McComiskie, Dale Charles v Red Gem Growers and Packers
[2010] VCC 105
•4 March 2010
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
| AT MELBOURNE CIVIL DIVISION SERIOUS INJURY Case No. CI-09-03850 | |
| DALE CHARLES McCOMISKIE | Plaintiff |
| v | |
| RED GEM GROWERS & PACKERS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
| --- | |
| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 & 17 February 2010 |
| DATE OF JUDGMENT: | 4 March 2010 |
| CASE MAY BE CITED AS: | McComiskie, Dale Charles v Red Gem Growers & Packers P/L |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0105 |
| REASONS FOR JUDGMENT | |
| --- |
Catchwords: Accident compensation – Serious injury application under s.134AB(16)(b) of the Accident Compensation Act 1985 – Serious injury claimed in relation to loss of back function – certificate granted for both pain and suffering and loss of earning consequences.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. McCredie with | Ryan Carlisle Thomas |
| Mr B. Hutchinson | ||
| For the Defendant | Ms M. Britbart | Wisewould Mahony Lawyers |
| HER HONOUR: |
1 Dale Charles McComiskie was employed as a produce packer with Red Gem Growers & Packers Pty Ltd (Red Gem). Red Gem is located in Nar Nar Goon 61 kms south east of Melbourne. The company grows and supplies potatoes and onions to the retail and wholesale trade.
2 Mr McComiskie is aged 38 and was born on 21 February 1972. He lives in Pakenham 60kms east of Melbourne. He is a man who has had very little by way of formal education. He completed the equivalent of Year 8 at a technical college. He had literacy difficulties at school. He entered the workforce aged 15 and all his pre-injury work experience is in semi-skilled labouring type occupations involving heavy manual work. He has worked in the production of metal farm gates, general hand work at meat works including packing and meat process work and farm work involving the picking and packing of fruit and vegetables.
3 He commenced with Red Gem on 4 December 1999 and continued until submitting his resignation on 5 December 2002. His employment with Red Gem was casual and he regularly worked 38 hour weeks. His duties included stacking pallets with bags of potatoes for distribution purposes.[1]
[1] M Leitch, Vocational Assessment PCB 80
4 Over the months leading up to 31 October 2002 he experienced some minor back pain. In the course of performing his labouring duties on that date he developed more significant pain in his back whilst lifting 20 kilogram bags of potatoes. He reported the incident and consulted Dr Wong at the Station Street Clinic Pakenham and was referred for physiotherapy to Mr Ross Edwards.[2]
[2] Paragraph 6, Affidavit of Mr McComiskie, sworn 29 October 2008, PCB 23 &24
5 The Employer Claim Report notes he missed a few hours off work on that day and he returned to work.[3] The plaintiff’s uncontested evidence is that he continued working doing modified light duties operating machines to pack potatoes. He was not required to undertake any lifting or bending.
[3] DCB 78
6 He resigned from Red Gem on 5 December 2002 to work with Mark Fi Gates Pty Ltd. The plaintiff’s evidence was that he attended at that workplace on 6 December 2002. He did not consider the job to be suitable so he did not pursue that position. He returned to Red Gem on 9 November 2002 with the request that he be reinstated to the modified duties position. His request was refused and he did not resume employment with Red Gem at any stage thereafter.
7 A Workcover claim form was submitted for the low back condition and the claim was accepted. Currently he is not working and is in receipt of Workcover benefits in respect to the low back condition.
8 Mr McComiskie makes application under s.134AB(16)(b) of the Accident Compensation Act (the Act) for leave to issue proceedings for the recovery of damages in respect of injury suffered throughout the course of his employment with Red Gem and, in particular, on or about 31 October 2002.
9 The claimed injury is an injury to the lumbar spine including musculoskeletal intervertebral disc damage at L4/5 and L5/S1 with compromise to the existing nerve root and referred pain to both legs.
10 The plaintiff relies upon paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act – namely “permanent serious impairment or loss of a body function”, being the low back.
11 Leave is sought in respect of both pain and suffering and loss of earning capacity consequences.
12 In this application I heard viva voce evidence from the plaintiff and his general practitioner, Dr Graham Watt. No other evidence was called and the parties relied upon the reports tendered at the end of the hearing. The evidence adduced on the hearing of the application is contained within the attached schedule I have applied the usual practice whereby it is accepted that the documents set out in the respective Court Books upon which the parties relied were treated as being in evidence notwithstanding they were not formally tendered until the close of the proceedings.
13 Mr McComiskie adopted two affidavits sworn on 29 October 2008 and 1 February 2010 that set out the plaintiff’s background, the circumstances of the injury and its consequences subject to minor amendments. Paragraph 5 of the second affidavit was amended to record that he takes two Panedeine Forte tablets two to three times per day with up to eight per day. Paragraph 8 of the second affidavit was amended to include reference to the plaintiff attempting a course by correspondence namely, Certificate III Photography. His ambition was to achieve paid employment as a photographer or in the industry as an assistant. He suffered anxiety and slight depression and did not complete that course.
14 The Defendant’s Court Book index refers to evidence of surveillance of the applicant. No surveillance film video was shown to the Court.
15 The relevant principles for determining whether an injury is a serious injury or not are set out in s.134AB of the Act and various authorities have considered that section. [4] I do not propose to restate the principles applicable as they are well known.
[4] For example, Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Victoria v Rattray [2006] VSCA 145; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; Church v Echuca Regional Health [2008] VSCA 153; Jayatilake v Toyota Motor Corporation Australia Limited [2008] VSCA 167; Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 and Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170.
The parties submissions
16 Ms Britbart, on behalf of the defendant, made a number of concessions. It is not in dispute that the plaintiff suffered an injury in compensable circumstances throughout employment and in particular, on 31 October 2002.
17 What is in dispute is the nature of the injury, that is, whether it was discal or muscular in nature. Further, she submitted that “disentanglement” is a very real issue for the plaintiff.
18 Ms Britbart submitted that this is not a case where the consequences of the underlying organic injury of itself can be shown to satisfy the test. She relied on the findings of some of the medical examiners who noted that many of the plaintiff’s symptoms are non anatomical in their explanation: numbness in both legs, pins and needles in both legs, pain in the left leg all of which cannot be explained by reference to the lumbo sacral pathology seen in the various radiology.
19 Ms Britbart agreed that the weight of the evidence supports a finding that Mr McComiskie can no longer perform his pre-injury duties and is unfit to return to heavy work. However, she submitted that the plaintiff has a residual capacity for light work and that he has not discharged the onus pursuant to s.134AB(38)(e), (f) and (g) of the Act.
20 Mr McCredie submitted that there is a clear physical basis for the plaintiff’s injury and that there is no merit in the defence submission that this case concerns a “disentanglement” problem. He urged the Court to make a finding that the plaintiff has discharged his onus with respect to serious injury as defined for both pain and suffering and loss of earning capacity consequences in relation to the low back injury.
The plaintiff’s credibility
21 Ms Britbart challenged the reliability of the plaintiff’s evidence. She submitted that the plaintiff was not completely forthright when being cross-examined and attempted to overstate the effects of the Red Gem injury. In particular, she was critical of the plaintiff’s answers concerning the effects of a prior back injury and also his unsatisfactory explanation about why he did not attempt to work with Mark Fi Gates.
22 During the hearing Ms Britbart conceded that the defence were not saying that this is a case where the plaintiff had a pre-existing impairment of the low back requiring the Court to determine the effects of an aggravation. Rather the plaintiff’s evidence relating to an earlier back injury was used to test his credibility.
23 The importance of credibility findings have been consistently emphasised in these types of serious injuries applications by the Court of Appeal on a number of occasions.
24 In Palmer Tube Mills (Aust.) Pty. Ltd. v. Semi [1998] 4 V.R. 439, particularly at p.448, Brooking J, with whom the other members of the Court agreed, said:
“In ‘serious injury’ applications, the credit of the applicant is of great importance. For so often the opinions of medical witnesses or other experts depend upon what they have been told by the applicant and upon the applicant’s behaviour or performance on examination or upon testing. The bona fides are best explored in cross-examination.”
25 Findings on credibility alone are, however, not determinative of the outcome of the application. The reliability of Mr McComiskie’s evidence must be judged against the totality of all of the evidence.
26 Mr McComiskie was a straightforward witness who gave his evidence without embellishment. He did his best to answer questions accurately and honestly. I observed the plaintiff, whilst giving evidence, to lose concentration and it was obvious that he was in a great deal of pain. On the first day of the hearing prior to lunch the proceedings were adjourned to enable him to take some pain relief medication.
27 There was evidence that the plaintiff suffered a back strain injury in 1996 whilst lifting during his employment with Essex Oaks Pty Ltd. He worked as a labourer. His job involved stacking boxes in a meat chiller and loading trucks. He was treated for muscular strain following a lifting incident whilst at work. That settled with conservative management.
28 Mr McComiskie was frank and admitted that he had a previous history of back pain whilst working for Essex Oaks.[5] He agreed he had some time off in late 1996. He stopped working with Essex Oaks. He worked in an orchard and had some time off in 1997 when he aggravated his back whilst was picking apples.[6]
[5] T21, L23-31[6] T22, L4-929 The defendant tendered a report from Mr George Owen, orthopaedic surgeon dated 22 July 1997. It details his opinion and findings following his examination of the plaintiff on that date. Mr McComiskie was not working at the time of the examination. He recorded that he had left Essex Oaks because of back problems.
30 Dr David Vivian, musculoskeletal physician, saw the plaintiff on 27 October 1997. Mr McComiskie was complaining of left sided thoracolumbar and left upper buttock pain, as well as lumbosacral ache aggravated by slight flexion. He was unemployed. His opinion was that the plaintiff had myofacial type pain syndrome following the lifting incident on 15 November 1996.
31 The history he recorded was that the plaintiff’s condition improved with physiotherapy. He was able to return to normal duties. He eventually left that job (Essex Oaks). He then worked loading semi trailers. That work involved heavy lifting. He left that job because of pain. He tried other work including work in an apple orchard. The back pain became worse. He tried work in a boning room but left that because he was sore the following day. He tried work in a knackery slaughtering for 2 weeks prior to the examination but this aggravated his pain. Dr Vivian anticipated improvement with further treatment and suggested a review in 12 months time. [7]
[7] DCB 8-1132 Mr McComiskie’s evidence was that in 1997 he left Essex Oaks because of a pay dispute and not due to back pain. Initially, he did not recall having problems with his back again apart from the time when he was working at the apple orchard. He said that he left various jobs around that time due to the work drying up or that he wanted to move on to try and better himself. In further cross-examination, he conceded that he left a job at a knackery after a couple of months because of the bending he could not do that job.[8]
[8] T25, L25-31; T26, L1-9
33 When Dr Vivien’s more detailed history was put concerning various attempts at work that were thwarted due to back pain he was able to recollect that his reasons for leaving those various jobs was due to muscle soreness.
34 It is unsurprising that the plaintiff was not able to refer in any great detail to various jobs he held for short duration in the years following the back injury at Essex Oaks without prompting. They were of short duration. He did not have active medical management apart from some attendances on his general practitioner and his physiotherapist. I make no adverse finding concerning his evidence having regard to his concessions.
35 Mr McComiskie’s evidence concerning Mark Fi Gates was that he considered the position because potentially it was lighter work. I accept his evidence that it was not until he had the opportunity to closely observe the tasks he would be required to perform and the physical layout of the factory that he realised the job was beyond his physical limitations. His uncontested evidence was that he was asked to assist to manage the factory. The work involved some forklift driving to move steel, paper work and walking up and down a flight of stairs to access the office. When he told the proprietor of the business about his injury he agreed that he would not be able to perform the tasks required.[9]
[9] T49, L18-25
36 Further the Court cannot rely on what is recorded in the notes of the Station Street clinic on 6 November 2002 to make a finding that discredits the plaintiff. The doctor’s note records, “ongoing back pain, seeing physiotherapist, some improvement, on new job, less lifting and activity.” The author of the note was not called. It is likely that the note was not a reference to the Mark Fi Gates job but rather the modified duties at Red Gem.
37 I make no adverse findings in respect of Mr McComiskie’s credibility.
38 I accept the plaintiff’s evidence concerning the low back injury, the nature, extent and course of his low back symptoms and the manner in which the injury interferes with his activities of daily living.
The medical evidence – treatment
39 Mr McComiskie was initially treated by Dr Wong who found some limitation of back movement but no neurological signs. Plain x-rays were reported as normal. Dr Wong diagnosed muscular strain and treated the plaintiff with anti- inflammatories, rest and physiotherapy. He certified he was fit for modified work duties.
40 Mr McComiskie’s back pain failed to improve. Dr Wong requested a CT scan. The report of the lumbosacral spine dated 7 November 2002 reads:
“Axial scans were performed from L1/2 to S1.
L1/2 & L2/3 : no relevant finding is mild thecal impression.
L4/5: a diffuse posterior disc bulge is seen. There is mild to moderate thecal impression. Ligamentum flavum thickening is also noted at this level. L4/S1 no relevant finding.
Signed: Dr Mark Cooper, radiologist.”[10]
[10] PCB 72
41 The plaintiff was referred to Mr Drnda, neurosurgeon, for assessment. He reviewed him on 23 December 2002. He noted the history of back pain associated with lifting 20 kilogram bags with associated severe back pain which soon spread into his left leg.
42 He found on examination there was no limitation in movements in the lower back. Straight leg raising test was negative bilaterally. He had full muscle strength and reflexes were normal. There were no sensoric changes.
43 He confirmed that the report of the plain lumbar spine x-rays revealed normal findings and the CT scan report shows mild disc bulging with mild ligamentous hypertrophy at L3/L4 level and mild to moderate disc bulging at L4/L5.
44 Mr Drnda concluded that clinically and radiologically there were no signs of neural compression and that the plaintiff’s pain was mainly muscular. He did not consider there was any indication for neurosurgical treatment. He advised the plaintiff to continue conservative management with physiotherapy and regular exercise and to avoid strenuous activities for his low back.
45 Dr Graham Watt has been responsible for his ongoing treatment since February 2003. He regularly reviews Mr McComiskie. His written reports confirm that the plaintiff’s medical condition remains essentially unchanged. Mr McComiskie continues to complain of ongoing low back pain which radiates into the left leg from time to time. Management is by way of conservative treatment. He sees him once per month and prescribes Panedeine Forte for pain relief and Temazapan for sleeping when needed. [11]
[11] PCB 33-34,35,35A
46 At all times Dr Watt has certified that the plaintiff is unfit for his pre-injury duties and not fit for any suitable employment. In a letter dated 16 April 2009 he states that he remains unfit for any work appropriate to his level of training.
47 Mr Ross Edwards provides regular physiotherapy. He has treated Mr McComiskie from November 2002 and continuing.[12]
[12] DCB 20
48 Following a second referral, Mr Drnda saw the plaintiff again on 17 March 2003. Despite three months of conservative treatment, his condition was not better and, on the contrary, slightly worse. Neurologically, apart from tightness in the hamstrings on the left, he found the plaintiff was intact. He referred the plaintiff for an MRI scan of the lumbar spine.
49 The MRI report of 16 May 2003 notes these findings:
“Alignment of the spine is normal. There is normal vertebral body height and
narrow signal at all levels.
At L4/5 there is small, broad based posterior disc bulge and annular fissure. There is mild ligamentum flavum hypertrophy bilaterally. There is bilateral mild narrowing of the subarticular recesses. The L5 nerves are contacted but not compressed in the subarticular recesses. There is no central canal or foraminal narrowing.
At L5/S1 there is a mild broad based posterior disc bulge and small annular fissure. The central canal subarticular lateral recesses and neural foramina appear normal. The remainder of the intervertebral discs appear normal and at other levels there is no canal or foraminal narrowing. The conus is normal in position and appearance and the nerve roots of the cauda equina are normally distributed within the thecal sac. The paravertebral soft tissues within the field of view included on the images appear normal.
Conclusion: A mild posterior broad based disc bulge and annular fissure at L4/5 and mild ligamentum flavum hypertrophy mildly narrows both subarticular recesses where the L5 nerves are contacted. There is no central canal or foraminal narrowing. At L5/S1 there was a small posterior broad based disc bulge and annular fissure. Central canal, subarticular and lateral recesses and neural foramina appear normal.”[13]
[13] DCB 65
50 Mr Drnda reviewed the plaintiff on 23 June 2003 following the MRI scan investigations. Mr Drnda confirmed he suffered injury at work and has disc protrusions at L4/L5 and L5/S1.[14] He considered employment was a significant contributing factor given the nature of the work performed and the particular tasks. He certified the plaintiff incapable of performing his pre-injury work and at that time did not consider, with his education, skills and work experience, that he was capable of suitable employment. He recommended re-training. He confirmed that the prognosis was difficult to predict and pain was chronic and difficult to treat.[15] He advised that there was no indication for operative treatment and recommended pain management.
[14] PCB 38
[15] PCB 38
51 In March 2004, Mr McComiskie was referred to Professor David Reutens for neurological assessment because of complaints of pain radiating across the buttocks and down the legs persisting since the injury. He did not find any objective evidence of any significant peripheral neuropathy. He considered that the overall problem to be musculoskeletal in nature and requested that the plaintiff’s rehabilitation be expedited.[16]
[16] DCB 20
52 The plaintiff has not had any other specialist management or treatment. He completed a rehabilitation course at Cedar Court in March – April 2004 without any ongoing improvement in his condition.
53 The plaintiff’s general practitioner, Dr Watt, was the only medical witness to give evidence. He is an experienced general practitioner who has practiced at the Station Street Clinic for 22 years.
54 He was cross examined at length in relation to the plaintiff’s injury and, in particular, in respect to his attendances at the clinic from the time of injury until he took over management. Interestingly, he was not asked specifically to comment on whether the injury was a chronic pain syndrome, rather that pain related to specific local organic pathology.
55 The evidence shows that Mr McComiskie was certified fit for alternative duties from 31 October 2002 until 6 November 2002. He had to rest his back – no heavy lifting, straining or bending. That situation changed on 15 January 2003 when a different doctor, Dr McCowan, certified him unfit for all work. [17] Whilst there was no precise indication in the clinical notes as to why that change in certification was made, Dr Watt’s evidence was that it was mentioned in the clinical notes that there was a notation of pain extending down the left leg with tingling.[18]
[17] Bundle of Workcover certificates of capacity various dates, DCB 92-95
[18] T83, L 4-6
56 His evidence was that he presumed that the change in classification from modified full-time duties to not being able to work at all was because of the left leg pain and tingling.[19]
[19] T 83 lines 16-17
57 Dr Watt was pressed in cross-examination concerning Mr McComiskie’s ability to undertake work. He expressed the view that any sort of manual work would not be in his best interests.[20]
[20] T 86 lines 19-20
58 It was put to him that the plaintiff could undertake work as a product examiner at a factory. He agreed that the plaintiff could do that sort of work provided he does not have to do any heavy lifting or bending.
59 When re-examined, concerning the nature of the injury, he confirmed his expressed opinion in retrospect, was that Mr McComiskie’s condition was probably something more than muscular strain. Having regard to the radiology that demonstrates two damaged discs in the lumbar spine, he presumes that some pain is coming from those damaged discs and perhaps some irritation or inflammation of the nerve roots. He noted that the scan failed to display actual compression of the nerve root but said that does not exclude an irritation of the nerve root that could be causing intermittent pain.[21]
[21] T 93 lines 3-11
60 Further, he considered in relation to the L4/5 disc with the radiological finding of mild ligamentum flavum hypertrophy, with mild narrowing of sub-articular recesses where the L5 nerve roots were contacted but not compressed, that would quite probably have some causal factor upon the pain going down the left leg.[22]
[22] T 93 lines 15-23
61 In relation to capacity for work and the sort of restrictions he would impose, he confirmed in re-examination, no heavy lifting (a maximum of five kilograms), no repetitive lifting, no extensive period of sitting for extended periods of time (up to 30 minutes), provision to be able to sit and rest as and when required and the ability to change position not when the job required him to change position but when he needed to.
62 Dr Watt does not consider the plaintiff would be able to work for up to eight hours a day, five days a week. He said that he is really not in a position to articulate what sort of job he could do realistically.[23]
[23] T 94 lines 11-31 and T 95 pages 1-23
63 I accept the expressed opinion of Dr Watt. He has had the advantage of consistently reviewing the plaintiff’s condition over many years.
64 Further I have had regard to the evidence of Mr Edwards, the treating physiotherapist, who also has had the opportunity of reviewing the plaintiff in respect to this injury since 7 November 2002. He sets out the treatment and history in two reports, dated 19 March 2009[24] and 10 November 2009.[25] He continues to review the plaintiff.
[24] PCB 39-41
[25] PCB 32
65 Mr Edward records at the first attendance on 7 November 2002 the plaintiff had been lifting at work during the previous week, had developed pain in the left buttock and lower back with associated tightness in the left leg. At that stage there was no tingling in the left leg and he continued to work on light duties. He treated him over the course of the following months.
66 In December 2002 he noted Mr McComiskie had developed intermittent left leg pain and tingling due, in his opinion, to the disc bulge touching the spinal theca, treated with cortisone and additional physiotherapy.[26] That evidence supports the earlier expressed opinion of Dr Watt concerning why there was a change in Mr McComiskie’s certification in January 2003.
[26] PCB 39
67 Mr Edwards documents regular attendances for treatment throughout 2003 and 2004 without any significant long-term improvement. He noted that he undertook Cedar Court rehabilitation program in March/April 2004 and a follow-up gym program. Treatment frequency was reduced in 2004 and he was encouraged to continue with home exercise and activity modification. By July 2004 the plaintiff was unable to tolerate walking on a treadmill at the gym due to aggravation of his low back pain, tingling in both legs and occasional reduced control of bowel and bladder.
68 Mr McComiskie took a six month break from physiotherapy treatment between October 2004 and April 2005 to try and self-manage his chronic problem and he self-managed for a further six months after April 2005. In October 2005 he was still experiencing back and leg pain. He had intermittent treatment from that time until July 2006. He attempted to improve fitness and activity tolerance by undertaking another gym program in 2007. He did not attend for physiotherapy between March 2007 and April 2008. In April 2008 he had ceased continuing with the gym program. He complained of ongoing left sciatica, limited back movements of a half to two-thirds of normal range. He was seen on three occasions in April 2008. He attended for treatment on 10 occasions following April 2008. In March 2009 he reported increased back, leg and neck pain and there were spasms evident in his lumbar spine on forward bending to the knees.
69 On 28 October 2009 Mr Edwards recorded that back range of movement had not changed much from March 2009 and that Mr McComiskie’s work capability was still significantly restricted by reason of his back injury. He noted poor tolerance of prolonged standing, sitting, travelling which would limit his employment options to part-time work at most.[27]
[27] PCB 42
Medico legal evidence
70 Mr McComiskie has been reviewed by a number of medico-legal specialists.
71 I do not propose to refer in any detail to the findings of Dr Steven Stern and Dr Timothy Entwisle, both of whom examined Mr McComiskie for the purpose of carrying out a psychiatric assessment on behalf of the respondent. Whilst Dr Stern diagnosed the plaintiff as suffering from a mild Adjustment Disorder with anxiety, from a psychiatric aspect alone, he states that he is fit for all work.[28] Dr Entwisle did not consider he presented with any psychiatric condition. [29]
[28] DCB 39-43
[29] DCB 49-52
72 Dr David Vivian reviewed Mr McComiskie again on 30 October 1997 and 8 February 2010 at the request of the plaintiff’s solicitors. He diagnosed persistent back origin pain with pain centred over the sacral region and symptoms down the leg that sound like nerve root pain with a milder possibility of there being referred pain. He recorded that he has some neurological symptoms but no frank neurological signs.[30] That is consistent with Professor Reutens findings.
[30] PCB 45
73 He confirmed that the history and examination findings were different to what they were when he first reviewed him in respect of the earlier 1997 injury. He considers that he has either injured a new structure at work when he lifted in 2002, or aggravated a previous condition such as the disc injury. He states that the absence of disc prolapse on MRI does not mean that a disc has not been injured: it could have been, and nerves can be affected with disc injury, at times not by disc protrusion or extrusion, but by inflammation of the nerve root associated with exudate spilling from an injured intravertebral disc. He states those types of injuries cannot be demarcated on MRI.[31] Dr Vivian’s opinion is that the plaintiff is permanently unfit for manual work having regard to the long-term episodes of back pain and also the fact that he has not recovered. His opinion is that he has persistent back origin pain and the pain has components that sound as if they come from a particular structure such as the lumbar intravertebral disc (much more likely than the sacroiliac joint) and the leg pain has elements of referred pain from such a structure and there might be some nerve root irritation. [32] That is consistent with Dr Watt’s evidence.
[31] PCB 46
[32] PCB 46b
74 Mr Richard Bittar, consultant neurosurgeon, provided a report dated 20 March 2009. He examined the plaintiff at the request of the plaintiff’s solicitors. He diagnosed discogenic low back pain and sciatica secondary to the L4/5 plus or minus L5/S1 intravertebral disc prolapse.
75 In his opinion, Mr McComiskie is permanently incapacitated for his pre-injury duties as a result of his work-related low back injury. He considers that it is permanent inasmuch as it is likely to last for the foreseeable future. His capacity for suitable employment, taking into account his age, education, qualification and skills and training is negligible.[33]
[33] PCB 50
76 Mr Bittar reviewed the plaintiff on 18 December 2009. He confirmed on examination he walked with an antalgic gait. There was marked tenderness to palpation over the left paravertebral region. His range of lumbar flexion was severely restricted and extension was moderately restricted. Straight leg raising was restricted to 45 degrees on the left. Examination of his lower limbs revealed mild weakness of the left extensor hallucis longus (4.5 on 5) with normal tone reflexes and sensation. He confirmed his previous diagnosis and earlier expressed opinion.
77 Mr Roger Westh, orthopaedic surgeon, reviewed the plaintiff at the request of his solicitors on 3 March 2009 and 27 October 2009. He diagnosed low back strain and possibly a lumbar disc injury following the incident at work on 31 October 2002. He confirms imaging revealed evidence of disc degeneration at L4/5 and L5/S1 levels. He agrees the plaintiff is unable to return to pre- injury employment as it involved a lot of heavy lifting and bending and says he is permanently restricted to light work. On re-examination he confirmed his original findings and diagnosis of ongoing chronic discogenic mechanical low back pain with two level involvement.[34]
[34] PCB 63
78 In Mr Westh’s view the plaintiff has a poor long-term prognosis given his poor response to treatment. He will continue to experience mainly activity-related pain with restricted spinal mobility. He recommended ongoing conservative treatment.
79 Dr Robin Horsley, Occupational Health & Rehabilitation, examined the plaintiff on 14 January 2010 at the request of his solicitors. She diagnosed mechanical back pain. On history, the plaintiff has radicular left leg pain however there are minimum radicular signs. The radicular pain is suggestive of S1 involvement. He has reduction of muscle bulk in the left quadriceps area probably more related to his abnormal gait. He has evidence radiologically of discal disruptions with annular fissures at both L4/5 and L5/S1. [35]
[35] PCB 70
80 Dr Horsley believes the following work restrictions apply:
• avoidance of repetitive overreaching; • avoidance of repetitive pushing and pulling; • avoidance of repetitive bending and lifting; • avoidance of truncal rotation; • avoidance of lifting items greater than 10 to 12 kilograms on occasional basis; • avoidance of lifting items up to 8 to 10 kilograms on a repetitive basis; • good manual handling technique even when lifting light items; and • avoidance of work in awkward or confined spaces.[36] [36] PCB 70
81 She considers he has a capacity for work albeit part-time. She confirms the plaintiff does have discal disruptions which cause ongoing irritability in the lumbar spine and presents with symptoms consistent with radicular pain down the left leg although he has no significant radicular signs. His ongoing physical disability and impairment is likely to last until the foreseeable future.
82 On her assessment his capacity for work is likely to be part time 15 to 20 hours per week. She qualifies her expressed opinion by stating his employment opportunities are limited by his manual work experience, poor transferable skills, limited education, geographical location in Pakenham and functional tolerance.[37]
[37] PCB 70-71
83 The respondent tendered a report from Dr James Rowe, Specialist occupational Physician, dated 17 October 2003. He examined the plaintiff on 17 October 2003. His expressed opinion was that as a consequence of the work-related injury he suffered a muscular strain to the back from which he has recovered and he is fit for his pre-injury duty. [38]
[38] DCB 13-16
84 Having regard to the antiquity of his expressed opinion coupled with the fact that it is inconsistent with the weight of opinion expressed by doctors consulted by both the plaintiff’s solicitors and the defendant’s solicitors, I do not accept this expressed opinion.
85 Mr John O’Brien, Orthopaedic Surgeon, reviewed the plaintiff on 5 February 2004, 29 June 2004, 17 January 2007 and 26 February 2008.
86 Mr McComiskie told Mr O’Brien on 5 February 2004 that following the lifting incident at work he experienced constant severe low back pain that extended across both buttocks. The back pain became more severe about two to three weeks after his injury and he developed pain radiating into the posterior aspect of the left thigh and calf to the sole of the left foot.[39]
[39] DCB 17
87 His initial opinion was that the radiological investigations did show some disc abnormality in the lower lumbar spine and it was likely that the plaintiff has underlying discogenic pain without any frank evidence of disc herniation involving nerve root irritation compression.[40]
[40] DCB 19
88 Mr O’Brien considered the plaintiff had true chronic pain for which he recommended pain management. He considered that he was moderately disabled as a result of his incapacitating back pain. There is no possibility of him returning to his pre-injury employment and that there was little likelihood of him returning to employment, even modified duties, in the near future. He acknowledged that the prognosis was poor.[41]
[41] DCB 26
89 This opinion is consistent with the expressed opinion of Dr Watts, the treating general practitioner and other specialists who have examined the plaintiff namely, Dr Vivian, Mr Bittar, Mr Westh and Dr Horsley.
90 Following the 26 February 2008 examination he confirmed that the plaintiff’s condition had remained unchanged. At that time he considered Mr McComiskie’s report of chronic pain and leg pain was associated with subjective signs that could not be regarded as demonstrating significant local lumbar sacral pathology. His diagnosis was chronic pain syndrome.
91 He considered him capable of modified duties which would exclude undertaking any employment which placed heavy physical stress on the spine such as lifting, bending and adopting positions such as sitting and standing for prolonged periods of time.
92 Given that he considered that Mr McComiskie’s clinical condition was stable with there being no alteration in his symptoms in the period since he first examined him I am unable to reconcile why he has changed his initial diagnosis from discogenic pain to chronic pain syndrome.
93 Mr Hugh Weaver, orthopaedic specialist, saw the plaintiff on 5 November 2008. Following his examination and review of all the investigations he concluded that he presented with clinical, radiological and MRI evidence that he is almost certainly suffering from a genuine mild degree of lumbar intravertebral disc pathology. He related that to his employment activities that he had been performing in late 2002.
94 Mr Weaver accepts that that lower back pathology would generally make it difficult for him to return to heavy labouring activities of any kind, in other words that he could not fulfil his pre-injury employment duties. He recommends that he avoid bending or twisting movements of his thoraco lumbar spine. [42]
[42] DCB 35
95 His assessment is that Mr McComiskie exhibits evidence of a genuine but limited organic problem which takes the form of a degree of lumbar disc degeneration. He considered additional psychiatric factors were complicating the situation. [43]That aspect of his expressed opinion is not supported by the psychiatric assessments therefore I have not really placed any weight on that aspect of Mr Weaver’s report.
[43] DCB 38
96 Dr Chris Baker, specialist occupational medicine, examined the plaintiff on 17 December 2008. He considers that he is suffering with a chronic pain state with evidence of inconsistency. He states that it is probable the plaintiff has a greater work capacity than he admits. [44]
[44] DCB 47
97 He noted the findings on MRI but considered that his incapacity was related to a chronic pain state where there was a non-physical component. He does nonetheless state that he is not capable of undertaking pre-injury employment but would have a capacity for work from a purely physical perspective. He concluded he has a capacity for undertaking restricted duties. He suggests that he ought not lift more than ten kilograms and he should not undertake repeated bending, twisting or maintaining a flexed posture for prolonged periods of time.[45]
[45] DCB 48
98 Consequently, he considered him capable of working as a photography assistant, nursery hand and food process worker, but accepted that some of the duties may well involve heavy work and that he would be restricted in those occupations. He considered he could undertake general betting clerk work but again restrictions would be placed in regards to weights and activities. He did not consider that metal production assistant work was a practical occupation for Mr McComiskie.
99 Mr Daryl Nye, neurosurgeon, examined the plaintiff at the request of the defendant’s solicitors on 24 November 2009. He concluded that Mr McComiskie has a history of back pain prior to the identified work injury, which has resulted in aggravation of probable pre-existing two level lumbar disc degeneration. There was no evidence of nerve root compression, and the CT scans do not reveal interval change. The explanation for his marked limp was unclear. The only clinical finding was mild wasting of the thigh musculature.[46]
[46] DCB 56
100 Mr Nye did not identify any functional component or psychological reaction at the time of the examination. He too considered Mr McComiskie has a partial incapacity for employment. He confirms that he is limited from engaging in any activity which required repetitive bending or twisting movements of the spine, prolonged unrelieved periods of either standing or sitting and a lifting limit of five kilograms would be appropriate and such should not be conducted from below waist level.[47]
[47] DCB 57
101 Mr Nye was subsequently provided with a letter outlining suitable jobs. He did not consider the positions of food packer/process worker, shelf filler, service station attendant, ticket sales person and mail sorter to be appropriate having regard to the physical requirements associated with those positions, particularly handling product and notably also baggage. The positions of product control, quality control or robot operator, sales assistant, call centre worker he considered within his physical capacity provided restrictions identified in the first report were consistent with those occupational activities.[48]
[48] DCB 58-59
Findings
102 Having regard to all the evidence I am satisfied, on balance, that throughout the course of employment and in particular, following the incident at work on 31 October 2002 the plaintiff suffered injury to his low back that is discal in nature.
103 Having regard to the evidence of the plaintiff as to the nature and extent of his back symptoms, the expressed opinions of Dr Watt, Mr Edwards, Dr Vivian, Mr Bittar, Mr Westh, Dr Horsley and Mr Nye, whose opinions I accept, I am satisfied, to use the words of Redlich AJ in Zivolic v Hella Australia Pty Ltd
[2007] VSCA 142 that─ “The medical evidence has sufficiently identified the
physical consequences of the injury for the plaintiff.”
104 On balance, I am satisfied that there is a clear physical cause for the plaintiff’s injury and the consequences of that result in impairment to the low back which satisfies the statutory requirement of serious injury.
105 I am satisfied that Mr McComiskie suffers from discogenic lower back pain and sciatica secondary to the L4/5 plus or minus the L5/S1 intervertebral disc bulges as demonstrated on the MRI.
106 I am further satisfied that the impairment to the back or loss of body function of the spine is permanent in the in the sense that it is likely to last for the foreseeable future.
107 Mr McComiskie has endured eight years of physical restrictions and limitations and chronic pain. That position is likely to continue indefinitely. His affidavits document the consequences of his back injury. He has significantly curbed his social activities. He has difficulty with any activity which requires bending or lifting. He experiences postural discomfort. He cannot sit or stand for any length of time without irritation. He has difficulty sitting in a car for too long.[49] He experiences disturbed sleep requiring the use of sleeping tablets.[50]
[49] PCB 26
[50] PCB 29
108 There is general consensus that Mr McComiskie can no longer perform any heavy manual work and is severely restricted by reason of the physical consequences of his low back injury.
109 In his evidence he related the significant problems he experienced on the previous Saturday driving from Pakenham to Scoresby to collect something from his girlfriend’s home and then driving to his grandmother’s home in Springvale and back home to Pakenham. That night he attended his sister’s home for dinner and had to take pain killers and lie down because of back pain and migraine that he related to the driving.[51] All of those consequences for a man of only 38 years are serious.
[51] T 12, L30-31; T13, L1-20
110 In summary, I am satisfied that the pain and suffering consequences of the plaintiff’s impairment or loss of body function – of his low back – when judged by comparison with other cases in the range of possible impairments or losses of a body function could fairly be described as being more than significant or marked, and as being at least very considerable.
Findings – loss of earning capacity
111 I am satisfied that the plaintiff has also discharged the burden of proof in this regard, both in relation to the “very considerable” test and in relation to the additional stringent tests contained in s.134AB(38)(e) to (g).
112 I have had regard to s.134AB(19)(b) which provides that the plaintiff, for the purposes of proving the relevant loss of earning capacity, bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment, including alternative or further or additional employment and the extent of such inability.
113 I am satisfied the plaintiff has satisfied this onus. He completed the multi disciplinary functional rehabilitation program at Cedar Court. He has been compliant with his exercise regime and in attending his physiotherapist for treatment. He has undertaken the vocational assessments required by the defendant. He unsuccessfully attempted to complete the photography course. He unsuccessfully applied for employment as a photographer’s assistant and through the WISE employment service has unsuccessfully applied for work at AVans and an abattoir in Dandenong. His past employment history relates to heavy unskilled manual work. He has little formal education and literacy problems. He has little by way of transferrable skills. I am satisfied that as a result of his injury he is totally precluded from his pre-injury employment.
114 Further, I am satisfied whilst there may be a theoretical possibility of light work employment of the type proposed by Dr Watt and others, in reality he is and will remain unfit for all employment for which he might reasonably be suited.
115 I am not satisfied that any of the specific jobs identified by Ms L Thepvongsa in the Vocational Assessment Report she prepared for Nabenet on 23 May 2008 would be within the plaintiff’s capacity. His physical restrictions would preclude him from undertaking a photography assistant’s job, nursery hand, food processing, general betting clerk and metal production assistant.
116 Much consideration was given to a quality control position, during the course of the cross-examination of the plaintiff and Dr Watt, however having regard to his physical limitations and lack of relevant work experience and expertise I do not consider that would be suitable employment.
117 I accept the expressed opinion Ms Leitch, who prepared a Vocational Assessment Report dated 30 April 2009. I have also had regard to and accept her expressed opinion as set out in her letter 10 February 2010 concerning the comments made by Dr Nye relating to suitable employment.
118 I am required under s.134AB(38)(e) to (g) not to grant leave unless the worker has established loss of earning capacity required by s.134AB(38)(b) unless the work has a loss of earning capacity of 40 per cent or more and will after the date of hearing continue permanently to have a loss of earning capacity which will productive of a financial loss of 40 per cent or more (as mooted and determined in accordance with paragraphs (f) and (g) of s.134AB(38).
119 It was generally agreed by the parties that the plaintiff’s without earning capacity is $500 gross per week. The consensus of opinion is the plaintiff’s condition is stable and is not likely to improve into the foreseeable future.
120 Having regard to the limitations I consider that the plaintiff’s capacity for suitable employment has all but been destroyed. Therefore, I conclude he has established a loss of earning capacity of more than 40 per cent as required by s.134AB(38)(e).
121 I am satisfied that, when judged by comparison with other cases in the range of possible impairments, loss of earning capacity consequences for the plaintiff’s back injury can be fairly described as being more than significant and marked or at least very considerable. (Section134AB(38)(b) and (c)).
122 Therefore I am satisfied that the plaintiff does qualify for the description of “serious injury” having regard to the consequences that relate to both pecuniary disadvantage and/or pain and suffering as provided for in the Act.
123 I grant leave pursuant to s.134AB(16)(b) to commence proceedings for the recovery of damages for both pain and suffering and pecuniary loss damages in respect of the injuries suffered during the course of his employment with Red Gem Growers and Packers Pty Ltd and in particular on 31 October 2002.
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