Massara v Form 700 Pty Ltd
[2023] VCC 1088
•10 July 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-05415
CI-21-02587
| JORDAN JOHN MASSARA | Plaintiff |
| v | |
| FORM 700 PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 June 2023 | |
DATE OF JUDGMENT: | 10 July 2023 | |
CASE MAY BE CITED AS: | Massara v Form 700 Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1088 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – pain and suffering – aggravation injury of underlying degenerative change
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Dordev v Cowan [2006] VSCA 254
Judgment: Serious injury application dismissed. Declaration that plaintiff entitled to recover cost of reasonable pain management course.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Mr Z Partos | Carbone Lawyers |
| For the Defendant | Ms S Manova with Ms K M Manning | Hall & Willcox |
HIS HONOUR:
1In this proceeding, the plaintiff seeks leave pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring a proceeding for the recovery of damages for the pain and suffering consequences of injury sustained in the course of his employment with the defendant on 17 April 2018. The plaintiff relied only upon paragraph (a) of the definition of “serious injury”, being impairment to the lumbar spine. The plaintiff also seeks a declaration in alternative proceedings for the recovery of the reasonable cost of a pain management course.
2On 17 April 2018, the plaintiff was working for the defendant and while completing stripping of form work, he was passing 5 to 6-metre timber beams weighing 40 kilograms to a scaffolder at a height above him. In so doing, he felt a pop in his back and pain.
3Thereafter, he attended his general practitioner, Dr Cesar Tan, on 18 April 2018, complaining of lower back pain with it radiating to the left hip, and gave a history that he was doing heavy lifting constantly of items weighing 40 kilograms at least. He was provisionally diagnosed with a discogenic back injury and query sciatica. The treatment prescribed at the time was rest, exercise and anti-inflammatory Brufen and Tramal.[1]
[1]Defendant’s Amended Court Book (“DCB”) pages 97-98
4Later, on 20 April 2018, he attended his general practitioner, Dr Tan, complaining of suffering lower back pain on 9 April while at work. He heard a click. The pain went away but came back the next day. He gave a history that he thought it was muscular pain, but the pain became severe and intolerable At this point he was prescribed Endone.[2]
[2]DCB 98
5On 22 May 2018, a CT scan of the lumbar spine demonstrated a:
“… subtle right posterolateral disc protrusion at L4/5 abutting the exiting right L4 nerve root at the foraminal exit.”[3]
[3]Plaintiff’s Amended Court Book (“PCB”) pages 51, 73, 82, 91, 108, 153 and 170
6Thereafter, the plaintiff attended his general practitioner, Dr Tan, on a regular basis and procured prescriptions, including Panadeine Forte, Endone, Tramal, OxyContin, OxyNorm, Lexapro, Baclofen, Keflex, Norspan patches, Lyrica and Palexia.
7The matter came on for hearing before me first on 7 March 2023. At that stage, the plaintiff had sworn affidavits dated 9 July 2020 and 20 December 2022. In the first affidavit, the plaintiff swore to the circumstances of the injury on 17 April 2018 and under the heading “Past Health”, made no reference to any pre-existing back pain. In his second affidavit, the plaintiff deposed to commencing work as a lift driver on a building site in or about October 2022.[4] In this affidavit, the plaintiff swore:
“… I no longer take Endone, Lyrica, Oxynorm, Oxycodone, or Valium due to my opioid addiction. I occasionally take Panadeine Forte when the pain is very bad, however I try to limit this as much as possible. l also take Seroquel.”[5]
[4]PCB 21 at paragraph [7]
[5]PCB 17 at paragraph [8]
8Also, the plaintiff swore:
“Since deposing in my previous affidavit, l would like to add that before my work injuries, I was able to play with my two nieces. They are now 2 and 4 and l find that l still struggle spending time with them. I can pick them up, but put them down straight away because l can feel a sharp pain in my back.”[6]
[6]PCB 18 at paragraph [12]
9On 7 March 2023, when the matter first came on before me, Senior Counsel for the plaintiff sought an adjournment because it had come to his attention that there had been a series of attendances which began on 30 November 2012, and continue – over about approximately eight or nine occasions – before the subject date of injury, which is in 17 April 2018, complaining of pain in the lumbar spine.
10Dr Tan, for example, on 11 November 2014, said:
“LOWER BACK PAIN FOR 4YEARS
…
… ACUPUNCTURE, INJECTION OF STEROID … .”[7]
[7]DCB 90
11Counsel stated that this was just picking up one example from a number. Numerous doctors who are reported in the Plaintiff’s Court Book, are reporting the basis of no relevant past history.
12Accordingly, the matter was adjourned until 13 June 2023. In the meantime, the plaintiff swore a third affidavit, dated 14 May 2023. Therein, the plaintiff referred to pre-injury hobbies, such as motorcycle riding, driving motor vehicles and socialising with friends, but made no reference to pre-existing pain in the lumbar spine.
13In the meantime, a further report was obtained from the treating general practitioner, Dr Tan, dated 17 April 2023, two reports from occupational physician, Dr James Chan, dated 18 April 2023 and 12 May 2023, a report from orthopaedic surgeon, Dr Raf Asaid, dated 19 April 2023 and a report from industrial physician, Dr David Kennedy, dated 21 April 2023.
14In his report, Dr Tan stated that the plaintiff continued to suffer ongoing pain and restricted movement as a result of the work injury suffered on 17 April 2018.
“The severity of the symptoms vary from time to time depending on what activities he is doing on that particular day.”[8]
[8]PCB 67
15Dr Tan noted that the plaintiff was currently working on a full-time basis with Top Up Labour as an elevator attendant, but remained unfit to perform his pre-injury duties. The present job was for some eight to ten hours per day, but did not involve heavy lifting or repetitive movements of the lower back. He also considered that a request for pain management treatment for the work-related lower back injury was reasonable in all the circumstances. There was no attempt to compare the plaintiff’s impairment pre and post the subject injury.
16In his report dated 18 April 2023, Dr Chan, occupational physician, referred to two previous reports of his dated 16 June 2020 and 3 August 2021. He also referred to the two affidavits of the plaintiff sworn 9 July 2020 and 20 December 2022, together with radiological reports dated 26 July 2014, 18 April 2018, 22 May 2018, 23 May 2019, 6 December 2019, 7 February 2021 and 20 September 2021. In his earliest report, Dr Chan, under the heading “Past Medical History”, recorded:
“• No past medical problems or surgery
• …
• Nil other past medical issues.”[9]
[9]PCB 181
17In his second report, dated 3 August 2021, Dr Chan referred to the same radiological investigations and to a “past medical history”, virtually identical to the first report. On this second occasion, Dr Chan reported:
“At present, [the plaintiff] taking into account his incapacity, age, education, place of residence, skill and work experience is not capable of suitable employment. He has been suicidal, has not worked since February 2021 in any capacity and has elevated pain levels and significantly affected psychological state currently being assessed and stabilised by treating pain specialist and psychiatrist.”[10]
[10]PCB 85
18After the adjournment referred to above, Dr Chan reported first on 18 April 2023. Once again, he referred to the two affidavits sworn by the plaintiff, together with the same radiology referred to before. On this occasion, he was also provided with clinical records and extracts from Dr Tan between 30 November 2012 until 19 June 2017. He was also provided with chiropractic clinical records from 8 November 2014 to 10 December 2015 and physiotherapist records from 6 April 2018 and 6 April 2020. On this occasion, under the heading “Past Medical History”, Dr Chan added:
“• Lower back pains from 2012 to 2017 – as per history provided later in the report.
• Opioid dependency – 2018-2022.”[11]
[11]PCB 148
19On this occasion, the plaintiff provided a history of opioid addiction in 2021 and 2022, culminating in attending the Outpatient Drug Rehabilitation Clinic at Western Hospital, where his medication was changed from Endep to Seroquel. Further, it was reported:
“… He now reported taking only 2 panadeine forte about once every 2 weeks when the pain is really bad and does not settle with non-medication strategies and rest … .”[12]
[12]PCB 151
20After returning from Thailand in May 2022:
“… even though he was in pain, he took up a job for about 2 to 3 months doing pressure washing but this made his back pain worse. He then found another job through a friend in September 2022 on a building site being the lift operator/driver. In between taking people up/down in the lift, he was able to sit/stand as needed, take breaks to do stretches when no one was riding in the lift and occasionally walk around as needed and found that he could cope with this job full-time with ongoing back pain but at much better levels than previously … .”[13]
[13]PCB 151
21With respect to the additional history about lower back pain between 2012 and 2017, Dr Chan reported:
“… [The plaintiff’s] recollection of his lower back pain was poor for this period. … [The plaintiff] reported that he commenced his carpentry apprenticeship after he left school in 2011. He reported that as an apprentice he was given all the heavy lifting tasks and he was required to get the materials and equipment/tools for the master carpenter. He recalled experiencing episodes of lower back pain when doing more or heavier lifting, but he could not recall specific events that lead to him seeing his GP with lower back complaints and does recall seeing the chiropractor about his lower back pain in 2014 but once again could not recall a specific initiating event only stating that he was doing a lot of heavy lifting in relation to his carpentry apprenticeship. He did recall that at various times between 2012 to 2017 he was recommended to have a steroid injection which he was not keen on and never proceeded with that recommendation. He also stated that the pain during this period was less severe, not constant and settling completely over time with medications, treatment and rest whereas after the 2018 injury, … [the plaintiff] reported being in constant, more severe pain and having pain radiate down his left leg down to his foot which it had not done so prior to the 2018 injury.”[14]
[14]PCB 152
22On clinical examination, there was limitation of straight leg raising on both sides, together with decreased lateral flexion and rotation. He also noted “nonspecific discomfort to deep palpation left lower lumbar area”.[15] There was also said to be “normal tone, power and reflexes bilaterally”.[16]
[15]PCB 153
[16]PCB 153
23After reviewing all of the relevant investigations, Dr Chan noted the most recent MRI scan of 20 September 2021 recorded:
“1. Mild broadbased disc bulges L3/4 and L4/5
2. Mild bilateral neural foraminal narrowing at L4/5, contacting bilateral L4 nerve roots.”[17]
[17]PCB 154
24As to his diagnosis of the injuries suffered as a result of the work injuries sustained on 17 April 2018, Dr Chan stated:
“• Disc bulge/protrusion at L4/5 more on the right than left confirmed radiologically in 2018 and 2019 and not present on a scan in 2014 which was prior to his injury in 2018.
•Possible annular tear at L4/5 as per opinion of neurosurgeon Mr Nicholas Maartens in his report dated 20th February 2020.
• [The plaintiff] has suffered an aggravation of underlying degenerative changes to his lumbar spine becoming more symptomatic where previously was less symptomatic or often asymptomatic prior to the 17 April 2018.
• Development of secondary chronic pain in the lower back and down the left leg.”[18]
[18]PCB 154
25As to medications, Dr Chan stated:
“Currently, … [the plaintiff] is only on Seroquel and very occasional panadeine forte.”[19]
[19]PCB 154
26As to the requirement for medications in the future, he stated:
“… [The plaintiff] is likely to require ongoing medications for his mental state which at present is Seroquel. He may need to see psychiatrists in the future for ongoing review of his mental state and advice on medications. [The plaintiff] continues to have ongoing issues with chronic pain and may end up seeing a pain specialist or attending a multidisciplinary pain management clinic in the future to provide education on how to better manage his pain without medications.”[20]
[20]PCB 155
27Further, Dr Chan stated:
“The Seroquel [he currently takes] can have a sedating effect but is taken in the evening and does not affect his ability to work during the day. He only takes 2 panadeine forte about once a fortnight usually in the evenings. Therefore, medications have a minimal to little impact on his ability to work.”[21]
[21]PCB 155
28As to the effect on the quality of his life generally, Dr Chan stated:
“… [The plaintiff] stated that his hobbies prior to injury were motorbike riding, jet skiing, working/tinkering on cars, playing with his nieces and going out to socialize with his friends. Now only goes out occasionally with friends to ‘get him out of the house’ and tries to play with his niece but often must cease what he is doing with them due to flare-ups in the pain levels. He reported trying to return to working on his car since his last review but found it flared up his pain too much and does not really do so now. … [The plaintiff] reported that he is much less social now than pre-injury.”[22]
[22]PCB 155-6
29Dr Chan reported on 12 May 2023, pursuant to a request “to provide an urgent supplementary report”.[23] There was apparently no further consultation after 18 April 2023 and the medication was confirmed as Panadeine Forte, two tablets every one to two weeks and Seroquel, one tablet nightly. Dr Chan noted:
“The above medication dosage and frequency was stated on direct questioning on the 18th April 2023.
Subsequently as per your email instruction dated 11 May 2023:
Our client instructs that he takes Panade[i]ne forte every second or third day and take 4 at a time because it is otherwise just not strong enough and does not want to resort to opioids again.
He instructs that he gets a box of 20 every week to every second week.”[24]
[23]PCB 181
[24]PCB 182
30Dr Chan further reported:
“As per your email instruction dated 11 May 2023, I was informed that … [the plaintiff] was not working as a concrete machine finishing driver.”[25]
[25]PCB 182
31The email was not produced in evidence and since the plaintiff gave viva voce evidence before me that he had commenced working as a concrete machine finishing driver on 1 May 2023, I consider that there was probably a misprint of “not” being substituted for “now”. In any event, at page 4 of his report, he was asked:
“What risk does working in the field he is in now (concrete machine finishing machine driver) pose to his spine in the longer term and ‘what risk is it posing for him in the longer term taking Panade[i]ne forte to remain at work?”[26]
(sic)
[26]PCB 184
32The answer was as follows:
“A concrete finishing machine is normally a moderately heavy manually operated machine which is manually pushed over the slab of concrete. It has machine vibration with constant pressure needing to be applied to the handle which typically needs to be lifted up/down to steer it left or right and steadied by applying pressure on the handle to stop sudden movements side to side as the machine moves over the concrete surface. It is typically a demanding physical job.
With job positions such as driving a concrete finishing machine, … [the plaintiff] is likely to suffer further exacerbations in the longer term to his spine with potential worsening of the pain he experiences in his back.
With regards to panadeine forte, taking it at above recommended doses can pose an increased risk of both gastric irritation and risk of liver dysfunction depending on how often this occurs. Taken at higher than recommended doses, noting that it contains codeine, it can also potentially have cognitive effects and operating machinery or driving whilst taking large doses of such medication and is not recommended. This can potentially result in higher risk of adverse events occurring whilst operating machinery or driving.”[27]
[27]PCB 184
33Instructing solicitors also had the plaintiff assessed by orthopaedic surgeon, Mr Raf Asaid, on 19 April 2023. On this occasion, Mr Asaid obtained a history as follows:
“In 2017, … [the plaintiff] joined Form 700 as a formwork labourer in a full-time capacity. He worked 56 hours per week over six days per week, performing predominantly manual labour type roles and physically demanding tasks. His primary responsibilities included stripping scaffolding, timber, and boards from building sites, which involved repetitive heavy lifting, bending, and twisting.
He reports sustaining an injury to his lower back on 17 April 2018. While bending over to pick up a heavy timber beam, he experienced what he described as a popping sensation in his lower back, followed by the sudden onset of intense pain that radiated down both legs. After sustaining the injury, he informed his supervisor, and later that day, he consulted his General Practitioner who provided him with analgesic medication. He also commenced physiotherapy treatment. During this period, he relied heavily on opioid analgesia, which unfortunately led to an addiction to painkillers … .”[28]
[28]PCB 159
34Thereafter, it was recorded:
“In September 2022, he returned to work as a labourer with Top Up Labour Hire, where he currently works between 40 to 56 hours per week. His current responsibilities primarily involve driving a lift around the job site, and he does not have to perform any physically demanding tasks or heavy lifting.”[29]
[29]PCB 159
35As to his current symptoms and complaints, it was recorded:
“… [The plaintiff] reports that he continues to experience persistent lower back pain. The pain primarily affects the left paraspinal region of his lumbar spine, and occasionally radiates down his left leg. He finds it challenging to sit or stand for extended periods and he frequently needs to take breaks to stretch. Walking long distances exacerbates the pain, and he is unable to perform any activities that involve repetitive bending, twisting, or heavy lifting.
He remains independent with his activities of daily living, but his father performs the majority of the domestic duties and grocery shopping. While he can still drive, he can only manage driving short distances due to his condition. He reports that his sleep is constantly interrupted and he wakes on a regular basis due to his pain.
He reports that the injury has significantly impacted every aspect of his life. Previously, he enjoyed various physical activities such as bike riding, going to the gym, and motorbike riding, but he now struggles to participate in these activities. The injury has also greatly affected his social life, and he lost many of his friends due to his addiction to opioid medication during the years following the injury. He reports that he is often in too much pain to socialise with his remaining friends, and this has taken a toll on his mood and mental health. He has since sought treatment from both a Psychologist and Psychiatrist. He is concerned about his future and he worries about how he will support himself financially. He reports that he has now learned to live with the pain.”[30]
[30]PCB 160
36It would appear that all the relevant radiological investigations were provided to Mr Asaid, but he particularly referred to a report of neurosurgeon, Dr Armin Drnda, dated 23 September 2021, which made reference, inter alia, as follows:
“… An MRI scan of the lumbar spine, performed on 6 December 2019, showed slightly diminished right extraforaminal prolapse. The annular tear was not visible. The disc L4/5 appeared unchanged in its hydration (mildly desiccated). There was no significant foraminal stenosis and no canal stenosis. The alignment of the spine was physiological. The protruded disc appeared to have healed.”[31]
[31]PCB 161
37As to his pre-existing medical history, it was recorded:
“… [The plaintiff] is an otherwise well gentleman. He reports that prior to the incident on 17 April 2018, he experienced occasional lower back pain related to the physical and labour-intensive nature of his role over a long period of time, however, he was able to continue working unencumbered.”[32]
[32]PCB 161
38On physical examination, it was noted:
“He walked with a mildly antalgic gait. He was able to walk on his heels and his toes. He had near normal lumbar spine flexion, however, when standing from a flexed position, he walked his hands up his thighs. He had reduced lumbar spine extension and lateral flexion to the left side. There was no evidence of paraspinal muscle spasm or paraspinal muscle tenderness.
Lower limb neurological examination was unremarkable. He was able to straight leg raise to 50 degrees on the left side and 70 degrees on the right.”[33]
[33]PCB 161-162
39Mr Asaid was asked, given the pre-existing symptoms, whether the plaintiff:
“… continues to suffer ongoing pain and restricted movement as a result of the work injury … [the plaintiff] suffered to his lower back on or about 17 April 2018. Please find enclosed Dr Cesar Tan (sic) (General Practitioner) clinical record in respect of complaints of lower back pain in the years 2012-2017.”[34]
[34]PCB 162
40Mr Asaid replied:
“… [The plaintiff] reports that prior to the incident on 17 April 2018, he experienced occasional lower back pain related to the physical and labour-intensive nature of his role over a long period of time, however, he was able to continue working unencumbered. His current condition and physical restrictions are likely as a result of the workplace incident on 17 April 2018.”[35]
[35]PCB 162
41The diagnosis of the relevant lower back injury was:
“L4-5 disc prolapse with the subsequent development of chronic lower back pain.”[36]
[36]PCB 162
42He also noted that the request for pain management treatment for his work-related lower back injury was entirely reasonable. He also noted that the plaintiff had since returned to suitable employment in a full-time capacity. As to his physical activities, such as bike riding, going to the gym and motorbike riding, Mr Asaid recorded:
“… he now struggles to participate in these activities. The injury has also greatly affected his social life, and he lost many of his friends due to his addiction to opioid medication during the years following the injury. He reports that he is often in too much pain to socialise with his remaining friends, and this has taken a toll on his mood and mental health.”[37]
[37]PCB 164
43Finally, in the post-adjournment period, the plaintiff was assessed by sports and industrial physician, Dr David Kennedy, on 21 April 2023. He was provided with the relevant radiology and first two affidavits of the plaintiff. As to the past medical history, he recorded:
“… On reviewing all his medical records, … [the plaintiff] had previously been assessed by his general practitioner for some discomfort and pain in his lower back between 2012 and 2017, with the type of work that he was performing as a labourer, and he underwent a CT scan of the lumbosacral spine on 26 July 2014, which did not reveal any structural abnormality. During this time … [the plaintiff] had an occasional massage but no other treatment for discomfort and pain in his lower back and he was able to continue working. … .”[38]
[38]PCB 166-167
44His current status was recorded as follows:
“… [The plaintiff] resumed work as an elevator/lift operator at a construction site for the past six months or so, working for Top Up Labour. … [The plaintiff] has remedial massage about once per week and he continues to take medication for sleep problems.”[39]
[39]PCB 168
45The only reference to medication was as follows:
“He has problems sleeping because of the low back pain and discomfort and he requires sleep medication.”[40]
[40]PCB 169
46Further, Dr Kennedy opined:
“… [The plaintiff] will continue to have restrictions in relation to his physical capacities and capabilities and these restrictions relate to the injuries sustained at the time of the work incident on 17 April 2018 and do not relate to any previous problems in his lumbar spine, with minor discomfort in his lower back with work activities between 2012 and 2017. Prior to the incident, on 17 April 2018, … [the plaintiff] states that he was not experiencing any significant problems in his lower back and was able to work unrestricted in form work as a labourer until the work incident on 17 April 2018.”[41]
[41]PCB 172
47Finally, Dr Kennedy stated that the plaintiff would benefit from a pain management program with treatment in relation to his work-related injuries.
Analysis
48Defence counsel accepted in opening that the plaintiff had suffered an aggravation injury at work on 17 April 2018; however, as at the date of hearing, the defendant contends that the plaintiff’s lumbar spinal condition is no longer work related. Alternatively, if the present condition is still related to the work injury, it does not meet the “very considerable” test for “serious injury” as per the dicta in Petkovski v Galletti.[42]
[42][1994] 1 VR 436
49The medical records from the general practitioner’s practice clearly indicate treatment for lower back pain over many years commencing in approximately November 2012. On 30 November 2012, Dr Tan notes:
“LOWER BACK PAIN FOR YEARS
RADIATION
…
TREATMENT : REST, EXERCISE, [ANTI-INFLAMMATORIES]
ADVISED TO ATTEND CHIROPRACTOR.”[43]
[43]DCB 87
50Further, on 2 December 2013, Dr Tan notes:
“LOWER BACK PAIN FOR 1 DAY
…
… TENDER ON PALPATION
RANGE OF MOVEMENT FULL IN ALL DIRECTIONS
…
TREATMENT ; REST, EXERCISE, [ANTI-INFLAMMATORIES].”[44]
[44]DACB 88-89
51On 17 April 2014, the note is:
“LOWER BACK PIAN
…
NE[E]DS X-RAY.”[45]
[45]DACB 89
52On 21 July 2014, Dr Tan notes:
“LOWER BACK PAIN FOR 4YEARS
RADIATION RIGHT LEG
…
DX: DISCOGENIC LOWER BACK INJURY
…
TREATMENT : REST, EXERCISE, [ANTI-INFLAMMATORIES].[46]
[46]DACB 90
53On 26 July 2014, a CT scan of the lumbar spine revealed no abnormality detected.[47]
[47]PACB 62
54On 8 November 2014, the plaintiff attended chiropractor, Dr Joe Bonanno, at the Discovery Chiropractic Centre. There was a history of lower back pain in the right midsection:
“… NO MAJOR CAUSE – CAN HAPPEN ANY TIME
…
… CHRONIC BUT ACUTE AT TIMES WHEN FLARING UP
… NOT SEVERE, SHARP AT TIMES
AGGRAVATING FACTORS CAN HURT WHEN LYING IN BED AND THEN WAKING UP …
…
WORKING DIAGNOSIS: SEGMENTAL BIOMECHANICAL JOINT DYSFUNCTION T7/8 AND L SIJ.
…
POST-ADJUSTMENT ADVICE ICE PROTOCOL … 3 TIMES A DAY
WALK-UP TO 30 MINUTES
LIMIT FLEXION/LIFTING HEAVY ITEMS.”[48]
[48]DACB 393-395
55It would appear that the plaintiff attended this chiropractor on at least eight occasions between 8 November 2014 and 10 December 2015, of which the plaintiff stated in evidence before me, that he had no recollection.[49]
[49]T22, L5
56On 11 November 2014, after discussion about treatments, physiotherapy, chiropractor, acupuncture and steroid injections, Dr Tan took a history of:
“LOWER BACK PAIN FOR YEARS
NO RADIATION
…
RANGE OF MOVEMENT LIMITED IN ALL DIRECTIONS
…
DX: DISCOOGENIC LOWER BACK INJURY.”[50]
[50]DACB 91
57On 12 February 2015, the plaintiff attended chiropractor, Dr Bonanno, with a note:
“HE HAS BEEN QUITE GOOD UNTIL 2 WKS AGO
…
LVP RETURNED SPREADS ACROSS LB BILATERALLY.”[51]
[51]DACB 401
58On 23 February 2015, Dr Bonanno notes:
“WAS SORE OFF AND ON IN [LOWER BACK]
SUBJECTIVE FINDINGS L LBP AND GLUTEAL PAIN.”[52]
[52]DACB 402
59On 10 March 2015, Dr Bonanno notes:
“LBP SETTLED BUT RETURNED RECENTLY.”[53]
[53]DACB 403
60On 31 March 2015, Dr Bonanno notes:
“WAS OK UNTIL YESTERDAY STARTED FEELING PAIN AGAIN.”[54]
[54]DACB 404
61On 29 July 2015, the plaintiff attended Dr Tan with a history of:
“LOWER BACK PAIN FOR 4 DYAS (sic)
…
DX: DISCOGENIC LOWER BACK INJURY
TREATMENT ; REST, EXERCISE, [ANTI-INFLAMMATORIES].”[55]
[55]DCB 93
62On 10 December 2015, Dr Bonanno notes:
“HAD BEEN WELL FOR MANY MONTHS LBP AND MID Tx PAIN RETURNED LAST WEEK.”[56]
[56]DCB 405
63On 9 June 2016, general practitioner, Dr Tan notes “LUMBAR PAIN radiaitng (sic) to the left testicle for 3 days” and prescribed Tramal.[57]
[57]DCB 93
64Between March and November 2018, the plaintiff attended psychologist, Claire Gore, for three sessions of treatment for adjustment disorder/anxiety.[58]
[58]DCB 158
65On 20 March 2018, Dr Tan instigated a GP Mental Health Treatment Plan.[59]
[59]DCB 78
66On 10 April 2018, the plaintiff attended physiotherapist, Alicia Frey, for left lumbar dysfunction. A history recorded was:
“flare up L Lumbar pain today. nil LL referral.
long history of L Lumbar dysfunction.has seen chiro - no improvements.”[60][60]DCB 84
67She advised heat, rest and two days off work.
68On 12 April 2018, there was a follow-up attendance on physiotherapist, Alicia Frey, with a history of:
“felt good after physio and following day.
last night - spent prolonged period lying down, sore last night and this am.
took today off work.has been walking and using heat pack.”[61]
[61]DCB 85
69There have been no reports from Alicia Frey, Dr Bonanno or Claire Gore tendered in this proceeding.
70After incurring the admitted injury on 18 April 2018, the plaintiff attended his general practitioner, Dr Tan, who took a history of:
“LOWER BACK PAIN FOR
RADIATION left hip
…
- doing heavy lifitng (sic) constantly 40 kg at least
…
DX: DISCOGENT BACK INJURY
SCIATICA?
TREATMENT : REST, EXTERCISE, [ANTI-INFLAMMATORIES]
BRUFEN …
TRAMAL … .”[62]
[62]DCB 97-98
71Discussion also ensued about the plaintiff’s attendance upon physiotherapist, Alicia Frey and osteopath/remedial massage therapist, Scott Tindall, for massage, cupping and acupuncture.
72There is no report from Mr Tindall tendered in this proceeding.
73On 20 April 2018, Dr Tan has a history:
“lower back pain 9th of April while at work . heard a click . pain went away but came back the next day . thought it was muscular pain but pain become so severe and intolerable.”[63]
[63]DCB 98
74Discussion ensued as to treatment and Endone was prescribed.
75On 23 April 2018, Dr Tan took a history:
“LOWER BACK PAIN
- STILL sore lower back
- Endone working
- DISCUSSION ABOUT VARIOUS TREATMENT …
…
Conclusion:
Right paracentral disc herniation at L4/5 compressing the at the exit foramen.
Unable to do prolong[ed] standing or sitting.”[64]
[64]DCB 98-99
76Thereafter, there is consistent treatment from Dr Tan, including the procuration of the radiological examinations tendered in the proceeding. On 24 May 2018, there is a prescription for Panadeine Forte and on 28 May 2018, a prescription for Endone, which was repeated on 14 June 2018. A further prescription on 21 August 2018 for Endone, Panadeine Forte and Valium.
77Once again, there were prescriptions for Endone and Panadeine Forte on 2 November 2018, Tramal on 4 February 2019 and Lyrica and Tramal on 23 April 2019.
78On 23 May 2019, Dr Tan notes “LOWER BACK PAIN FOR years”.[65]
[65]DCB 105
79The plaintiff obtained repeat prescriptions for Endone on 25 June 2019, 17 July 2019, 6 September 2019, 13 December 2019, 8 January 2020, 4 March 2020, 27 April 2020 and 17 June 2020. In that period, there are also numerous prescriptions for Panadeine Forte, OxyNorm and Targin. There was also a referral to Dr Clayton Thomas on 14 April 2020 and Dr Ales Aliashkevich, neither of whom provided reports in this proceeding.
80On 3 August 2020, Dr Tan notes:
“Patient is no longer identified as being drug dependent.”[66]
[66]DCB 145
81On 10 August 2020, Dr Tan took the following history:
“sweating shaking cant sleep
needs to see pain manamgent
to stop no[r]span gradually.”[67]
[67]DCB 146
(sic)
and referred the plaintiff to Dr Anina Fitzgibbon.
82There was no report tendered from Dr Fitzgibbon in this proceeding.
83Further, on 18 August 2020, Dr Tan referred the plaintiff to Dr Malcolm Ong for pain management. Similarly, no report from Dr Ong was tendered.
84It would appear a further prescription for Endone was given on 10 November 2020. On 4 December 2020, Dr Tan noted “Endone not enough for breakthrough pain”. Panadeine Forte was prescribed.
85Thereafter, there are prescriptions for Panadeine Forte and Lyrica, and Norspan patches. On 25 May 2021, Dr Tan prescribed Panadeine Forte, but the documents tendered in evidence do not reveal any further prescriptions for any painkilling drugs, although the plaintiff, himself, has provided evidence concerning same, as stated above.
86Accordingly, it would appear to me that the treatment for the plaintiff’s lumbar spine after the subject injury on 17 April 2018 is in considerable contrast to treatment prior to that date, notwithstanding the manner in which the evidence of pre-existing injury has been presented to the Court. Accordingly, I am satisfied there is still a work-related contribution to the plaintiff’s present lower back condition, consistent with an aggravation injury, as pleaded, being an aggravation of pre-existing degenerative change, particularly at the L4-5 level.
87The question as to whether that aggravation injury satisfies the threshold as per the template set down in Petkovski[68] is another matter.
[68]Op cit
88The plaintiff commenced his present job with Anglo Italian Concrete company shortly prior to 1 May 2023. Under cross-examination before me, he stated he works full time from about 5.00am to 1.30pm and works overtime if it is available. He is using a ride-on concrete finishing machine, as well as a different type of machine which is hand operated and is a “vibrating finishing machine”.[69] The manually-operated machine has blades on the bottom and:
“… you pull it down for it to turn to it's left, you lift it up for it to turn to it's right and you have to go over the concrete multiple times just to burn the edge of the concrete to give it a finish and that's about all you use that machine for.”[70]
[69]T49, L14-18
[70]T49, L25-29
89The machine vibrates when it is being placed over the concrete and it operates by applying manual pressure with your hands, “it's not a machine where you're pressing a button and it operates freely”.[71]
[71]T50, L11-12
90The plaintiff stated that he was currently enjoying the job, but he disagreed with Dr Chan that it was a demanding physical job because you are operating a moderately-heavy manually-operated machine. He described the job as “not very demanding”,[72] although he stated, “it is a heavy machine if you try and lift it by yourself”.[73] It was, nonetheless, a heavier job than walking around being an occupational health and safety officer.[74] He also agreed he told Dr Lucas, on behalf of the defendant, that presently he was “comfortable with [his] current work activity participation”.[75] He operated that machine up to three hours per day[76] and he spends about the same amount of hours on the ride-on machine.[77] When not performing one of those two jobs, he described the rest of the hours as follows:
“So, once the concreters who filled the concrete, who pour the slabs, so we've got to help them with a vibrating machine which is sort of like a whipper snipper that's got a vibrator on the end and you just walk through and place it as they pour the concrete.”[78]
[72]T50, L16
[73]T50, L24-25
[74]T50, L22-28
[75]T51, L2-10
[76]T51, L12
[77]T51, L27
[78]T51, L30 ꟷ T52, L3
91Further, he uses a crowbar to “tap them out” and he agrees that the work does “involve physical labour”.[79]
[79]T52, L18-19
92In cross-examination, the plaintiff said that, on the morning of the hearing he took two Panadol and two Nurofen before attending court and that he had taken forty tablets in the last two weeks.[80]
[80]T53, L10-12
93The plaintiff also stated, in cross-examination, that he had run a business known as Melbourne Motorcycle Carriers, in recent times which consisted of the operation of a motorcycle-carrying van.
“So we used to load motorbikes into the back of a van, had a ramp and stuff like that. So you just get to ride the bike straight into the back, lock it in and then deliver it.”[81]
[81]T35, L1-4
94The plaintiff also agreed that his own Facebook page, dated 30 May 2019, contained an advertisement from a motorcycle club known as Route 66, recommending his company for the business.[82] And, further, he was asked:
Q:“And the service that you were providing, as you've explained to His Honour, was transportation of motorcycles. That was for, I take it, a range of things, breakdowns, delivery to dealerships, delivery to clients, special events, things like that?---
A:Correct.”[83]
[82]T35, L8-15
[83]T36, L24-28
95The plaintiff also conceded that he had not mentioned this employment in his first affidavit sworn 9 July 2020. He also agreed that there was no way known he would have forgotten this employment when he swore the first affidavit.[84]
[84]T38, L4-7
96Ultimately, defence counsel submits in this case:
“Secondly, the ability to work full time plus overtime in the concreting industry is a factor that tends against a finding of very considerable consequences, albeit that of course Your Honour has to make a determination on the basis of all of the evidence.”[85]
[85]T111, L10-14. Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [47]; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraphs [77]-[79]. See also Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraph [26].
97In the case of Stijepic,[86] the Court, consisting of Ashely JA and Beach AJA, stated, at paragraph 42:
“… The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”
[86]Op cit
98In my view, the circumstances of this case do bear some correlation to the facts in Stijepic.[87] The Court therein stated, at paragraphs 43 and 44:
“The circumstances of this case , in our opinion, put it on the borderline. The appellant is a young man with low back pathology which has at least been aggravated by the compensable injury. He faces, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life. When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.
We do not doubt that the evidence to which we have referred discloses pain and suffering consequences which are both marked and significant. But we are not persuaded that those consequences can be fairly described as being more than significant or marked or as being at least very considerable. It is to be remembered that in reaching a conclusion whether a worker has established that he (or she) suffered serious injury ‘the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.’[88] We consider it a fair summary of the position that while the appellant has suffered from (and will likely continue to suffer from) inhibitions on his ability to engage in unrestricted physical activity, by and large his ability to engage in the activities that are important to him (and will be important to him in the future) is not affected to any great degree. In particular, it does not appear to us that the appellant’s enjoyment of life (comprising his social life, his ability to travel and his ability to engage in guitar playing and social sports) has been affected in a way which could be described as more than marked or more than significant — and certainly not ‘at least very considerable’.”
(Footnotes omitted.)
[87]Op cit
[88]See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
99In the particular case before me, I am prepared to accept that the plaintiff’s addiction to opioids, and recovery therefrom, may have played some part in his lapses of memory in the ways described above. However, it is clear enough that he has suffered from a chronic back condition for many years prior to the subject injury and it would appear that his return to work has spasmodic reliance on analgesia, and a social life, as disclosed by his Facebook entries, lead me to the view that he has not discharged the onus of proof with respect to the “very considerable” test. Finally, I would note the photograph on his Facebook page, whereby a friend has jumped onto the plaintiff with his legs around his waist and not producing any visible sign of discomfort is informative, to some extent, of the disability he suffers from, and is consistent with his ability to carry out the full-time work in which he is currently engaged.
100The application is dismissed.
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