McGregor v Farm Mate Pty Ltd and WorkSafe
[2009] VCC 528
•11 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
Case No. CI-08-03907
| JOHN ALEXANDER McGREGOR | Plaintiff |
| v | |
| FARM MATE PTY LTD | First Defendant |
| and | |
| WORKSAFE | Second Defendant |
---
| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 29 and 30 April 2009 |
| DATE OF JUDGMENT: | 11 May 2009 |
| CASE MAY BE CITED AS: | McGregor v Farm Mate Pty Ltd & WorkSafe |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0528 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering only- whether consequences to the plaintiff are
serious.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird and | Saines Lucas |
| Mr K Mueller | ||
| For the Defendants | Mr P Scanlon QC and | Herbert Geer |
| Mr I Gourlay | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant, in particular on 1 November 2006 (“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 s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The impairment of body function relied upon in this case is the low back.
5 The plaintiff relied upon three affidavits and he was cross-examined. The plaintiff also relied upon an affidavit sworn by his son, Wade McGregor, on 17 April 2009. In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities;
(iv) By subsection (38)(c) 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”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(vii) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and in Grech v Orica Australia Pty Ltd v Anor (2006) VSCA 172 in reaching my conclusions.
The Plaintiff’s Evidence
6 The plaintiff is aged sixty-four, having been born on 7 March 1945. He is divorced with two adult children. The plaintiff completed Year 9 and then undertook an apprenticeship as a fitter and turner.
7 Over the years the plaintiff has worked in various jobs all around Australia – in mines, for truck companies, in the building and construction industry, on the docks and driving trucks.
8 From time to time prior to the said date, the plaintiff had aches and pains in his back which were usual for the type of work he was performing. The symptoms were minor compared to those he has suffered since the said date.
9 The plaintiff has attended Dr Phillips for over twenty years. In 1995, the plaintiff attended him with back pain which was diagnosed as musculature strain. The plaintiff cannot recall taking any medication or having time off work at that time.
10 Whilst he deposed that in May 1998, he attended Dr Phillips several times with lower back pain and his back was x-rayed and a CT scan was suggested if symptoms persisted, the plaintiff could not recall details of these examinations.
11 The plaintiff’s back remained trouble free until 25 November 2002, when he hurt his back at work. He had three days off, he attended a chiropractor and the symptoms settled.
12 On 16 January 2006, the plaintiff attended Dr Phillips with back pain, which was quickly relieved by Nurofen, and a muscular back strain was diagnosed. The symptoms affected a different part of the plaintiff’s back to his present complaint and were minor compared to his present symptoms.
13 Between 28 June and 28 July 2006, the plaintiff attended Dr Phillips two or three times with a stiff and tender back. An x-ray was ordered and the plaintiff was advised the disc spaces were well preserved and the sacroiliac joint was normal. He described his back problem at this time as “just a twitch”.
14 The plaintiff agreed that he continued to have back pain on and off from 1998 until the said date. There was no comparison between that pain and what he has felt since then. In the past the pain was just very mild, “just a very slight ache” and would go after a couple of days. The plaintiff denied that his back pain was particularly bad in 1995 and 1998.
15 Prior to the said date the plaintiff’s earnings were as follows:
Financial Year Employer Gross Earnings
2000-2001 I & C Hunt Pty Ltd (Online Personnel) $20,372.00 2001-2002* I & C Hunt Pty Ltd (Online Personnel) $9,884.00 2002-2003 I & C Hunt Pty Ltd (Online Personnel) $2,777.00
Direct Recruitment $14,397.00
2003-2004 Miller Brothers $11,817.00
Ellis Management Services Pty Ltd $904.00
2004-2005 Ellis Management Services Pty Ltd $1,900.00 2005-2006 M B I Engineering Services $10,110.00
Catalyst Recruitment Systems $280.00
* The plaintiff underwent a triple bypass operation that year.
16 The plaintiff’s work between 2000 and 2006 involved working on lathes and milling machines, rolling steel and making plastic moulds.
17 The plaintiff commenced employment with the first defendant in September 2006 as a fitter/welder. The first defendant was in the business of manufacturing agricultural hoppers, and in the course of his work, the plaintiff was required at times to do heavy manual lifting.
18 The plaintiff worked a 38-hour week and was paid $16.50 per hour, earning a total gross weekly income of $529.
19 On the said date the plaintiff suffered low back pain after manually trying to bend some steel in a vice (“the incident”).
20 The day after the incident, the plaintiff attended a general practitioner, Dr Rankin, who certified him off work and prescribed pain-relief and anti- inflammatory medication. At that time the plaintiff’s pain was agonising. It was in the middle of his back and did not go into his legs.
21 The plaintiff saw Dr Rankin again the next day, as his pain worsened. Over the following days the plaintiff’s pain continued to worsen. He was taken by ambulance to Ballarat Base Hospital where he was admitted as an in patient for about eight days. Whilst in hospital the plaintiff was given an injection in his lower back which gave him short-term relief. The day before he went to hospital the plaintiff had started to experience left leg symptoms in addition to his low back and right buttock symptoms. The plaintiff underwent an MRI scan on 9 November 2006, which he understood showed disc bulging at L5- S1 and a disc extrusion at L2-3.
22 After the plaintiff advised the first defendant that he would be unfit for work for a couple of weeks, the plaintiff’s services were terminated and he has been unable to return to any sort of work since that time.
23 Since the incident, the plaintiff has had physiotherapy and chiropractic treatment which at times has not been helpful and has made his condition worse. The plaintiff was referred to the WEC Exercise Physiotherapy Department by the BHS Physiotherapy Department on 22 February 2007 for an exercise program post hospital admission on 14 November 2006 for chronic low back pain. The plaintiff has continued to see Dr Phillips.
24 In cross examination, the plaintiff disagreed that there had been an improvement in his back condition a couple of months after the incident. Further, he described times where there had been acute flare-ups. One such flare-up occurred in August 2007 when he reached down to get something out of the cupboard. When asked about Dr Phillip’s note that the plaintiff complained of “pain on and off” the plaintiff explained this meant that sometimes his pain was mild and sometimes it was severe.
25 The plaintiff’s pain and discomfort are caused by bending, lifting, twisting or stooping, and the plaintiff tries to manage his symptoms by avoiding activities likely to aggravate them. He can bend forward to touch his knees. He has difficulty lifting anything heavy.
26 The plaintiff struggles with domestic chores and home maintenance. He has difficulty sitting for long periods and at times suffers sharp biting low back pain when seated. The plaintiff has difficulty standing or sitting for more than one hour and sometimes after that time he has to lie down.
27 The plaintiff is devastated by his inability to do manual work and he has grave doubts about his ability to return to the workforce in any meaningful capacity. Prior to the incident, he had planned to work to at least age sixty-five.
28 The lower back and sciatic/leg pain that the plaintiff has suffered since the incident is much more than anything he has previously suffered. He is now in constant pain which varies from mild to severe depending on his level of activity, but he is seldom completely pain-free.
29 Prior to the incident any aches were to the right of the lower back whereas now the pain is central over the spine and extends particularly to his left leg. He previously had no referred pain into his legs.
30 Prior to the incident the plaintiff had no trouble sleeping and he was able to move freely and walk long distances. He could garden, play bowls freely, do the housework, repair the car and generally go about life free of any real restrictions.
31 However, since the incident the plaintiff has been severely restricted. He cannot work. He does not socialise as often. He no longer can go dancing. He has trouble sleeping, he takes painkillers and he cannot drive for long distances without breaks. He requires help with gardening and housework, with his sons doing the heavy housework and mowing the lawn. The plaintiff does not feel independent anymore and is frustrated having to rely on others for help.
32 The plaintiff even has trouble bending sufficiently to wash his feet and sometimes he has trouble dressing. He has to sit down to put his shoes on and then he just slips them on because he cannot do up his shoelaces. He has to be careful that he does not move the wrong way. Having had a triple bypass operation in July 2001, the plaintiff walks regularly at a brisk pace for the sake of his health. Walking over uneven terrain jars his back and causes pain.
33 The plaintiff continues to play bowls but not as often and he usually takes Panadol and Nurofen to help him get through the game. Prior to the incident, in addition to playing pennant over eighteen weeks between October and March, the plaintiff practised five to six nights a week, and on two Sundays a month he also played social and club matches.
34 Since the incident the plaintiff plays pennant only and he has missed the odd game because of back pain. He did not play for three matches in early 2009 twice because of inclement weather, although he would not have been able to play on one of these weekends because of back pain and on the third occasion he did not play due to his back pain. He has only practiced on a handful of occasions and struggles after twenty minutes. He no longer plays on Sundays. He played the last game of the season this year as shown on video because he was keen to catch up with his friends. He knew he could not have played the next week if there was a further match because of his back pain. He took medication during the match and he suffered in the weeks following, not being able to get out of the house for three days because of his pain.
35 The plaintiff also takes care about the way he bowls, having changed his style to try to eliminate bending. Rather than walking into the bowl and releasing the bowl leaning forward in the usual style, he simply squats and releases the bowl without much of a follow through.
Lay Evidence
36 Wade McGregor, the plaintiff’s thirty year old son, swore an affidavit on 17 April 2009. He has regular contact with the plaintiff, seeing him at least once a week.
37 Prior to the incident, Wade described the plaintiff as an active man who never complained of back pain. He greatly enjoyed playing bowls, gardening and playing with his grandchildren. He did his own household chores.
38 Since the incident, the plaintiff often appears to be in pain and he sometimes has trouble moving. On one occasion Wade had to arrange for the plaintiff to be conveyed by ambulance to the Ballarat Hospital, where he remained for about eight days.
39 Wade and his brother usually mow the plaintiff’s lawns and help him with gardening. Occasionally the plaintiff asks for assistance with heavy housework, such as mopping or vacuuming, requests he never made before the incident. Sometimes the plaintiff gets his boarder to help with household chores when his back is particularly bad.
40 Prior to the incident, the plaintiff greatly enjoyed playing cricket and having a kick of the football with Wade’s ten year old son, but he does not do so anymore. The plaintiff spends a lot of time on the computer rather than keeping active as he used to. On other occasions he gets laid up in bed and gets up late. The plaintiff finds it difficult sitting or standing for long periods and he often seems in considerable pain.
The Plaintiff’s Medical Evidence
41 In November 2006, Dr Phillips reported the plaintiff developed severe low back pain and left leg sciatica, ending up in hospital where he had an epidural injection which relieved some of his symptoms.
42 Dr Phillips reported in April 2007 as to the plaintiff’s condition prior to the incident. He summarised various attendances by the plaintiff in the period leading up to the said date. He noted that the plaintiff attended in late June 2006, mid July and on 28 July 2006 complaining of pain in the right lower back which appeared to settle over the next two to three months.
43 When the plaintiff attended the day after the incident his back pain was left- sided. On 6 November 2006, the plaintiff complained of severe pain down the left leg and he was then admitted to hospital.
44 Significantly, Dr Phillips noted that there was nothing in the plaintiff’s past medical history to suggest any previous episode of severe back pain and he presumed that the disc prolapse was as a result of the plaintiff’s work.
45 Dr Phillips reported in August 2007 that the plaintiff was currently experiencing a flare-up of his low back pain and that he was struggling to get relief. He requested the plaintiff be provided home help and funding for hydrotherapy.
46 When he last reported on 29 April 2009, Dr Phillips noted that nothing had changed in the plaintiff’s condition. The plaintiff was unable to return to work and he was still having difficulty performing household chores. He noted that throughout 2008 the plaintiff was receiving physiotherapy to help him manage his lower back pain.
47 Dr Phillips also mentioned the plaintiff had an exacerbation in January 2009 leading to a referral to orthopaedic outpatients at Ballarat Health Services (“BHS”).
48 The plaintiff was examined by Dr Capes, industrial physician, for medico-legal purposes on two occasions, firstly on 26 October 2007, and most recently on 9 December 2008.
49 On re-examination, the plaintiff’s low back pain was the same as he had described on the first examination. The pain was severe at worst, and on some days it was milder. He had intermittent pain in the right leg in the anterolateral aspect of the thigh. The pain in the left leg was more severe and it was intermittent, and also in the anterolateral aspect of his thigh. At that time the plaintiff was taking Panadol and he was undergoing chiropractic treatment weekly.
50 In Dr Capes’ view, the plaintiff’s symptoms and examination findings were consistent with an L2-3 canal stenosis. He believed the plaintiff’s condition was stable but that it most likely would deteriorate.
51 Dr Capes did not see any prospect of the plaintiff re-training and he thought the plaintiff had no capacity for his pre-injury employment. He disagreed with the view of the plaintiff’s general practitioner that the plaintiff could possibly work a few hours per week. Dr Capes did not think the plaintiff had any capacity for work at his age and with his easily provoked symptomatology.
52 The plaintiff was examined on two occasions for medico-legal purposes by Mr Schofield, orthopaedic surgeon, firstly on 8 November 2007, and most recently on 22 January 2009.
53 On re-examination, the plaintiff stated his symptoms remained much the same as before. He continued to complain of back pain which was there every day, mainly down the left leg with tingling and occasional sharp lower leg pain which may affect the right leg to a lesser degree also. He had a positive cough impulse.
54 Mr Schofield found there was limited range of back movement and straight leg raising was to 50 degrees bilaterally. There was no wasting of either leg. The plaintiff had normal power, reduced sensation over the left lateral calf, normal pulses in each foot and his ankle jerks appeared brisk, except the left knee jerk, which was reduced.
55 Mr Schofield concluded the plaintiff’s condition was stabilised. He repeated his earlier comment that he was unable to provide a prognosis without a further MRI scan. He noted a scan of that type would help determine whether the sequestrated prolapse at L2-3 was resolving, remaining the same or getting bigger.
56 Mr Schofield considered that this was the major area of pathology which caused the plaintiff to cease work, and that if the stenosis could be eradicated at that level, the plaintiff may at least get more ease in his symptoms and enjoy retirement. In his view, surgery must therefore be considered a probability.
57 Mr Schofield noted the injury may have caused further aggravation of the adjacent disc so that removal of a prolapse at L2-3 would not relieve all the plaintiff’s symptoms as he had some relatively minor stenosis affecting other levels due to the aggravation of degenerative changes which Mr Schofield believed was consistent with the injury.
58 The plaintiff was examined on behalf of the defendants by Mr Polke, orthopaedic surgeon, on 17 March 2009.
59 On examination, Mr Polke noted there was some slight tenderness in the lower region of the dorsolumbar spine and minimal muscle guarding. The plaintiff only had a jog of movement in any one direction and he could straight leg raise to 50 degrees bilaterally, causing low back pain.
60 In Mr Polke’s view, the plaintiff suffered from mainly an L2-3 disc protrusion and that other levels were less involved. He considered the plaintiff’s prognosis was only fair because he had been suffering from pain for the last three years.
61 Mr Polke thought the plaintiff’s condition appeared to have arisen out of the plaintiff’s employment which appeared to have been a contributing factor to his injury.
62 Mr Polke considered the plaintiff had no capacity for his pre-injury employment as a welder and that at the age of sixty-four he did not expect the plaintiff to return to such employment. He considered that appropriate restrictions on the plaintiff’s work included avoiding repeated bending, heavy lifting and twisting of his lower spine. Mr Polke considered the plaintiff had a permanent incapacity for his trade.
Investigations
63 An MRI scan of the lumbar spine was carried out on 9 November 2006. It showed a congenitally narrow canal. There was severe canal stenosis at L2-3 related to a central disc herniation and left paracentral superior extrusion. There was no definite left L2 nerve root compression.
Vocational Evidence
64 The Health and Safety Managers Pty Ltd carried out a vocational report in February 2009.
65 It concluded the plaintiff would not be able to obtain or cope with full time employment. He could not cope with attendance every day because of his limited tolerances. His only changes of employment would involve clerical or computer related activities that were relevant to the fitting and turning industry. The plaintiff, in such a role, would need to be able to vary his position between sitting and standing and probably lie down. It was thought that the plaintiff may be able to cope with working two hours, three days a week.
The Defendants’ Medical Evidence
66 The plaintiff was examined by Mr Russell, general surgeon, on two occasions, initially on 26 February 2007, and most recently in January 2008.
67 On re-examination, the plaintiff said he felt the same as before. He had pain in the midline of his lower lumbar region which he described as being a slight niggle nearly all the time and a pain if he did something that he should not. The pains, when they flared-up, usually lasted two to three days. Occasionally there was a bit of pain in the upper outer aspect of the left thigh and very occasionally the outer aspect of the left calf.
68 On examination, Mr Russell found restriction of lower back movements. In his view, the plaintiff did not appear to give a particularly strong effort in his movements, saying he did not want to go further in case it hurt. Straight leg raising was 35 degrees bilaterally. The plaintiff told Mr Russell that he stopped moving his legs in those movements in case it hurt. Mr Russell noted the plaintiff had no trouble extending his left and right legs from the seated position but sat back to some degree with both legs extended at the same time. Sensation, power and reflexes were intact.
69 In Mr Russell’s view, the plaintiff appeared to be somewhat better than he realised or made out. He did not get the firm impression that the plaintiff was giving maximum effort in the examination and he was not sure he had a high motivation to return to the workforce.
70 In Mr Russell’s view, medically the plaintiff had quite reasonable function. He considered the plaintiff would not be rendered unfit for all employment because of his condition and that he was currently fit for work involving moderate bending and lifting up to 5 kilograms to occasionally 10 kilograms on an intermittent rather than continuous basis. He thought the plaintiff could perform appropriate work full time.
71 Mr Russell considered the plaintiff’s condition would benefit from a home exercise program and a walking program. He thought that the plaintiff did not require any “hands on” treatment or medication.
72 With some reservations, Mr Russell accepted the plaintiff had ongoing symptoms but he felt it very likely the plaintiff was significantly better than he realised or made out, and that with motivation the plaintiff should be able to return to the workforce in many different activities within the above restrictions.
73 Mr Paul Kierce, orthopaedic surgeon, examined the plaintiff in February 2008 for the purposes of an AMA assessment.
74 The plaintiff told Mr Kierce that he had suffered some previous back trouble but it was not significant and that he did not need any treatment.
75 The plaintiff complained his worst pain was in the centre of his lower back with radiation into the left hip region and buttock to the outer side of the left hip, with very occasional pain in the left calf. The pain was constant but worsened if he bent, lifted or carried anything. He had occasional pins and needles and numbness in his left leg.
76 At that time the plaintiff was taking on average twelve Panadol tablets a week and half an aspirin daily. He had recently resumed playing bowls. He could do the housework but his sons helped him and did the lawns. Sometimes his ex-wife came over and helped with the housework. The plaintiff sometimes had difficulty putting his trousers on.
77 On examination, the plaintiff was tender centrally in the lower lumbar spine. He was able to flex his spine so his fingertips reached to mid-calf. Extension was possible through 75 per cent of the normal range. Lateral flexion to the left was painful and the plaintiff could only reach to the junction of the middle and lower thirds of the left thigh. Rotation was bilaterally decreased by about 50 per cent of normal range and straight leg raising was free.
78 In Mr Kierce’s view, the plaintiff was suffering from congenital lumbar spine stenosis aggravated by an extrusion of the disc between the second and third lumbar vertebra centrally and to the left. He thought the plaintiff’s impairment had stabilised and he considered it unlikely to change substantially.
79 He noted he had read Mr Russell’s opinion regarding his view of a video taken of the plaintiff on 25 May 2007. Mr Kierce noted he had not been privy to the video. He commented he was interested and noted:
“Taking into account the patient’s observed activities in May, it would seem difficult to conclude anything other than the patient does have a capacity for work in appropriate work that can be found for him.”
80 Mr Russell’s report dated 21 January 2008 makes no reference to the May 2007 video. Mr Kierce was provided with a further report from Mr Russell dated 28 June 2007 which was not relied upon by the defendants.
81 Mr Robert Marshall, general surgeon, examined the plaintiff on 9 September 2008.
82 The plaintiff complained to him of persisting pain on the right side of his lumbar region which was somewhat variable. It now tended to involve both legs at times, sometimes the left and sometimes the right, and was always in the upper region of the leg and in the thigh, only very occasionally extending below the knee.
83 Mr Marshall noted there was little to find on examination. There was some minor limitation of flexion/extension of the lumbar spine but no other neurological, musculature or joint abnormality was detected. He noted the plaintiff complained of pain which did seem typical of involvement of the upper lumbar nerves which are distributed to the thigh, not to the calf and foot.
84 In Mr Marshall’s view, the plaintiff was certainly suffering from quite severe age-related degenerative changes in his lumbar spine and also his cervical spine. These changes in Mr Marshall’s view were not work-related but he thought that the plaintiff did have a prolapsed disc at L2-3 which may or may not have been caused by the incident, but certainly could have been aggravated by it.
85 Mr Marshall believed the plaintiff had a perfectly genuine back problem which could certainly account for some degree of partial disability. He thought the prognosis was that the plaintiff’s problems would undoubtedly continue and would perhaps worsen gradually as he aged.
86 Mr Marshall considered there was at least some relationship between the plaintiff’s symptoms and his work, but he thought the major part of the plaintiff’s problems could be attributed to age-related degenerative changes and it may well have been that the incident might have produced no more than temporary symptomatic aggravation of those changes. Nevertheless, it seemed reasonable to him to presume that the incident was at least a significant factor in producing the plaintiff’s present symptomology, either by causing the prolapse or by making it worse.
87 Mr Marshall considered the plaintiff’s injuries affected his enjoyment of life and daily activities but noted that it seemed that the plaintiff was more preoccupied about his symptoms than was strictly necessary.
88 Mr Marshall thought the plaintiff was suffering a permanent impairment which had been contributed to by the incident but which was most likely the result of spinal stenosis and age-related degenerative changes in the facet joint and discs in his back.
89 Mr Marshall did not believe the plaintiff was fully fit for his pre-injury employment duties but thought he could carry out light work not involving repeated bending and straightening, and in particular not involving the lifting of weights. He considered a return to suitable light employment would be the best possible therapy. He noted that the plaintiff appeared to have become resigned to a completely inactive life and was in danger of slipping into a state of chronic illness behaviour.
90 On re-examination on 5 February 2009, Mr Marshall noted nothing had changed on examination and he could add nothing to the opinions previously expressed.
91 However, the answers to ten questions put to him by the defendants’ solicitors seem to suggest a change in his view. He now does not consider the plaintiff has any problems other than the normal ageing process and that there is nothing to indicate any injury, work-related or otherwise. He noted the plaintiff was not suffering from any injury or condition related to his employment and he did not believe the employment had been a contributing factor to any injury. In his view, any such soft tissue injury would have recovered within no more than a few weeks at most. Mr Marshall did not believe any permanent impairment had been caused or contributed to by any injury at work.
Vocational Evidence
92 CRS commenced a return to work program for the plaintiff in December 2006.
93 A functional capacity evaluation report was carried out by CRS in March 2007. It was concluded that the plaintiff’s current physical status indicated suitability for light work duties. The plaintiff at that time demonstrated limitations in physical endurance, strength and balance. It was considered suitable work may include a job that would allow frequent postural change, not involving heavy lifting or kneeling and not requiring extended periods of activity.
94 The Victorian WorkCover Authority carried out a vocational assessment on 31 July 2007. The jobs of sales assistant, information technology administrator, car driver and call centre operator were considered suitable jobs for the plaintiff. It was noted that the plaintiff expressed interest in doing a job that was not too physical and that he suggested working in sales at Bunnings, where he could also offer advice, or at Camerons, as it is a trade he knows, or in computing.
95 It was concluded the plaintiff may not have a full time capacity, but based on the medical evidence provided, he had a capacity for employment. It was noted that the plaintiff might require some refresher training if he decided to work in the retail industry, or if he obtained work in the computer industry he might need formal qualifications around his skill set since he was self-taught.
Video Surveillance
96 Video surveillance was undertaken of the plaintiff on a number of occasions. He was shown walking briskly on 17 March 2008 and picking up something from the ground in a full squat. On 18 March 2008, the plaintiff was shown going to the chiropractor and to a computer shop.
97 On 21 October 2008, the plaintiff was again shown briefly at the Bowls Club (“the Club”). He agreed at that time he was standing comfortably. The plaintiff was filmed practising at the Club on 23 October 2008 between 4.17 pm and 5.56 pm. He left the green for ten minutes, during which time he said he might have had a rest or he might have taken some tablets. He did not disagree that he could have put down 80 bowls in this practise session.
98 The plaintiff was filmed briefly at the Club on 30 and 31 January 2009. There was a short film of the plaintiff taking something out of the letterbox on 27 February 2009. The following day there was lengthy film. The plaintiff was shown arriving at the Club at 10.56 am. He proceeded to put down some bowls in practice. He explained that he did so before playing his match to see how he would go because he had not played for the previous three weeks.
99 The plaintiff was then shown sitting down eating his lunch. He went home and returned to the Club at 1.11 pm in his competition gear. He commenced a match at 1.20 pm. The match finished at 6.05 pm.
100 In cross examination, the plaintiff agreed that he was shown walking in a comfortable and relaxed manner during the match. He said he did not like to show his teammates he had any problem. He explained that he sat down as much as he could but there was not much room as there were a lot of people around as it was the last game. He had taken Panadol and Nurofen before he started playing and also during the match. He explained that he played for the exercise and because he did not want to be housebound.
Findings
101 In these proceedings it is not disputed that the plaintiff suffered a compensable injury on or about the said date.
102 It seems to be generally accepted that the plaintiff suffered an aggravation of a pre existing degenerative back condition (“the condition”). Mr Schofield thought the plaintiff had also suffered an L2-3 prolapse.
103 Save for Mr Marshall, who now says any aggravation from the incident has ceased, all other medical practitioners accept the plaintiff continues to suffer from the condition.
104 Essentially the primary issue is whether the aggravation resulting from the incident was serious and whether the present consequences meet the statutory test.
105 In this case, where there is a pre existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2006 incident is serious and permanent.
106 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
107 In both Angelatos v Museum of Victoria [1999] 3 VR 157, at 162-163 and at 168, and in RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, per Chernov JA at para 40, the Court of Appeal accepted that the principles in Petkovski v Galletti (supra) applied equally to serious injury applications under the Act.
108 In accordance with the principles in Grech v Orica Australia Pty Ltd and Anor [2006] VSCA 172, provided the plaintiff establishes that the subject compensable injury in 2006 materially contributes to his impairment and its consequences and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.
109 Whichever approach is followed, the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation from the 2006 incident is permanent at the time of the hearing in its effects on the lower spine and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak (supra).
110 Whilst the plaintiff had received treatment for back pain on various dates from 1995 and during 2006, I accept that his condition has changed greatly since the incident. Prior to the said date, he was capable of working full time in heavy work as a welder. He only required three days off work in 2002 due to back pain.
111 As Dr Phillips, the plaintiff’s treating doctor for over twenty years confirmed, there was nothing in the plaintiff’s medical history prior to the incident to suggest any previous episode of severe back pain. Dr Phillips noted that the plaintiff’s earlier pain was right-sided and that his pain since the incident was left-sided.
112 Since the incident, the plaintiff has experienced constant pain of varying degrees, he has been unable to return to work, he is limited in a number of activities and he requires medication – a totally different situation to the plaintiff’s position before the incident.
113 The impairment to the plaintiff’s spine must have consequences in relation to each of 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”;
114 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. See in particular Chernov JA at paragraph 29.
115 In addition to being “serious” the impairment must be permanent, in that it is likely to last into the foreseeable future.
116 I accept that the impairment is permanent, with the plaintiff having suffered pain for three years without any real improvement. Mr Schofield, Mr Polke and Dr Capes considered the plaintiff’s condition was permanent – a view initially held by Mr Marshall, who has now changed his opinion without any real explanation. Mr Kierce accepted the plaintiff’s condition had stabilised and was unlikely to improve. Mr Russell, whist having some doubt as to the plaintiff’s level of co operation on examination, still accepted the plaintiff’s condition was genuine.
117 The plaintiff is a man with a trade and a lifetime of manual work who has been unable to return to any work since the incident. There was no evidence that the plaintiff was planning to leave the workforce when aged sixty-two at the time of the incident. He had been working consistently in heavy work involving lathes and milling machines for the previous six years and he had obtained work with the first defendant only two months prior to the incident – not something he would be likely to do if he was in “retirement mode”, as was submitted by counsel for the defendants. The plaintiff enjoyed his work. It was “like he was his own boss”. He enjoyed the people he was working with and he enjoyed creating something people would use.
118 Whilst he was shown on video standing for prolonged periods at the Club, I do not accept that this indicates the plaintiff has a capacity for heavy work.
119 As all doctors agree the plaintiff is unfit to work as a welder. Significant restrictions in relation to bending and lifting have been suggested as appropriate in alternative employment.
120 I do not consider it relevant that the plaintiff’s job no longer existed six months or so after the incident. There is no dispute that the plaintiff’s employment was terminated some weeks after the incident when he advised the first defendant that he required time off work due to his back injury.
121 I accept that the plaintiff has had back and leg pain since the incident, which at times of flare-ups, such as in August 2007, in July 2008, after walking up Dana Street, and on two occasions earlier this year, has been very disabling.
122 In the week or so following the incident, the plaintiff was an inpatient at hospital for eight days, during which time he underwent an epidural injection which gave him some relief. Since that time, the plaintiff continues to require painkilling medication, and from time to time physiotherapy treatment to reduce his back pain.
123 As a result of his back pain, the plaintiff has to dry himself and dress in a modified manner - sitting to dry his feet and put on his shoes. He has problems sleeping due to back pain. He has learned to do things a certain way to help prevent flare-ups as “one wrong move” can cause him a lot of difficulty.
124 As a consequence of his back condition, the plaintiff has lost his independence due to his need to get help from his family to do the heavier chores he had previously undertaken without difficulty. He can longer do car repairs or go dancing.
125 The evidence of the plaintiff’s son, Wade, which was unchallenged, confirms the plaintiff’s ongoing problems following the incident, including the plaintiff’s inability to play football and cricket with his ten year old grandson.
126 Save for the issue of his bowling, there was no real challenge as to the plaintiff’s evidence as to his level of pain and restriction since the incident. The issue of the plaintiff’s credit issue was raised by counsel for the defendants, to the extent that the plaintiff at times exaggerated the level of his pain and disability – an example being his evidence that he could stand for only an hour.
127 However, as was submitted by counsel for the plaintiff, at times the plaintiff’s frankness was not of particular assistance to his case, such as when explaining his absence from bowls for three weeks earlier in the year, the plaintiff volunteered that inclement weather played a part in his non- attendance on at least one occasion.
128 Further, whilst the video was of some duration, showing the plaintiff practicing for over an hour – and on another day engaged in a full game of bowls for over four and half hours – the plaintiff has always been open about his bowls involvement. Although both his administrative involvement with the Club and playing pennant continues, the time he gives to his major hobby is now restricted and his style of bowling has been modified to cope with his bending limitations.
129 Whilst there may have been instances where the plaintiff may have exaggerated his condition, taking into account all the evidence, I do not accept that his credit was successfully attacked to any real degree.
130 Having made findings as to the nature of the plaintiff’s pre existing back condition, I am not troubled by what it was submitted was a less than frank history to Mr Russell in relation to the plaintiff’s back condition prior to the incident.
131 Mention was made by counsel for the defendants of the plaintiff shown walking quickly at various times throughout the various periods of surveillance. However, this presentation was consistent with his affidavit evidence that he walked briskly for exercise following his triple bypass surgery in 2001.
132 Taking into account all the evidence, I am satisfied that the plaintiff has a serious permanent impairment to his spine.
133 I accept that the impairment to the plaintiff’s spine when judged by comparison with other impairments in the range of possible impairments, may be fairly described as being “at least very considerable” and “more than significant” or “marked”.
134 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
- - -
0
3
0