disagreed.
[54] (2012) 34 VR 309
[55][1994] 1 VR 436
134It held that the principles in Petkovski applied to the Accident Compensation Act 1985 such that an aggravating injury must itself qualify as a serious injury. It denied the ability to accumulate the effects of the injuries.
135Absent the admission, Filipowicz points to the difficulty of isolating the effects of Mr Martin’s employments upon his lower back. To make the point, the defendant quoted from Lexa v Transport Accident Commission:[56]
“… it was clearly open to the judge on the medical evidence to be unpersuaded that the applicant suffered at the time of the hearing, from a severe psychological disturbance or disorder that resulted from an accident that occurred many years previously and in circumstances where a number of unrelated events capable of causing psychological harm had occurred in the intervening years.”
[56] [2019] VSCA 123 at paragraph [51]
136In Haden Engineering Pty Ltd v McKinnon,[57] Maxwell P dealt with the various factors involved in evaluating the pain and suffering consequence. Broadly, there are two components: the experience of pain; and its disabling effect. Within the first component, the court will assess the intensity of the pain and if the pain is not constant, it will need to assess the frequency and duration of pain episodes. As to the second component, the court must identify the effect of pain upon physical functioning and enjoyment of life. This involves the extent to which the pain interferes with the ordinary activities of life. If relevant, it also involves the extent to which pain prevents the person from performing the duties of his previous employment or employments.
[57] (2010) 31 VR 1 at paragraphs [9] to [17]
Discussion
Credit
137The defendant attacked Mr Martin’s credibility as a witness. There are two aspects to the credibility of a witness: truthfulness; and reliability.
138I consider Mr Martin is a truthful witness. His description of the circumstances of his leaving jobs sounded truthful. What he said was much against his interests. He was not trying to present a favourable picture. One suspects there is more to some of events but from Mr Martin’s perspective, he gave the impression of telling what happened as he saw it, which is all one can ask of a witness.
139As to his reliability, it is my impression that when Mr Martin spoke to the various medico-legal practitioners, he told them of his most recent symptoms. This emerges most clearly in the report of Associate Professor Esser. It explains the variation in his complaints as recorded by those practitioners. However, he can be a confusing historian. It is difficult to know the years he worked for employers and, occasionally, the order in which he worked. He is not good at dates and he knows it.
Admission
140In this case, the degree of impairment was determined in accordance with s104B. Implicitly, Mr Martin has accepted the determination of the degree of impairment for he has not challenged it. Again, implicitly, he has accepted the entitlement to compensation under s98C, which is zero.
141The amendments since 2006 emphasize the significance of the Authority’s acceptances. The 2010 amendments raised a barrier to workers seeking to recover damages after seeking compensation under s98C. The s98C process must be finished before the worker can seek leave to recover damages. It reiterates and enlarges the importance of the concessions made by the Authority.
142It took the defendant about a year to assess Mr Martin’s claim under s98C. Presumably, it possessed Dr Rowe’s report in 2000. It had the opportunity to give careful consideration to the claim: it was not rushed. The defendant did not call evidence to explain why it accepted the claim. It was a deliberate decision based on materials sufficient for its purposes.
143In the circumstances of this case, the defendant’s acceptance of Mr Martin’s claim under s98C is a very significant admission. I am reluctant to call it conclusive. An admission is piece of evidence along with other pieces of evidence. It is given such weight as it deserves in a particular case. Here, it constitutes powerful evidence of three matters: that Mr Martin suffered an injury to his lower back arising out of or in the course of his employment with the employer on 29 August 2000; the injury has caused a permanent impairment to his lower back; and the effect of the admission is that the present impairment is due to the 2000 incident with the subsequent employments having no or no lasting effect of the condition of his back.
Injury
144Another unusual aspect of this proceeding is the various diagnoses. Associate Professor Esser implicates spondylolisthesis as the cause of Mr Martin’s problems despite no support in the report of the 2015 CT scan. Apparently, he relied upon the history and his clinical examination but did not say what elements of each he relied upon. To use an expression often used in this area, there is no “path of reasoning” such that I can evaluate his conclusion.
145Dr Horsley says there is a mechanical injury, which tells me little. Curiously, she acknowledges the presence of spondylolisthesis but says the condition is asymptomatic.
146Mr D’Urso implicates an anomaly at the lumbosacral junction. He describes the anomaly as “dysraphic” and the 2015 CT scan refers to mild dysraphism. Since each refers to a failure to fuse, then something at the junction has failed to fuse. I do not know what.
147Mr Carey speaks of the aggravation of pre-existing lumbosacral degenerative changes. Although not saying so explicitly, the Medial Panel apparently reached the same conclusion.
148Of the five opinions, only those of Mr Carey and the Medical Panel are sufficiently spelled out for me to be confident of the diagnosis. Coupled with the strength of the admission, I am satisfied Mr Martin has suffered an injury, being an aggravation of the pre-existing degenerative changes of his lumbosacral spine, arising out of or in the course of his employment with the employer. The effects of that injury persist to the present and for the foreseeable future.
149This finding excludes the possibility that Mr Martin’s jobs following that of the employer contributed to the present state of his lower back. Accordingly, the principle in Petkovski v Galletti[58] has no application.
[58]Supra
Serious injury
150After all this, does Mr Martin have a serious injury?
Treatment
151Even though his lower back remained painful, Mr Martin believes he did not seek treatment until 2011. In this he is incorrect for CT scans of his lumbosacral spine were performed in 2005[59]. There were further scans in September 2011, August 2015 and November 2020. Nevertheless, he consistently took Panadeine Forte.
[59] Report dated 26 September 2005, PCB 34
152Between them, the parties have exhibited copies of the records of four medical clinics: Carrum Downs; Skye; Seaford Beach; and Marina.
153At least with the Marina Medical Centre, the records are incomplete. Mr Martin exhibited its records between 8 May 2006 and 31 October 2011. I know he was a patient in 2005 for a practitioner at that Centre referred him for CT scanning. Those records note 19 attendances over a little more than five years with none relating to his lower back.
154The Carrum Downs’ records cover the period discontinuously between 11 June 1997 and 21 May 2020. It goes from 11 June 1997 until 4 August 2003. There are other entries in 2007, 2012, 2018 and 2020 but these are of no consequence.
155There are ten entries between 29 August 2000 and 10 February 2001. Each mentions the back. Those up to 13 October 2000 detail the progress of the condition of his back. The entry on 13 October 2000 reads in part:
“back better, less pain, sl[ightly?] tender mid thoracic and lower lumbar areas still
ROM [range of movement] good
pl [patient?] normal duties 16/10
still sore but hasn’t done exercises, do these …”.
156For the Skye Medical Centre, the records are comprehensive. They set out prescriptions, the results of investigations and attendances. The attendances start on 13 March 2012 and finish on 15 July 2020. Throughout that period, he has mainly seen Dr Liu. Of the 127 attendances upon practitioners, 18 concerned his lower back. Between 7 March 2018 and 15 July 2020, there are two attendances regarding his back, one on 7 March 2018 and the other on 15 July 2020. There is none between those dates. On 7 March 2018, CT scans were organised. On 15 July 2020, the practitioner reviewed the medicines he was taking, noting he had been taking Panadeine Forte for more than 12 months.
157Mr Martin attended Seaford Beach Family Clinic between 20 March 2007 and 1 August 2011 for treatment on 15 occasions. Only on 13 October 2010 is there mention of the back. After prescribing Panadeine Forte, the practitioner noted:[60]
“Recurrent back pain after an old injury, he was advised to see the local doctor who looked after him at the time as no Valium or P Forte will be prescribed on regular basis from here.”
[60] PCB 161
158Also among the exhibited documents are notes for four attendances in August and September 2015 on practitioners at the Back in Motion Health Group. On the first attendance, the practitioner took a brief history, which reads, in part:[61]
“Has a chronic back injury since 1999 following fall at work. Approximately four weeks ago had constant throbbing pain down the left leg. Can still feel pain in knee and groin now on the left side.”
[61] Note dated 25 August 2015
159Mr Martin is now 40. He has suffered pain in his lower back ever since the fall. The pain is constant. Mostly, it is bearable. But it increases to unbearable levels with certain repeated activities. I would have thought what Mr Martin considered a bearable level of pain was unbearable but that is the nature of the person. He puts up with his pain. Within the limitation I discussed as to his reliability, he gave a consistent history of pain and the painful areas of his body. The level of his pain increased if he sat, stood, bent, lifted or walked for extended periods of time. Unfortunately, these are commonplace activities. His experience of pain will continue into the foreseeable future.
160It is true his history of medical treatment for his back has been sporadic. It is also true he has taken Panadeine Forte for many years to relief the pain. It is the experience of pain which is decisive in this case.
161Mr Martin has experienced lower back pain for more than twenty years. Even now he is relatively young. He has persisted with various jobs despite the pain. There is no end in sight for the relief of his pain. Broadly, the medico-legal practitioners are consistent about the restrictions he should follow in future employment. They are limiting physically. Applying the required tests, I consider Mr Martin has suffered a “serious injury” due to the pain and suffering consequence.
Loss of earning capacity consequence
162Mr Martin was dismissed from American Vehicle Sales. Despite the contents of the letters of warning, he is convinced the employer’s reason was the amount of time he would take off in the future due to court appearances over the 2018 incident:[62]
“And - - ? – The problem there they asked me, they said, ‘Are you going fight this, are you?’, I said, ‘I’m fighting it all the way’, they said, ‘This is going to go on for years, isn’t it?’, and I said, ‘I don’t know, probably’, and then, you know, every couple of months I need a day off for court or medical thing, wasn’t getting paid for those days off, but their attitude was just they wanted to get rid of me because I was going to need too much time off.”
[62] T70
163According to Mr Martin, and despite the warning, his dismissal had nothing to do with his performance at work or the effect of his back injury. I accept that view.
164Examining his earlier employment history:
(a) with the employer, his injury led to a change of job, from truck jockey to factory hand, and then dismissal because the former was no longer available and, implicitly, neither was the latter because the employer’s business had slowed down;
(b) at Phoenix Balustrades, there was the discovery of his earlier relationship with the wife of a fellow employer and the embarrassment this caused;
(c) at Bluestone Personnel, Mr Martin stopped working over a failure to pay him what he was owed;
(d) at Kingsway Confectionary, he resigned or was dismissed after being accused of not working fast enough;
(e) at Stairform, he was dismissed because the business replaced existing employees with Indian and Sri Lankan employees. This dismissal was found to be unfair and Mr Martin received some compensation;
(f) at Playspace Playgrounds, he was dismissed over friction with a fellow employee. Again, this dismissal was unfair and he was awarded compensation;
(g) at 3D Windows, he was dismissed after a heated exchange with one of the owners of the business. This dismissal was not unfair; and
(h) at American Vehicle Sales, he was dismissed over his potential absences from due to court appearances and medical appointments arising out of the 2018 incident involving the police.
165At least from Mr Martin’s perspective, the loss of most of these jobs was not due to his injuries. The injury caused a change of job at the employer but he was dismissed because the substitute job was no longer available. At the end, he would have continued with American Vehicle Sales if he had not been dismissed.
166Mr Martin was educated to Year 11 standard. This is a significant level of secondary education. He is an intelligent person. He is also determined. He decided on the need for a qualification, studied and obtained a Certificate 11 in Automotive Body Finishing. Admittedly, his former jobs have been physical but he has the capacity to learn and re-invent himself. To submit he is totally incapacitated for work, or something close to that state, disregards his relative youthfulness, intelligence and determination.
167It is a pity no one was asked to comment on the findings of the 2020 MRI scans.
168Each of Dr Horsley, Mr D’Urso and Associate Professor Esser placed restrictions on what Mr Martin could perform given the state of his lower back. Neither Mr Carey nor the Medical Panel spoke of employment restrictions because of the nature of their function.
169The restrictions recommended by those practitioners do not exclude fulltime employment, just the nature of that employment. One must remember Mr Martin left American Vehicles Sales because his employer would not countenance the possibility of extensive absences from work due to litigation. Absent that litigation, he may well have continued in that employment despite the pain and restrictions.
170Unfortunately, no practitioner was asked to comment on the radiologist’s report on the recent MRI scans, let alone on the scans themselves. Although the findings seem more serious than those in the earlier CT scans, it is not open to me to infer, from a radiological perspective, the state of his lower back is serious. This is a matter for expert opinion, which I do not have. Dahl v Grice[63] cannot be tortured to yield such an inference.
[63] [1981] VR 513
171The medical certificate of Dr Liu, addressed to Centrelink, does not mention Mr Martin’s lower back at all. Seeking a financial benefit due to physical and psychological impairments and failing to include the lower back is a telling factor against finding the incapacitating effects of the lower back from an employment perspective. There is no need to rely upon Jones v Dunkel[64] as the inference from the certificate is the lower back contributes little on Mr Martin’s claimed incapacity for work.
[64] (1959) 101 CLR 298
172On the evidence, I am not satisfied Mr Martin has a serious injury insofar as the loss of earning capacity consequence is concerned.
Conclusion
173I will grant leave to Mr Martin to commence a proceeding for the recovery of damages for pain and suffering consequence.
174I will hear the parties on the form of order and the question of costs.
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