Maurer v Victorian WorkCover Authority
[2017] VCC 1100
•15 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05671
| ANDREW MAURER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2017 | |
DATE OF JUDGMENT: | 15 August 2017 | |
CASE MAY BE CITED AS: | Maurer v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1100 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – lumbar spine – pain and suffering only – range case
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)
Cases CitedTransport Accident Commission & O’Dea v Dennis [1998] 1 VR 702; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sabo v George Weston Foods (2009) VSCA 242; Stijepic v One Force Group Australia Pty Ltd (2009) VSCA 242; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326;
Judgment: Leave granted to bring proceedings in relation to pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Oldfield | Zaparas Lawyers |
| For the Defendant | Ms R Kaye | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with Urban Warehouse (“the employer”) on 18 February 2013 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The relevant body function is the lumbar spine
5 By s134AB(38)I of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, “as being at least very considerable and more than significant or marked”.
6 Subsection 38(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
8 The plaintiff relied upon two affidavits and gave viva voce evidence. His wife, Jane Rawson, swore an affidavit on 1 May 2017. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
9 The plaintiff is presently aged forty-two, having been born in Canberra in 1975. He lives with his wife, Jane, in Footscray.
10 Having completed Year 12, the plaintiff worked in a variety of jobs. From about 2008, he started working for the employer, a warehousing and storage company, working thirty hours a week. In 2008, he also commenced a building and architecture course at Victoria University part time (“the course”).
11 As a store person working for the employer, the plaintiff was required to perform a variety of tasks, including loading and unloading trucks, wrapping products on pallets and replenishing stock levels.
12 On the said date, while performing replenishing duties, the plaintiff felt back pain while lifting and stacking a box of paint tins on a rack (“the incident”).
13 The plaintiff reported the incident to his supervisor. He saw a local doctor in Laverton, Dr Koh, whom he believed prescribed painkillers and certified him unfit for work for two days and referred him to a physiotherapist.
14 The plaintiff returned to work with the employer and was placed on light alternate duties that did not require any lifting. The light work involved wrapping up pallets and replenishing stock with the restriction. After the injury, he did not do loading or unloading of trucks. There was also a lot of picking and packing work he could not do because of the weight restrictions. However, he continued to experience flare ups of his lower back pain that would shoot down his buttocks into his legs.[3]
[3]Transcript (“T”) 13
15 The plaintiff continued weekly physiotherapy throughout early 2013 and attended doctors at Laverton, where he received prescriptions for painkillers Lyrica, dantrolene and Voltaren.
16 The plaintiff commenced hydrotherapy in about May 2013. However, the pain and discomfort in his lower back persisted.
17 In the middle of 2013, the plaintiff was sent for a lumbar MRI scan. He was subsequently referred to Mr Jithoo, neurosurgeon, whom he saw once in about September that year. Mr Jithoo did not recommend any surgical treatment and suggested the plaintiff continue to treat his injury with physiotherapy and exercise.
18 In about October 2013, the plaintiff commenced a functional restoration program with physiotherapist, Matthew King, which ran until April 2014, attending on a weekly basis, involving Pilates, gym sessions and hydrotherapy.
19 In about November 2013, the plaintiff started seeing Dr Adams for psychological treatment, as he was having difficulty coping with his lower back pain and discomfort, particularly with prolonged sitting. The plaintiff had also noticed he was becoming easily frustrated and short tempered and had become socially withdrawn.
20 In about December 2013, the plaintiff was referred to another neurosurgeon, Mr Aliashkevich. At that time, the plaintiff was continuing to suffer from flare ups of his lower back pain, with shooting pain down his legs. He was sent for an x‑ray and CT scan and shortly thereafter, referred to Dr Sullivan, a specialist pain physician.
21 The plaintiff first saw Dr Sullivan in about March 2014. He recommended the plaintiff have epidural injections in his back, which were carried out in May that year, and provided some temporary relief.
22 In about July 2014, the plaintiff started seeing general practitioner, Dr Nguyen, for treatment of his injuries.
23 On 18 August 2014, Dr Sullivan performed a radiofrequency denervation procedure on the plaintiff’s lumbar spine. Thereafter, the plaintiff gained good pain relief for two or three months. Unfortunately, the pain and discomfort then started to gradually return, particularly, if he had to sit for prolonged periods.
24 In about mid 2014, the plaintiff stopped working for the employer. He left his job because he had been offered more hours with an architectural firm where he was doing the internship. He put it to the employer that he work less hours and still do the internship, but the employer did not see that as appropriate. At that stage, the plaintiff was working thirty hours a week. He agreed he left the employer to fit in with his architectural work.[4]
[4]T14
25 About the time the plaintiff left the employer, he had started to do some deliveries for “5 and Dime” a bagel shop in the city, driving a work vehicle, delivering bagels to the CBD and inner suburbs. Initially, he worked maybe three or four hours each day. He was required to do a lot of short journeys, of about five or six minutes’ duration. He had to take the goods he was delivering from the vehicle to the customer’s shop.[5]
[5]T15
26 As of March 2016 when he swore his first affidavit, the plaintiff thought that further denervation procedures were likely, and he had been encouraged to avoid relying on strong painkilling medication and, instead, try and manage with exercise.
27 The plaintiff was then going to the gym and swimming pool weekly and was doing back strengthening exercises he had been taught. He was taking Nurofen to manage the pain when it was bad, which might be once or twice a week.
28 The plaintiff finished the course in about July 2015. His grades had been consistently good.[6] However, he found sitting through lectures very difficult, as doing so tended to aggravate his lower back pain, and he was given permission by lecturers to stand up and leave the lectures when needed.
[6]T13
29 In the final year of the course, the plaintiff participated in an internship program with an architecture firm part time two days a week. During that time, he was provided with a stand-up desk so he did not need to sit for prolonged periods. However, even standing in a stationary position aggravated his back and he found it more beneficial to be actually moving.[7]
[7]T23
30 Whilst doing the internship, the plaintiff’s interest was working in the design field. He was working at the bakery because the hours fitted in. He did the internship because, at that time, his goal was to get into the building design field in which he had been studying for the previous seven years. The internship was independent of the course requirements.[8]
[8]T16
31 The internship went for about a year or so, starting off as one day a week and then increased to two. It involved a number of tasks. The plaintiff sometimes attended sites and took measurements. He did administrative work, but the main part was doing a design job using software to design anything from extensions to full houses and commercial buildings, using his knowledge from the course.[9]
[9]T17
32 The plaintiff ceased the internship because he did not see a future in that line of work as he was unable to sit for long periods. He thought it was time to move on because of his back pain. Upon finishing the course, he decided not to pursue a career in building and architecture.[10]
[10]T17
33 From August 2015, the plaintiff has been working full time at “5 and Dime” as a baker. His duties allow him to move around and take pressure off his back. This work aggravates his back far less than what he had been doing as an intern. He trained for the baker’s role while on the job doing delivery work.[11]
[11]T15
34 The plaintiff works as a baker for about seven and a half hours a day. The baking work is not particularly heavy. He is also involved in smoking meats and preparing sandwich ingredients. He only does delivery work if someone else is unavailable.[12] Occasionally he is involved in running farmers’ markets and doing some cleaning at the bakery. The trays he uses for the bagels are smaller than a domestic baking tray.[13]
[12]T18
[13]T19
35 The plaintiff left “5 and Dime” for a brief time and worked at Sourdough Kitchen for about three months earlier this year and then went back to his previous job. Part of his dissatisfaction with the Sourdough Kitchen job was having to work longer shifts.[14]
[14]T20
36 In 2016, the plaintiff earned about $43,000 and in the two years prior, he earned about $25,000.[15]
[15]T20
37 The plaintiff finds at times he gains “satisfaction” in his job as a baker but did not agree he told Mr Ng’s it gave him “great enjoyment”. At the time of this examination, the plaintiff would have been working at the Sourdough Kitchen and he was dissatisfied with the work and ended up leaving after a relatively short time.
38 The plaintiff however gets satisfaction from making a good product. He would not work if he was not getting paid. He explained there are “different levels of enjoyment”.[16]
[16]T22
39 The plaintiff is currently not looking for any other work, mainly because he has limited options now.[17] He feels he needs to do a job which is fairly mobile, as he struggles to sit for any length of time. Even standing in the one spot, as he was in the witness box, caused him discomfort in his lower back, “glutes and butt” and he experienced shooting pain down the back of both legs.[18]
[17]T22
[18]T37
40 Having finished the internship and the course, the plaintiff has not made any enquiries about jobs he may be able to do where he might utilise his building and design skills in undertaking work which involved more going out and measuring sites and less design work. He had not made enquiries because, in his experience, through his studies and working in the internship, he learnt that most of the design job involves sitting doing work.[19]
[19]T23
41 Further, the plaintiff had done another internship prior to his injury and he had spoken to many building designers who were doing the course who were in the industry about whether there were jobs out there where he could actually go out and be more active.[20] Accordingly, he has not submitted any applications to any other building and design employers, nor has he looked for part-time work in that field.[21]
[20]T24
[21]T23
42 The plaintiff agreed he could not definitively say there is no building and design job out there as he has not applied for every job.[22]
[22]T26
43 The plaintiff could remember Mr Brazenor discussing “rules for living” with him. The rules included walking every day, not sitting on soft chairs and avoiding, as much as possible, bending and twisting.
44 The plaintiff has walked every day and has made a conscious effort not to sit on soft chairs. He had already done that before Mr Brazenor’s advice. He has not made any efforts to avoid or reduce bending or twisting of his waist.[23]
[23]T25
45 The plaintiff could recall Mr Brazenor telling him that if he followed the “rules”, there would be an 80 per cent chance of him becoming pain free and he could get back to sitting down without pain.[24]
[24]T25
46 As of March 2016 when he swore his first affidavit, the plaintiff continued to suffer from variable lower back pain daily. If he had to sit for more than thirty or forty minutes, the pain started to worsen and, on bad days, would shoot down his buttocks into his legs.
47 At that stage, the plaintiff was more restricted than he had been prior to the incident injury. He had to change the way he did many things around the house so as to avoid aggravating his injury. He tended to move about more slowly and carefully and avoid activities that required twisting and bending. That meant it took him longer to do simple things like vacuuming or washing the dishes.
48 Prior to sustaining injury, the plaintiff enjoyed good health and had an active lifestyle. He used to enjoy frequently riding his bike and it was one of his main sources of transport.
49 Since the incident, the plaintiff had been unable to ride a bike without aggravating his back pain, and eventually decided to sell the bike because he was not using it. He then tended to get around using mostly public transport.
50 The plaintiff could no longer do rock climbing, snowboarding and other recreational activities he used to enjoy.
51 Prior to the injury, the plaintiff also used to enjoy travelling with his wife and friends. They often travelled overseas or went camping. However, since the incident, he travelled far less often. He found travelling long distances aggravated his back pain because of the prolonged periods of sitting involved. He had turned down a number of holiday opportunities with his wife and friends as a result of his injury. He also found it more difficult to travel interstate to visit family.
52 By that stage, the plaintiff had undergone a lot of treatment. He believed he had followed his doctors’ advice carefully; however, he continued to suffer from ongoing pain and discomfort.
53 The plaintiff had then been advised by his doctors that his lower back pain would likely to continue with time. As he was only young, he was concerned with the prospect that he was going to have to live with pain and restriction caused by his back injury. His options to work and pursue recreational activities had already been significantly limited because of his injury, and he worried about what the future held should his condition deteriorate further.
54 The plaintiff continues to suffer daily pain in his lower back with regular flare ups, during which time there is radiating pain into his buttocks and legs. He thought, overall, his lower back pain had worsened since March 2016.
55 On good days, the pain is a dull ache, and on bad days, the plaintiff suffers from a shooting pain in his lower back into his buttocks and down both legs, though not at the same time. The only way he can obtain relief is to walk and move around, and sitting for prolonged periods continues to aggravate his pain.
56 Despite the gym and swimming exercise program, which he did until late last year, monitored by his physiotherapist, Ms Kemp, whom he saw weekly, the plaintiff’s back condition deteriorated over last year. His back pain was flaring up more regularly and for longer periods. Towards the end of last year, it was flaring up every two or three weeks, and those flare ups would last up to four or five days at a time.
57 The plaintiff agreed he noticed a significant improvement with Tara Kemp’s physiotherapy treatment in the second half of last year, although he thought the word “significant” might be overstating it a bit.[25]
[25]T34
58 The plaintiff continues to try and avoid painkillers, preferring to use physical therapy. He has learnt some meditation techniques; however, as the year went on, he found he was using more painkillers, and when his back pain flared up he would take up to eight Nurofen a day for four or five days, and that pattern continues.
59 The plaintiff suffers from a form of inflammatory bowel disorder called ulcerative colitis, and he was advised by his gastroenterologist it was best he did not take pain medication over a prolonged period of time because it could flare up that condition.[26]
[26]T40
60 By late last year, the plaintiff’s back condition had got to the point he decided to go back to Dr Sullivan, who referred him for a further MRI scan and recommended a repeat denervation, which was carried out in April 2017. The plaintiff has not yet started to obtain the full benefit of that procedure, but like the last time, expects the pain will reduce over the coming months.
61 Dr Sullivan has again advised the plaintiff he can expect the condition to slowly deteriorate following an initial period of improvement and that he can expect to undergo further similar procedures ongoing into the future.
62 The plaintiff agreed that after the second denervation procedure, his pain was definitely not as bad as it was before. He agreed the pattern of flare ups from late last year had certainly settled down since that procedure; however, he would not say they have gone away; they have reduced.[27]
[27]T34
63 The plaintiff had a right shoulder complaint in August 2015. He had some treatment for the shoulder but it is really good now.[28]
[28]T36
64 The plaintiff continues under the care of the Footscray Clinic, but in more recent times has switched to a new general practitioner, Dr Rigley in Yarraville, as he found it difficult to get into the same doctor at Footscray.
65 The plaintiff is also currently having treatment with Dr Justin Moar, a physiotherapist to whom he was referred by Dr Sullivan, as part of the pain management program. He has seen him three times and has another appointment scheduled.[29]
[29]T36
66 The plaintiff remains far less active than he was prior to the incident injury. He continues to be very careful around the house and tends to avoid doing tasks that might aggravate his back, like working in the garden or general household maintenance.
67 The plaintiff continues to avoid many of the activities he did before the injury, like bike riding, snowboarding and rock climbing. He continues to minimise travelling because sitting for long periods aggravates his back condition.
68 The plaintiff agreed, while working with the employer, he did not have a lot of spare time for hobbies. He went indoor rock climbing probably once every few months and had not tried it since the incident.[30] He went rock climbing outdoors less often.[31]
[30]T26
[31]T27
69 The plaintiff could not say for sure how many times he had been snowboarding in the winter prior to the incident, having last gone snowboarding a long time ago. Before he started the course, he would say he was a regular snowboarder. He went snowboarding occasionally, rather than regularly, and had not been to the snow since the incident.[32]
[32]T28
70 The plaintiff had not tried snowboarding since the incident, as he thought it would be counterproductive for his back problem. He had tried lighter exercise such as cycling. Even after relatively short rides, he noticed his back was significantly worse for a couple of days.[33]
[33]T38
71 The plaintiff played tennis fairly regularly with his wife, weather permitting, perhaps once a month before the incident. He was not a member of a club, nor did he play competitively. He has not tried to play tennis since the incident.[34]
[34]T28
72 The plaintiff has not attempted these activities since his injury as he does not want to exacerbate his condition. He thought it was better to try lower impact sports likely cycling before he got into something like tennis, which is a higher impact sport.[35]
[35]T29
73 The plaintiff has continued to swim laps since his injury, but now does less swimming because he focuses more on the exercise routine given to him by his physiotherapist. Previously, he went swimming once or twice a week, sometimes more.[36]
[36]T29
74 The plaintiff continues to do a great deal of walking as it helps take pressure off his back. He goes for walks generally, not on hikes.[37]
[37]T30
75 The plaintiff does mainly core strength work at the gym, but has not been in the last few months because, he has been focusing on the core strengthening routine given to him by his physiotherapist.[38]
[38]T30
76 The plaintiff likes listening to music and attending concerts. He plays the guitar, but not as part of a band. He sometimes goes out and has a drink with his friends at local hotels.[39]
[39]T31
77 Over a recent Easter break, the plaintiff and his wife decided to visit family in New South Wales. Ordinarily that would be an eight-hour drive, but knowing it would likely aggravate his condition, they decided to do the drive over two days, stopping at regular intervals to rest. His wife did her share of the driving despite the fact she does not like to drive.
78 On that drive, the plaintiff and his wife stopped and stayed with friends. It was convenient to do so because he did not want to do the whole trip without having sustained breaks from driving, or even sitting as a passenger, because of his lower back pain.[40]
[40]T39
79 Towards the end of last year, the plaintiff and his wife travelled to the United States and Mexico on holidays. He was careful during the long distance flight to get up and move around as much as possible, but when they arrived in San Francisco, his back was in a bad way and he could not sit down or stand still, and spent the first few days walking around trying to relieve his pain. He got a strong painkiller from a pharmacist. The intense pain continued for three or four days before eventually returning to its usual level. Thereafter, he was able to continue with the holiday with only occasional flare ups.
80 Prior to going to Mexico, the plaintiff obtained a scuba diving ticket and went diving once on that holiday. He has not done it since, and he does not plan to do it often.[41]
[41]T32
81 The plaintiff is no longer the active and sociable person he was before the incident. He continues to follow very carefully the advice from his doctors and therapists to maintain as normal a life as possible. Despite this, his back injury has continued to have a considerable impact on his life. He has had to adjust his lifestyle in order to manage his current levels of pain. He now lives a much different life. There are now very significant limitations on the things he can do.
The Plaintiffs’ treaters
82 Matthew King, physiotherapist at Spinal Management Clinics of Victoria, supervised a functional restoration program undertaken by the plaintiff from 17 October 2013 to 22 April 2014.
83 The plaintiff was seen subsequently a couple of times for an update in his gym program, last having been seen in January 2015.
84 Mr King noted the plaintiff’s compliance through the program was impeccable; however, he thought that the plaintiff will not make a 100 per cent recovery and he would continue to have some level of discomfort in sitting for long periods of time, which was a condition the plaintiff would have to self-manage over time.
85 Dr Jithoo, neurosurgeon, wrote to the plaintiff’s general practitioner, Dr Koh, in December 2013.
86 Dr Jithoo noted that examination revealed a young man who had a full range of lumbar flexion and extension. Straight leg raising was unimpaired in both legs and both knee and ankle jerks were present. Sensation in all dermatomes was normal, and plantar reflexes were down going.
87 Dr Jithoo thought the MRI scan revealed an L5-S1 moderate disc protrusion with central herniation. There was no significant foraminal narrowing or spinal canal stenosis seen.
88 Dr Jithoo suggested the plaintiff had two problems, one being lower back pain due to L5-S1 discogenic disease and, secondly, thigh symptoms suggestive of meralgia paresthetica.
89 Dr Jithoo advised the plaintiff to continue with simple analgesics and he had given him a form for L5-S1 epidural steroids. The plaintiff was to see him in six weeks and they would then discuss surgical options if he was still symptomatic.
90 Mr Aliashkevich, neurosurgeon, first examined the plaintiff on 9 December 2013. On re-examination on 20 January 2014, the plaintiff reported gradual improvement of his lower back pain and leg pain. He rated the intensity of his back pain as between 4 to 5 out of 10 and mentioned he could walk normally and could sit for longer periods of time than previously.
91 When last seen on 20 January 2014, Mr Aliashkevich noted the plaintiff was unable to return to his pre-injury employment or alternate duties.
92 Dr Richard Sullivan, pain specialist, continues to treat the plaintiff, having first seen him in March 2014 on referral from spinal surgeon and neurosurgeon, Mr Aliashkevich.
93 The plaintiff initially presented as a man with a chronic pain condition presenting as chronic bilateral sciatica, including bilateral gluteal pain and bilateral posterior thigh and calf pain.
94 The plaintiff advised that following the incident injury, his pain continued to flare intermittently for a period of time. He then had chronic lower back pain that was aggravated by sitting, and when he got up, the pain radiated to his gluteal region and down the posterior aspect of both legs.
95 The plaintiff was then on modified duties, working eighteen hours a week.
96 On examination, the plaintiff had a reasonable range of lumbar movements and negative straight leg raise at 70 degrees. There were no neurological abnormalities on examination.
97 Dr Sullivan then diagnosed chronic lower back pain and chronic bilateral sciatica.
98 Dr Sullivan thought there was radiological evidence of potential neural irritation. In terms of facilitating the diagnostic assessment of the plaintiff’s pain, he recommended a series of blocks, including bilateral L3, L4 and L5 medial branch nerve blocks, bilateral sacroiliac joint injection, and bilateral L5 transforaminal epidural injection.
99 This procedure took place on 30 May 2014. On review a month later, the plaintiff reported, initially, a significant improvement with the initial round of blocks.
100 On 18 August 2014, the plaintiff underwent bilateral lumbar L3-4 and 5 medial branch nerve radiofrequency denervation.
101 On examination in late October 2014, Dr Sullivan noted the plaintiff had sustained improvement since the denervation. At that stage, the plaintiff reported ongoing problems with his posture during the internship. Dr Sullivan recommended the plaintiff come back to see him if that problem required him to take regular medication and was affecting his functional capacity.
102 Dr Sullivan next saw the plaintiff in May 2015, at which time his back pain was slowly starting to return. He supported the plaintiff continuing in his functional restorative program for at least another year and then see how things settle. He considered repeating the denervation would be a perfectly valid approach in the upcoming weeks when his pain started to interfere with his function.
103 Dr Sullivan next saw the plaintiff on 31 January 2017. The plaintiff advised that the effect of the 2014 procedure had worn off and he presented expressly seeking to repeat the procedure. The plaintiff was then working full time as a baker at “5 and Dime”.
104 Dr Sullivan suggested a repeat bone scan with CT overlay of the lumbosacral region, which was carried out in February 2017, and demonstrated no specific inflammatory changes in the lumbosacral region.
105 On the basis of the non-specific presentation, very much in keeping with the plaintiff’s original presentation, Dr Sullivan recommended further radiofrequency denervation of the lumbar facet joints and bilateral sacroiliac joint injections, which took place on 4 April 2017.
106 Dr Sullivan noted the plaintiff tolerated the procedure well and was to be followed up in six to eight weeks.
107 In his report May 2017 report, Dr Sullivan diagnosed lumbar spondylosis following the incident, resulting in chronic lower back pain. He noted the plaintiff had radiological evidence of an annular tear at L5-S1. He had chronic lower back pain and chronic intermittent sciatica. The plaintiff had substantial associated functional limitations relating to the clinical diagnosis; however, he had been able to return to the workforce as a baker.
108 Dr Sullivan noted the plaintiff is continuing to work as a baker, and being able to sustain that, but there was some degree or difficulty with aggravation of his pain towards the end of his shift.
109 Dr Sullivan then noted the plaintiff had just had the repeat of his lumbar medial branch nerve radiofrequency denervation and was due for clinical review in the upcoming weeks. He expected it would take somewhere between twelve and twenty-four months before the plaintiff would reach the full effect of the denervation, at which time he could be further assessed.
110 Dr Sullivan thought the plaintiff’s prognosis for remaining at work was reasonably good.
111 In a supplementary report of 12 July 2017, Dr Sullivan noted that he expected the same degree of response from the plaintiff as to the first procedure. As such, the plaintiff is likely to stay fit for work up to a point where the efficacy of the current round of treatment wanes. He expected that would happen between six and thirty-six months into the future. After this, the plaintiff should respond favourably to repetition of the procedure. As such, the plaintiff will need ongoing treatment with denervations into the foreseeable future, on average every eighteen months.
112 Dr Claire Moore at the Footscray Clinic advised Allianz in December 2014 that she agreed with the pain specialist that the plaintiff would benefit from a minimum twelve-month gym and pool program, given he had not fully recovered. She described the plaintiff as a very motivated person, and she believed he would make full use of the opportunities that a gym and pool membership would offer.
113 Dr Nguyen at the Footscray Clinic saw the plaintiff for the first time on 5 February 2015. In his report of June 2015, Dr Nguyen detailed the plaintiff’s treatment to date, and noted that he was reporting his symptoms had markedly improved with treatment; however, there were still symptoms which affected his everyday life.
114 Dr Nguyen then thought the plaintiff would benefit from ongoing reviews by Dr Sullivan for further radiofrequency denervations, if necessary, and ongoing physiotherapy with Mr King. He noted the plaintiff’s necessity for further treatment depended on his pain and the extent of improvement he demonstrated.
115 Dr Alexandria Bence from the Footscray Clinic wrote to the Accident Compensation Conciliation Services in September 2015, having then seen the plaintiff for the first time.
116 Dr Bence advised it would be beneficial if the plaintiff continued to have the exercise program at the pool gym to continue to strengthen his lower back, with the aim of preventing further deterioration of his lower back pain.
117 Dr Lie, general practitioner from the Footscray Clinic, reported in February 2016 to the Accident Compensation Service, having first met the plaintiff the previous day.
118 Dr Lie noted the plaintiff had sustained chronic back pain since the workplace incident, resulting in an L5-S1 disc bulge. Dr Lie commented, pleasingly, the plaintiff had noted improvement in symptoms, although he still found it very difficult to sit for a long period of time, in addition to intermittent exacerbation of his back pain. His current employment at the bakery was tailored to this restrictions where he avoided lifting heavy things or sitting for prolonged periods of time.
119 Given the chronic nature of his condition, Dr Lie thought it would be beneficial for the plaintiff to continue to have the exercise program at the pool and gym to continue to strengthen his lower back with the aim of preventing further deterioration of his lower back pain.
120 Tara Kemp from Symmetry Physiotherapy in Williamstown reported in May 2017.
121 Ms Kemp treated the plaintiff for his back condition from 5 August to 27 October 2016, once approval for physiotherapy, and a three-month gym membership was granted following an initial consultation in April 2016.
122 Ms Kemp reported that, at the completion of the three-month program, the plaintiff reported a significant improvement of his pain levels and greater functional work and social capacity. He then transitioned back to self-management of his condition, which he understood would need to continue long term, to aid in maintaining his current capacity.
Investigations
123 There was an MRI scan of the plaintiff’s lumbar spine in late July 2013, after which it was reported there was a moderate sized central posterior disc protrusion at L5-S1 indenting the thecal sac.
124 A nuclear bone scan carried out in December 2013 showed no pathological uptake of tracer.
The Plaintiff’s medico-legal evidence
125 Dr Wayne Ng, neurosurgeon, examined the plaintiff in May 2017.
126 On examination, Dr Ng found the plaintiff had a good range of motion in his lumbar spine without pain or restriction. He was able to stand on his tiptoes, heels and do single leg squats. There was no tenderness on palpitation, or weakness. The plaintiff’s gait was normal.
127 Dr Ng thought the lower back injury was likely in the form of the reported L5-S1 disc prolapse, consistent with the work injury. He considered that there was likely to be an organic component to the plaintiff’s pain.
128 Dr Ng thought that, as a result of the ongoing lower back pain, there was restriction to the plaintiff’s ongoing physical function, noting he was unable to engage in some physical activity, such as rock climbing and previous sporting activities. Therefore, there was some ongoing physical impairment.
129 Dr Ng noted the plaintiff had been able to return to work; however, that was currently in the context of having undergone a recent treatment with radiofrequency ablation.
130 Dr Ng thought it was currently early days following the repeat treatment with ablations. Also, the plaintiff was continuing to undergo physiotherapy with exercises and back strengthening exercises. As such, it was possible that the physical impairment may improve over time, but the plaintiff was unlikely to have complete improvement in his symptoms.
131 As a result of the likelihood the plaintiff was going to have to have some degree of ongoing symptoms over time, Dr Ng thought it would be in his best interest to obtain work in a less physical capacity. He also noted the plaintiff had sought this type of work and currently, had commenced a new job in this less physical capacity. He noted the plaintiff was finding great enjoyment in this new employment.
132 Dr Ng thought, as a result of the lower back injury, the plaintiff should reduce the amount of lifting, bending, twisting and stooping, and also periods of prolonged sitting, standing and walking. This would, however, be fairly general advice for any person, even in the absence of a lower back injury as part of usual workplace health and safety. He thought education for the plaintiff in this regard would be critical, whether continuing with his current employment or avoiding more physical employment in the future.
133 Having seen the plaintiff, Dr Ng thought it quite reasonable he should be able to return to some form of employment and, indeed, he had. He would foresee that the plaintiff could return to any form of employment that did not involve repetitive bending and lifting and, in general, offered the opportunity to minimise strain on his lower back.
134 In another report which also relates to that examination, while repeating his comments about future radiofrequency ablation, Dr Ng added, if the basis of the symptoms was as he discussed, then one might expect recurrence of pain in the future. In the circumstances of ongoing symptoms and repeated relapses post denervation, he thought L5-S1 fusion may be a worthwhile consideration to treat mechanical lower back pain.
The Defendant’s medico-legal evidence
135 Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff in February 2014.
136 The plaintiff then described pain in the lumbar spine between the L2 and S1 level, which spread into each flank for 15 centimetres, and also into the left buttock.
137 Mr Battlay concluded the plaintiff had mechanical lower back pain due to an L5‑S1 disc derangement. He noted the plaintiff had resumed working on light duties with a 10-kilogram lifting limit, which was appropriate. He also noted the plaintiff was gradually self managing his condition.
138 Mr Battlay diagnosed L5-S1 disc derangement without radiculopathy. He thought the treatment suggested by Dr Sullivan was appropriate. He noted the plaintiff was then attempting to resume his pre-injury duties as a store person, and other management was not necessary.
139 Professor Vernon Marshall, general surgeon, examined the plaintiff on October 2014.
140 The plaintiff then told Professor Marshall that his pain had very much improved, there was no radiation to the legs and he was able to do most activities.
141 On examination, Professor Marshall found no spinal deformity, and noted the plaintiff had a flexible range of movement in the thoracolumbar spine. There was no neurological abnormality, sensory loss, or muscle wasting.
142 The plaintiff was then working part time as an intern with an architectural firm two days a week, about sixteen hours a week, and was also studying at Victoria University, with about seven contact hours week, and a total of thirty hours of study a week.
143 Professor Marshall diagnosed a lower back strain soft tissue work strain injury, now substantially resolved. He thought the plaintiff could then return to pre-injury duties and hours.
144 Associate Professor Graeme Brazenor, neurosurgeon, examined the plaintiff on 24 March 2017.
145 The plaintiff then complained of mild chronic lower back pain, and that long drives in the car were difficult. He said walking was good for him, and he did it regularly, and it helped his back. Resting in bed was usually okay. He took the occasional Nurofen, not every day.
146 Mr Brazenor noted that, on examination, there was a good lumbar lordosis and no palpable spasm. There was normal power in the lower limbs and no attempt to feign weaknesses. Reflexes were symmetrical and normal and there was no sensory deficit.
147 Mr Brazenor noted the plaintiff took five weeks off work because of the incident and injury, which he considered to be a minimum period off work for a warehouse worker who had just incurred a lumbar disc injury. He thought the plaintiff had managed his lower back, and his employment, in an exemplary fashion since the incident.
148 Mr Brazenor noted that the plaintiff had received quite a lot of what he considered bad advice in the management of his lower back condition. For instance, no one had told him the most important thing, which was to absolutely and forever minimise bending and twisting at the waist. Mr Brazenor gave the plaintiff three rules for living for anyone with a lumbar disc injury, no matter whether symptomatic or not. He also recommended the plaintiff attend a two-hour lecture, teaching him how to live by the “three rules”.
149 Mr Brazenor advised the plaintiff to eschew all forms of manual therapy on his spine and made the point that he thought radiofrequency denervation of the facet joints was contraindicated in people with pain from this type of injury, insofar as the body’s way of sounding the alarm and limiting what the patient does in order to facilitate natural healing.
150 Mr Brazenor advised the plaintiff the pain message is blunted by radiofrequency denervation or local injection, meaning that he may remain blissfully unaware of the need for him to avoid bending and twisting at the waist, and heavy lifting, and thus may, by doing so, undo the healing which his spine had begun the night before. He thought that was what the plaintiff was doing every day he worked as a baker.
151 Mr Brazenor diagnosed an L5-S1 disc protrusion in the course of the plaintiff’s employment. He thought the MRI showed a moderate protrusion at that level.
152 Mr Brazenor noted the plaintiff had continually found employment for himself ever since he left the employer. He did not think the plaintiff’s current role as a baker was suitable employment, insofar as there is a lot of bending at the waist. If the plaintiff could lift the 5-kilogram sacks of ingredients from waist height, not having to bend at the waist, then he could probably go on doing it without fear of injuring his back. However, if he kept on bending at the waist repetitively at work, he would awaken the injury and possibly even earn himself surgery.
153 Mr Brazenor thought the best job the plaintiff could do would be to pursue his dream of doing building design. He noted the plaintiff reported, however, at present, that is limited by his sitting intolerances.
154 Mr Brazenor stressed to the plaintiff if he stopped the recurrent bending and lifting at work, and the other back exercises and measures prescribed by his physiotherapist, and merely walked and followed the “three rules”, there was at least an 80 per cent chance of him becoming, and remaining, pain free in the long term, with consequent resumption of unlimited sitting tolerances, provided he sits in a good chair at the right angle.
155 The MRI scan of July 2013 did not cause Mr Brazenor to change his conclusions. On balance, he thought the plaintiff sustained an injury in the incident. He considered the plaintiff was very likely left with some mild chronic lower back pain, worsened by slumping in soft chairs, or ill advised bending and twisting at the waist, either at home or work.
156 The main “treatment” measure recommended was the plaintiff, as soon as possible, and forever, cease bending at the waist, and that he must only continue as a baker if he does not have to lift things from above or two levels below his waist. He would find that eventually (that he did not have to do those bends) very difficult to credit.
157 If the plaintiff did not cease bending at his waist in that job, he may, indeed, re rupture his L5-S1 disc, and that would, in Mr Brazenor’s view, merely be an exacerbation of the incident injury.
Overview
158 There is no dispute the plaintiff suffered a compensable injury – a lumbar prolapse at L5-S1, the effects of which are ongoing. There is obviously organic pathology in the lumbar spine which explains his symptoms.[42]
[42]T55
159 As counsel for the defendant indicated at the commencement of the hearing, the issue in this case is one of range.[43] In this regard, reliance was placed on the comments of the Court of Appeal in Sabo v George Weston Foods[44] that when considering whether an impairment is at least very considerable, weight must be given to the adverb “very”.
[43]T11
[44][2009] VSCA 242 at paragraph [73]
160 As Callaway JA said in Transport Accident Commission & O’Dea v Dennis:[45]
“Many impairments are considerable in the sense that they are important or substantial without being considerable.”
[45][1998] 1 VR 702 at 703
Credit
161 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[46]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[46](2010) 31 VR 1 at paragraph [12]
162 I found the plaintiff to be a very credible witness who did not overstate his symptoms, and made frank concessions where appropriate. As counsel for the plaintiff submitted, the plaintiff gave answers that did not seek to “gild the lily” at all, freely admitting his limited involvement in snowboarding and rock climbing before the incident.[47]
[47]T65
163 While there has been surveillance undertaken, there was no film shown, or any other evidence which challenged the plaintiff’s complaints of pain and restrictions in any significant way.
164 Further, all medical practitioners considered the plaintiff to be a genuine individual, with Mr Brazenor commenting that the manner in which the plaintiff had dealt with his injury was “exemplary”.[48]
[48]T60
165 I accept the submission on the plaintiff’s behalf that he is somewhat of a stoic, given his continuing to work, albeit with difficulty, since the incident, undertaking all forms of medical treatment that has been suggested without resolution of his symptoms.[49]
[49]T55
166 In this regard, reliance was placed on the comments of the Court of Appeal in Dwyer v Calco Timbers Pty Ltd (No 2)[50] and Haden Engineering Pty Ltd v McKinnon,[51] that a stoic plaintiff should not be disadvantaged when considering the seriousness of the relevant impairment.
[50](2008) 234 CLR 124
[51]Supra
167 Further, the plaintiff’s stoicism was confirmed in his wife’s affidavit,[52] where she describes his injury-related restrictions and the activities he now avoids because of his back pain.[53]
[52]T55
[53]T56
Pain
168 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[54]
[54]Supra
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.”
169 The plaintiff’s complaints of pain and restriction were virtually unchallenged
170 Whilst on examination the plaintiff has at times been found to have a reasonable range of lumbar movement and no neurological abnormalities,[55] no medical examiner has questioned the genuineness of his ongoing complaints of low back pain, and limited postural tolerances.
[55]T51
171 Although improvement has been noted at various times by examiners, particularly in 2014 by Mr King, physiotherapist, medico-legal examiner, Professor Marshall, and the plaintiff’s general practitioner, Dr Moore, the plaintiff continues to require physiotherapy, and a further denervation is planned when the effects of that procedure carried out earlier in the year wear off.
172 As there was no meaningful attack on the plaintiff’s credit, or that of his wife, I accept that since the incident, the plaintiff has continued to suffer constant, albeit variable pain, radiating down his buttocks and lower back as he deposed and told various examiners.[56]
[56]T57
Treatment
173 Counsel for the defendant submitted the plaintiff was someone who certainly responded to treatment,[57] noting the physiotherapists involved in his treatment in the past had reported significant improvement in the plaintiff’s pain levels and greater functional work and social capacity.[58]
[57]T49
[58]T49
174 It was also submitted that there were two significant omissions in the medical evidence relied on by the plaintiff as to his current lumbar condition, with no report from his new general practitioner or the current physiotherapist, Dr Moar.[59]
[59]T49
175 Further, it was only in his second supplementary report that Dr Ng made any suggestion of the need for surgery in the future.[60] In any event, it was submitted his view in this regard was this may occur, not that it was likely.[61]
[60]T52
[61]T53
176 It is clear that despite improvements being noted in his condition at various times, the plaintiff continues to require active treatment for his spinal condition. To date, he has undergone a range of treatments, including blocks, injections and radiofrequency denervation procedures. Further denervation procedures are anticipated by Dr Sullivan when the effects of the most recent procedure wear off, as he reported very recently.
177 Having initially been prescribed Lyrica and other significant painkillers, the plaintiff now takes over-the-counter painkilling medication such as Nurofen[62] on an infrequent basis because of complications he has from a bowel condition and on the advice of his gastroenterologist. To deal with the pain, he avoids activities that worsen his pain and, being a stoic, he puts up with it as best he can.[63]
[62]T59
[63]T57
178 In addition to invasive treatment, the plaintiff has maintained very active physical therapy and closely followed his physiotherapist’s advice, tending towards self-management rather than ongoing hands-on treatment.[64]
[64]T58
179 I accept that because of his back pain, the plaintiff is unable to maintain static postures, whether sitting or standing, as evidenced by his need to sit and stand in the witness box. He has made complaints to this effect to a number of medical practitioners, none of whom query the genuineness thereof.
Work
180 Counsel for the defendant submitted that any employment consequences of the plaintiff’s back condition were not “serious” as he has been able to return to full-time work after the incident.[65]
[65]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
181 It was noted the plaintiff only had two days off work and got back to work, and was then on light duties, which were still relatively physical and not in the office.[66] He then went straight from manual work with the employer to manual work in the bakery. The plaintiff left the employer because he could not work out his hours to do the internship at the same time.
[66]T42
182 Counsel for the defendant pointed out that the plaintiff has not had a lot of time off, or sick leave, in relation while working for the employer or later working in various bakeries.[67] Further, the plaintiff is not a person who has had to consume large amounts of medication to stay at work. While he has problems tolerating medication, he has been able to keep working steadily for long hours without very much medication at all.[68]
[67]T42
[68]T43
183 As well as being able to work, it was submitted the plaintiff has been able to do a number of things at the one time, participating with success in the course and also working in the internship at the same time.[69]
[69]T43
184 It was submitted that it could not be accepted that the plaintiff had lost a career in building and design as a result of his back injury, as he had only had vague discussions about non static work in those fields, and admitted he could still do site work.[70] The plaintiff had not really described any steps he had taken to try and make that career aspiration happen. If he had made enquiries and found there was nothing in the building and design industry he could do, it was conceded that would be a different story.[71] Having not made those enquiries, it was submitted there was nothing to indicate that the plaintiff definitely could not do any work in the field in which he had trained.[72]
[70]T43
[71]T44
[72]T45
185 In any event, Mr Brazenor considered the plaintiff could return to design work if he followed the “three rules”[73] with the 80 per cent chance of getting back to activities that involved prolonged sitting.[74]
[73]T45
[74]T55
186 Further, it was submitted the plaintiff ultimately conceded he got enjoyment from the bakery work and he has been able to work relatively long hours at it.[75]
[75]T45
187 In my view however, the plaintiff’s back condition has significantly impacted on his employment capacity and work future in a number of ways.
188 I accept, had he not been injured, and then experienced ongoing significant problems with sustained posture, the plaintiff would have continued to work in his chosen field of design, a role for which he had successfully undertaken many years of part-time study and worked in two internships.[76]
[76]Ellis Management and Services Pty Ltd v Taylor (2013) VSCA 326
189 In my view, the plaintiff cannot be criticised for not making enquiries as to whether he could get a job in the design field, as he knows what is involved because of his experience during the internship and with the course generally.[77]
[77]T61
190 The plaintiff tried the internship role but even using a stand-up desk, he knew the job was not suitable for him, and he had to walk away from that career, having studied and worked over seven or eight years.[78] He has now found a job where he can move around freely and which suits his limitations.[79] He continues in that role despite Mr Brazenor’s view that the work is clearly not suitable for him.[80]
[78]T62
[79]T62
[80]T62
191 Further, as a result of his back injury, the consensus of medical opinion is that the plaintiff no longer has a capacity for unrestricted physical work. Significantly, the plaintiff was never able to return to unrestricted pre-injury duties with the employer after the incident.
192 As counsel for the plaintiff submitted, whilst the plaintiff gets a sense of satisfaction at work from making something, it is not pleasure in the sense of career gratification, and the plaintiff would not do this work if he was not getting paid for it.[81] He is frustrated by that situation, as his wife confirmed, and also by his other restrictions generally.[82]
[81]T63
[82]T64
Other activities
193 Counsel for the defendant submitted the plaintiff still lives a relatively full life with a full level of activity and that simply did not get him over the threshold, with seriousness being determined by what had been retained as well as what had been lost.[83]
[83]Dwyer v Calco Timbers Pty Ltd(No 2) (supra)
194 It was submitted the plaintiff could still do housework and gardening, but did them in a modified way. He attends concerts, goes swimming and attends the gym. He still travels and has picked up a new hobby of scuba diving.[84] While he had to stop whilst driving on a recent trip to New South Wales, it was convenient for him to do so to visit friends along the way.[85]
[84]T47
[85]T48
195 Further, the plaintiff had not participated in snowboarding and rock climbing with any frequency before the incident and, in any event, he has not tried to do those activities since.[86]
[86]T48
196 It was conceded the plaintiff may well have the level of pain complained of and he had not been attacked in that regard, but it did not stop him from doing all the activities that had been described and ultimately, any impairment did not meet the high threshold of seriousness.[87]
[87]T50
197 Further, a number of the factors in Haden Engineering Pty Ltd v McKinnon[88] such as difficulties with sleep were not present in the current case.[89]
[88]Supra
[89]T46
198 I am satisfied however that the plaintiff’s back condition has affected his ability to participate in household duties and gardening duties, as his wife confirmed in her affidavit and a number of jobs remain uncompleted.[90]
[90]T66
199 I accept that the plaintiff’s back condition has impacted on his ability to undertake physical activities, in particular, bike riding, an activity he previously enjoyed and used as a mode of transportation. Post injury, he has tried riding, as it is a low impact activity, but had difficulties, therefore he had not gone back to any more significant physical activities such as rock climbing and snowboarding, which he enjoyed on an irregular basis pre injury.[91]
[91]T65
200 Before the incident, travel was a very big part of the plaintiff’s life and there are now significant restrictions in that regard, with days of crippling pain after an international plane trip and difficulties with interstate car travel.[92] While the plaintiff has retained his interest in music, it is rather limited, playing the guitar and attending local music festivals.[93]
[92]T66
[93]T64
Permanency
201 Counsel for the defendant submitted there is potential for improvement in the plaintiff’s condition and the issue of permanency is therefore relevant.[94]
[94]T10
202 In my view, it is unlikely that nearly five years post injury, after all the procedures and rigorous physical therapy, that the plaintiff is going to improve.[95] While there was success with the most recent procedure, flare ups have by no means gone away.[96] As Dr Sullivan confirmed, the denervation type procedures are going to continue.[97]
[95]T56
[96]T57
[97]T58
203 I accept that the plaintiff has rigorously followed medical advice and continues to do home exercises, as instructed. Despite these efforts, during cross-examination in the course of an hour, the plaintiff could not maintain a seated position because of back pain.[98]
[98]T56
204 At the relatively young age of forty-two, for the foreseeable future, the plaintiff is faced with a continuation of painful lumbar symptoms and of consequential inhibitions upon his enjoyment of life.
205 As Ashley JA and Beach AJA noted in Stijepic v One Force Group Aust Pty Ltd,[99] when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. All things being equal, impairment consequences which a man or woman would have to put up with for forty 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.
[99][2009] VSCA 181 at paragraph [43]
206 Taking into account all of the evidence, I am satisfied the plaintiff has a serious injury in relation to his lumbar impairment. Accordingly, I grant leave to bring proceedings for pain and suffering.
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