McPhee v Victorian WorkCover Authority
[2019] VCC 1380
•2 September 2019
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03639
| ANDREW ROSS MCPHEE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 8 and 9 April 2019 | |
DATE OF JUDGMENT: | 2 September 2019 | |
CASE MAY BE CITED AS: | McPhee v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1380 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – injury to the lumbar spine
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment:Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages in respect of injury to the lumbar spine.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K Gladman | Shine Lawyers |
| For the Defendant | Mr W R Middleton QC with Ms K Manning | Wisewould Mahony |
HIS 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 injuries suffered by the plaintiff in the course of his employment with Qest Environments Pty Ltd (“Qest”) between 2012 and 2014 due to the nature of his employment.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. He brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning “(a) permanent serious impairment or loss of a body function”. The body function relied upon ultimately in this application is the lumbar spine.
3 The plaintiff relied on two affidavits, sworn 22 March 2018 and 8 April 2019,[1] and gave viva voce evidence. He was cross‑examined. Both parties relied on medical and other material which I have read.
[1]Exhibit A
4 An impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future. The plaintiff bears an overall burden of proof upon the balance of probabilities. By ss(38)(c) of s134AB of the Act, the impairment 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 hearing as being “more than significant or marked” and as being “at least very considerable”.
5 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.
6 The defendant concedes the plaintiff suffered an organic injury to his lumbar spine in the course of his employment as alleged, but does not admit the identity of the injury or the consequences. In essence, the defendant contends the consequences do not reach the statutory threshold.
The Plaintiff’s evidence
7 The plaintiff was born in January 1980 and is currently single. He has two children from a previous marriage.
8 The plaintiff attended secondary school at Chanel College until the end of Year 12. He then completed an apprenticeship as a carpenter over three-and-a-half years, and subsequently, worked in that trade for about nine years in total. He mainly worked on construction sites for various companies.
9 In July 2010, the plaintiff suffered an injury to his left knee and was off work for about eight months. This injury eventually improved and he obtained various tickets for operating heavy plant machinery.
10 In July 2012, the plaintiff began working for the present employer, Qest. He was employed as a truck driver/operator. The company did hydro-excavations, which involved digging up ground with high pressure water, and vacuuming out the slurry.
11 The plaintiff described the nature of his duties as follows:
“My work for Qest required me to lift suction hoses which were attached to the truck. The hoses could be very heavy when they were full of slurry. I would have to lift the hoses to reposition them and I would also have to lift them when they were blocked. These hoses would suck up everything including bricks and rocks. When there were blockages I would have to pick the hose up and try to throw it and slam it on the ground to try to move the blockage. This work put a lot of strain on my back.
In April 2013 I felt sharp pain in my lower back while I was pulling a blocked suction hose out of a bore slurry. I reported my back injury to my employer. I was then put on to light duties at work for about two months. I was sent to the company doctor in Shannon Avenue in Geelong. I also had a series of physiotherapy treatments at the same clinic. I do not recall having any scans on my back. My employer Steven Hull, told me that I should not put in a WorkCover claim because his premiums would go up and it would not look good for me to have a WorkCover claim on my employment record. Steven told me that he would fund my medical treatment as arranged by the company.
After returning to my normal work duties I still continued to suffer from back pain. My employer was aware of my ongoing back problems. I continued to lift the heavy suction hoses. In early 2014 my back pain gradually got worse. In March 2014 I was getting pins and needles in my feet, in addition to my back pain. On 27 March 2014 I was doing a particularly heavy job by myself without any co-worker support. My back pain and leg numbness were so bad after doing this work that I had to go and see my GP, Dr Mohammad Jabbarpour.”[2]
[2] Exhibit “A”, affidavit sworn 22 March 2018, Plaintiff’s Court Book (“PCB”) 12-13
12 After having a CT scan of his lumbar spine on Friday, 28 March 2014, the plaintiff advised his supervisor about his back problem and he was subsequently fired.[3]
[3] Exhibit “A”, affidavit sworn 22 March 2018, PCB 12-13, paragraph 8
Medical treatment
13 In his first affidavit, the plaintiff swore:
“My GP prescribed Panadeine Forte medication for my back pain. I lodged a WorkCover claim with Allianz. I began having physiotherapy and hydrotherapy treatment with Tanya Deans.
My back pain continued and during 2014 I was put on to strong Endone and Lyrica medications. I had an MRI scan of my lumbar spine on 13 May 2014. I was referred to a neurosurgeon, Dr Ales Aliashkevich and he examined me in September 2014.
I was referred to a pain management specialist, Dr Symon McCallum and he assessed me in October 2014. In October 2014 the company agreed that I could attempt a return to work program on part-time light modified duties. However, I only lasted for about two weeks. The duties were not light because they involved washing trucks and cleaning toilets. I had to stop work because this aggravated my back pain.
I was referred to another pain specialist, Dr Diarmuid McCoy, and I came under his care in March 2015.
On 22 April 2015 I underwent a caudal epidural procedure in to my spine which was performed by Dr McCoy at Pain Matrix. This procedure did not improve my back pain. My GP prescribed anti-depressant medication for me but it made me so drowsy that I couldn’t function properly.
On 5 August 2015 I underwent a medial branch block procedure which was again performed by Dr McCoy. I had a further review with Dr McCoy in October 2015. The further procedure did not improve my back pain.
During 2016 I began a Certificate II in security. However, I was not physically fit enough to finish off the course because the final part of the course involved physical training. During 2016 my GP put me on to Lexapro anti-depressant medication. I began having serious problems with my marriage and I believe that my back injury played a major role in this because I was in constant pain and I was not able to work. I continued to manage my ongoing symptoms by taking Lyrica and Lexapro medications. I had a further CT scan of my lumbar spine on 2 December 2016.”[4]
[4]Exhibit “A”, affidavit sworn 22 March 2018, PCB 14-15, paragraphs 9-15
14 In his second affidavit, sworn 8 April 2019, the plaintiff swore:
“… on Sunday 31 March 2019, I had attended at the Forrest Road Medical Clinic in Lara due to back pain. I had experienced worse-than-usual back pain on Friday 29 March which continued. I had had a massage at a Chinese massage shop at the Corio Village Shopping Centre on Saturday 30 March, which did not help. I attended the Forrest Road Medical Clinic on Sunday 31 March 2019 and saw Dr Loke Tang there. He gave me a prescription for Panadeine Forte and a medical certificate for the time off work from 31 March to 2 April 2019. I then returned to the same clinic on Tuesday 2 April 2019 and saw Dr Dhandapani Ponraj and was given a new certificate for time off work to 5 April 2019. I have been taking one or two Panadeine Forte tablets per day since 31 March. I have not taken any today as it makes me feel a little drowsy, even though I am still in the same pain I have been in since last Friday. I plan to take Panadeine Forte when I get home. I am hopeful that this episode will resolve as previous flares have resolved.”[5]
[5]Exhibit “A”, affidavit sworn 8 April 2019, paragraph 2
15 Further, the plaintiff swore:
“I have also attended Forrest Road Medical Centre on a few occasions in the past few months for management of my ongoing depression and associated medication.
I last saw my general practitioner Dr Jabbapour in Ballarat on 5 February 2019. This was to get the result of an MRI he had referred me for in December 2018 because of my ongoing chronic back pain. He told me the MRI showed no significant further changes from the previous one in 2015, and he did not comment on whether any further treatment was warranted. He did not refer me to any specialist at that time.
I refer to paragraph 11 [of] my first affidavit and say that subsequent to my treatment with Dr McCoy, he referred me for a ‘Mindfulness’ program at Geelong Private Hospital. I attended there in June 2016. There were several sessions over the course of a few weeks, with a psychologist Dr Tanya Gibbie. This did not result in a resolution of my pain.”[6]
[6]Exhibit “A”, affidavit sworn 22 March 2018, PCB 12-15, paragraphs 4-16
16 The plaintiff also swore that he had two previous episodes of back pain in 2001 and 2005 to the following effect:
“Following a conference with my legal representatives this morning, I have been reminded of a previous instance of back pain in 2001 that occurred when I was an apprentice carpenter working for Group Training Pty Ltd (now called ‘G Force Recruitment’). I recall now that I had experienced some pain in my lower back after lifting a doorframe on a building site in Melbourne. I saw my family general practitioner Dr Giulio Notini at Roslyn Road Medical Centre in Highton. I understand that I had about one month off work before I got back to work and moved on with my apprenticeship. I understand that I received weekly payments of compensation for a month before returning to work and continuing with my apprenticeship. I do not specifically recall the details of the time I took off. My memory of this time is very vague and in fact I had no independent recollection of it until this morning.
I further understand that Dr Notini’s clinical notes show an episode of back pain in 2005, when I was working for Oak Park Constructions on the construction site for Barwon Prison. I recall working at Margoneet Prison at the time, but I have only a vague recollection of back pain. I do not recall taking time off work for this injury or seeing Dr Notini.”[7]
[7]Exhibit “A”, affidavit sworn 22 March 2018, PCB 12-16, paragraphs 6-17
Consequences
17 In his first affidavit, the plaintiff swore:
“I continue to suffer from constant pain in my lower back. I continue to take the Lyrica medication to help manage the pain. The pain is always there. At times the pain is severe. In addition to the back pain I also suffer from a constant feeling of pins and needles in both of my feet. I also get occasional shooting pains going down by right leg.
The pain in my back gets worse if I sit or stand in one position for too long. Some days are worse than others. My back pain can be unpredictable. I have to shift around a lot to try to get comfortable. The pain can also get worse with prolonged walking and with prolonged driving.
My back pain severely limits my activities. I now have to avoid any activities which involve heavy lifting or repetitive strenuous use of my back. I struggle with particular movements, in particular getting up from a bending position. Twisting movements can aggravate the pain.
My back pain affects my ability to sleep at night. The pain wakes me up through the night. I can’t remember the last time I have slept through a night. I now sleep with a pillow between my legs to try to stop twisting in my sleep.
Due to my back injury I am not restricted in relation to the chores around the home and garden. I can still do the lighter chores and the cooking and mowing with a ride-on lawnmower but I do struggle with these chores due to my back pain. I rely upon my father for help in the garden with the heavier chores.
Before suffering my back injury I enjoyed four-wheel driving, motorbike riding and playing golf. I would got four-wheel driving or motorbike riding about once a fortnight. I would play golf maybe once every couple of months. Since suffering my back injury I have not tried riding my motorbike or playing golf because these activities would put too much strain on my back. Since suffering my back injury I have tried four-wheel driving but it aggravated my back pain and so I no longer do this.
…
My back injury has had a devastating effect on my employment. I believe that my back injury has destroyed my ability to work in the construction industry or as a carpenter because these jobs involve too much physical strength and stamina. Due to my back injury I was completely off work between November 2014 and February 2018. In February 2018 I began working on a casual basis as a truck driver in an automatic truck for Kelly Logistics. My work hours have varied each week. I am keen to give this work a go and to see if I can sustain it. This work does not involve any manual handling, just truck driving. Given my ongoing back problems, I am very concerned about my ability to keep working. Before suffering my back injury I was earning about $1200 per week when I was earning some overtime.”[8]
[8]Exhibit “A”, affidavit sworn 22 March 2018, PCB 16-18, paragraphs 16-22
18 As to his current employment, the plaintiff swore:
“My employer informed me last week that I must provide a medical certificate clearing me for work before I can return to work. I have therefore made another appointment with Dr Ponraj tomorrow to see whether I am able to return to work. However, I intend to continue working as long as I am able to despite my pain.”[9]
[9]Exhibit “A”, affidavit sworn 8 April 2019, paragraph 3
General practitioner’s clinical notes
19 The clinical notes of Dr Jabbapour of the TriStar Medical Group were tendered in evidence.[10] Attendances with respect to the lower back included the following:
[10]Exhibit “P”
“Thursday October 25 2018
…
History:
Chronic LBP, it has been mostly refractory to many conservative treatments.
…
Has been driving trucks 4 times a week and more or less coping.
…
Diagnostic imaging requested MRI lumbar spine
…
Bone scan/SPVCT CT.”
“Wednesday 4 July 2018
…
Needs scripts
lexapro 20 mg
…
since 2016
good work
…
Psych: Poor sleep. No early morning wakening. Normal mood. No irrational fears. No panic attacks. No suicidal thoughts.
side effects, appetite increased ,weight is [s]table.
…”
“Friday March 23 2018
…
Has come for a new WCC”
“Monday February 19 2018
…
Has come for a WCC,
No new issues,
No improvements wither,
Continues to swim,
Mood is stable.
Examination
…
Back: lumbar,
not red, not swollen, not hot, tender restricted ROM, restriction present.”
“Thursday January 18 2018
…
Needs a WCC,
no new changes either, continues to swim
… ”
“Monday December 18 2017
1 - Needs new WCC,
no new issue,
But still has the same pain and restricted ROM.
The mood is fine
Has panel in Jan for decision.
…
Management:
Continue the swimming and physiotherapy,
Simple analgesia,
Monitor symptoms.”
“Monday November 20 2017
…
1 – Needs a new WCC,
… ”
“Monday October 23 2017
…
Has come for a WCC,
No new issues,
Seen at the medical panel,
A percentage of disability granted as mentioned.
Continues to swim
Mood is fine,
…”
“Monday August 28 2017
…
Has come for a new WCC,
No new issues,
Mood is fine,
But the back pain is the same as before,
Continues to swim,
Mentions no improvement.
Will see a neurosurgeon next month,
…”
“Tuesday July 18 2017
…
1 – Need a new WC cert
Mentions he has had limited improvement with exercise
Has used TENS as well but with temp results.
Otherwise will continue … [the] analgesic and exercise.
…”
“Thursday June 8 2017
…
History:
1- Mentions some flare up to the back after coughing for a few weeks,
…”
“Tuesday April 18 2017
Has come for a review,
No issues,
But still has pain,
Has … [had] some massage
…
Otherwise all treatments have been stopped by WC.
No new issues either.
No new depression.
Psych: No suicidal thoughts.
…”
20 Similar consultations are noted on 14 March 2017, 24 February 2017, 23 January 2017, 12 December 2016, 26 October 2016, 4 October 2016, 31 August 2016, 1 August 2016, 11 July 2016, 25 May 2016, 10 December 2015, 18 November 2015, 15 October 2015, 17 September 2015, 12 August 2015, 30 July 2015, 28 May 2015, 30 April 2015, 9 April 2015, 16 March 2015, 23 January 2015, 17 January 2015, 24 November 2014, 27 October 2014 and 13 October 2014, back to 27 March 2014.
21 Also in evidence were the clinical notes from the Forest Road Medical Centre for the period 25 August 2018 to 2 April 2019,[11] wherein the plaintiff was treated for back pain and Depression.
[11]Exhibit “Q”
22 The defendant tendered in evidence clinical notes from the Roslyn Medical Centre in Highton[12] for the purposes of highlighting the episode of low back in 2001 and also in 2005. Within this document, there is one relevant consultation on 1 March 2005, with respect to having two days off work with back pain.
[12]Exhibit 1
Identifying the physical injury
23 On 23 May 2017, by way of notice, the WorkCover insurer accepted liability for a lower back injury arising out of the employment,[13] but based on an examination by Dr David Elder on 15 May 2017, declined to assign any degree of impairment. Accordingly, the matter was referred to the Medical Panel on 2 October 2017.[14] Therein, the Panel took a consistent history of injury and treatment. The plaintiff also gave a history of the consequences of his back injury consistent with his affidavit material referred to. In particular, the Panel noted radiological reports as follows:
[13]Exhibit “C”
[14]Exhibit “D”
· “CT scan of the lower thoracic and lumbosacral spine, dated 28 March 2014, which described generalised degenerative changes, including disc degeneration with associated bulging throughout the lumbar spine and facet joint arthropathy at the two lower lumbar levels;
· MRI scan of the lumbar spine, dated 10 March 2016, which described disc dessication (sic) and bilateral facet joint osteoarthropathy at the L4/5 level, slightly more advanced on the right than on the left;
· MRI scan of the lumbar spine, dated 23 September 2015, which described minor disc bulges at the L3/4 and L4/5 levels and concluded that there was “No evidence of neural compromise throughout the lumbar spine”; and
· CT scan of the lumbar spine, dated 2 December 2016, which described an annular disc bulge at L4/5.
… .”[15]
[15]Exhibit “D”, PCB 48-49
24 I also note that on examination, the Panel noted the presence of a transient paraspinal muscle spasm in association with lateral flexion to the right.[16] By way of diagnosis:
“The Panel concluded that the worker is suffering from a dysfunction of the lumbar spine, with referred symptoms to the right lower limb but without radiculopathy following an unresolved soft-tissue injury on a back ground (sic) of pre-existing, constitutional lumbosacral spondylosis, attributable to the accepted lower back injury with a designated injury date of 27 March 2014.
The Panel noted the duration of the worker’s symptoms and, based on its collective expertise and experience, the Panel considered that notwithstanding the progressive nature of the worker’s underlying constitutional lumbosacral spondylosis, for the purposes of a permanent impairment assessment his physical medical condition arising from the accepted lower back injury has stabilised.”[17]
[16]Exhibit “D”
[17]Exhibit “D”, PCB 49
25 It should be noted that the Panel specifically chose to disagree with the assessment of Dr Elder referred to above.[18]
[18]Exhibit “D”, PCB 51
26 The plaintiff tendered in evidence ten separate radiological investigations of the lumbar spine between 28 March 2014 and 17 December 2018.[19]
[19]Exhibit “E”
27 The MRI scan of the lumbar spine, dated 17 December 2018, reported back to the treating general practitioner, Dr Jabbarpour, to the following effect:
“Clinical Indications: Chronic low back pain, mostly refractory to many conservative treatments. … .
…
Comment: Early multilevel lumbar spondylosis as described, with shallow diffuse posterior disc protrusions narrowing the lateral recesses at L3/4 and L4/5 with potential contact and impingement of the descending L4 and L5 nerve roots respectively. No high grade central canal or neural exit foraminal narrowing.”[20]
[20]Exhibit “E”, PCB 65
28 Thereafter, Dr Jabbarpour reported to the plaintiff’s solicitors on 8 January 2019.[21] He stated, inter alia:
[21]Exhibit “G”, PCB 76
“… His pain unfortunately has remained refractory to treatments such as analgesics, physiotherapy, pain management program and local injections so far.
Furthermore, Mr McPhee is affected by a chronic history of depression which is contributed by his chronic pain condition. Psychologist referrals through mental healthcare plans have been made for this condition and Mr McPhee is receiving and antidepressant currently.
…
… Mr McPhee is working as a driver at the moment and seems to cope with the job more or less; however, his return to a job, similar to his previous occupation (excavators/heavy lifting … etc) is unlikely.”[22]
(sic)
[22]Exhibit “G”
29 The plaintiff tendered in evidence various medical reports from treating practitioners, including Dr Jabbarpour,[23] Dr Diarmuid McCoy,[24] specialist pain medicine physician, Dr Alex Aliashkevich,[25] Dr Symon McCallum,[26] Dr Tanya Gibbie,[27] clinical and health psychologist, undated, and a physiotherapy management plan dated 10 November 2014.[28] All practitioners refer to an organic back condition which was refractory to treatment and with resultant psychological consequences.
[23]Exhibit “G”
[24]Exhibit “H”
[25]Exhibit “J”
[26]Exhibit “K”
[27]Exhibit “L”
[28]Exhibit “M”
30 In particular, Dr Symon McCallum, pain physician and specialist anaesthetist, reported back to treating neurosurgeon, Dr Aliashkevich, on 14 October 2014.[29] At that time, the plaintiff was having physiotherapy and remedial massage. He had tried Endone in the past but it did not help. He was taking Lyrica, 75 milligrams twice a day, which was helping him to sleep. His functional status at that stage was that he was a truck driver and was currently doing a return to work four hours a day where he washes the trucks. His sleep was poor and he does not nap. He needs help putting on his shoes and socks. Driving short distances is okay.[30] Investigations had shown:
“The MRI shows L4/5 facet joint arthropathy and L4/5 disc degeneration. The CT shows the facet joint arthropathy extends to L5/S1.”[31]
[29]Exhibit “K”, PCB 88
[30]Exhibit “K”, PCB 88
[31]Exhibit “K”, PCB 89
31 Dr McCallum’s diagnosis was:
“I think he has got facet joint arthropathy due to his workplace accident, which is causing considerable muscle spasm.”[32]
[32]Exhibit “K”, PCB 89
32 The plaintiff was given prescriptions for analgesia and he was asked to start swimming and doing hydrotherapy and Pilates or yoga. I note in the general practitioner notes earlier that he had continued to swim. Dr McCallum stated:
“… I have booked him in for medial branch blocks at L4/5 and L5/S1 bilaterally … .”[33]
[33]Exhibit “K”, PCB 89
The Defendant’s medical material
33 The plaintiff was first examined by rheumatologist, Dr Roy Karna, who reported on 3 October 2017.[34] He was provided with the clinical records of the TriStar Medical Group (Dr Jabbarpour). He noted from the referral material that an initial CT scan done on 26 March 2014 suggested:
“… ‘diffuse minor annular disc bars of the lower three levels, minimal narrowing of the lateral recesses with no nerve root displacement’ … ‘Minor left facet joint changes on the left side at L4/5 bilaterally at L5/S1 were’ also noted … .”[35]
[34]Exhibit 2
[35]Exhibit 2, Defendant’s Court Book (“DCB”) 2
34 The plaintiff’s current medications included Lyrica, Panadeine Forte and Lexapro.[36] With respect to the investigations, Dr Karna enclosed copies of the CT scan of 28 March 2014, and an MRI scan of 13 May 2014. He noted that there were minimal degenerative changes which were most likely age concordant and certainly no neuro-compressive legions seen.[37] Dr Karna thought there were no physical findings of ongoing structural musculoskeletal injury and he thought his examination revealed features of abnormal-illness behaviour.[38] He believed that the plaintiff had a resolved soft-tissue injury of the lower back. He did not seem to comment, however, as to whether the degenerative changes, assuming they were age related, had been aggravated or rendered symptomatic by the work described. However, he accepted that the plaintiff’s initial condition of the soft-tissue injury to the lower back was work related but had now resolved. He did not say when that condition resolved and what evidence there was to support the resolution.
[36]Exhibit 2, DCB 3
[37]Exhibit 2, DCB 4
[38]Exhibit 2
35 The defendant then had the plaintiff examined by Dr Michael Baynes, occupational physician, who reported on three different occasions, being 28 November 2017, 25 May 2018 and 29 May 2018.[39]
[39]Exhibit 3
36 On the first occasion, after taking a relevant history, Dr Baynes reported that the plaintiff stated there had been no improvement in his back pain over the past three years. He advised that he had continuous lower back pain that is across the lower back, with intermittent pain into both legs on and off. He had stiffness in the back and advised coughing or sneezing will increase his back pain. He had pins and needles down both legs and advised that some days the pain is so bad that he has to lie down. He advised that the pain ranges from 7 to 10 up to 9 to 10 out of 10.[40] Dr Baynes noted:
“A[n] MRI scan of the lumbar spine, performed on 13/5/2014, reported minor loss of signal consistent with early desiccation of L4/5 disc. The cord terminates at L1 and the cauda equina have normal appearance. … There is some reactive change in the lumbosacral and L4/5 facet joints slightly more prominent at L4/5 on the right. No specific cause of the thoracolumbar pain is identified.”[41]
[40]Exhibit 3, DCB 7
[41]Exhibit 3, DCB 9
37 Dr Baynes’ assessment was:
“… [The plaintiff] is suffering from chronic lower back pain with the cause of the pain being unclear. There is some evidence of degenerative change in the lower lumbar discs and the back pain is likely mechanical in nature … There is some evidence of abnormal illness behaviour with positive Waddell’s signs signifying centralisation of pain.”[42]
[42]Exhibit 3, DCB 8
38 Dr Baynes considered that the plaintiff was not fit for pre-injury duties, but was fit for alternative duties where there is no lifting greater than 5 kilograms and no lifting from below knee height or above shoulder height. He should not work with constrained postures and should be able to rotate his postures. He believed he was fit to work for twenty-five to thirty hours per week with a progressive increase in hours with work hardening.[43] I consider these restrictions would relate to a physical injury.
[43]Exhibit 3, DCB 10
39 In his second report, dated 25 May 2018, Dr Baynes identified some alternative employments that he thought the plaintiff was capable of.
40 In his third report, dated 29 May 2018, Dr Baynes reported the plaintiff advised that there had been no change in his condition since the last review in November 2017.[44] His back pain was continuous in nature and affected more the right side than the left side. The pain would vary from day to day and moves around somewhat.[45]
[44]Exhibit 3, DCB 21
[45]Exhibit 3, DCB 21-22
41 As to the nature of the injury, Dr Baynes reported that the plaintiff:
“… is suffering from chronic lower back pain although the cause of the pain is unclear but likely mechanical in nature. There is some evidence on previous radiology of degenerative change in the lower lumbar discs. There is no objective evidence of radiculopathy. Again, there was minor evidence of abnormal illness behaviour with positive Waddell’s signs suggesting some centralisation of pain.”[46]
[46]Exhibit 3, DCB 23
42 Once again, Dr Baynes identified a number of lighter work alternatives.
43 Finally, the defendant had the plaintiff examined by orthopaedic surgeon, Mr Michael Dooley, who reported on 29 June 2018.[47] Mr Dooley took a consistent history and noted that the plaintiff was now working as a truck driver, carrying out variable hours. He did not have to load or unload goods.[48] He complained of ongoing lower back pain that can vary in its intensity. The plaintiff noted he had back pain at night and could carry out light household chores and home-maintenance duties. He was no longer able to engage in four-wheel driving and he could no longer ride dirt motorbikes. He also reported that he had become depressed in time and that he had received treatment for this.[49]
[47]Exhibit 4
[48]Exhibit 4, DCB 21
[49]Exhibit 4, DCB 22
44 Mr Dooley noted the CT scan of the lumbar spine on 28 March 2014, reporting diffuse annular disc bulge in the lowest three lumbar levels and also noted an MRI scan of 13 May 2014, reporting some degeneration of the L4-5 level.[50]
[50]Exhibit 4, DCB 23
45 Mr Dooley considered that, based on history, the plaintiff could have sustained soft-tissue injuries to the lumbar spine. Further:
“… these may have involved some musculoligamentous damage and could have involved some aggravation of underlying degenerative disc disease … .”[51]
[51]Exhibit 4, DCB 23
46 Mr Dooley went on to say:
“… It is now over four years since the episode of March 2014. Mr McPhee reports constant ongoing low back pain. He notes paraesthesia affecting the soles of his feet. He describes significant disability.”[52]
[52]Exhibit 4, DCB 23
47 Nonetheless, Mr Dooley thought there had been a psychological reaction to his situation that was influencing his ongoing symptoms.[53] Accordingly, he stated:
“… From an orthopaedic point of view only, I believe that Mr McPhee has a physical capacity to carry out light physical work and clerical duties. For his overall well being (sic), I believe it is very important that he returns to suitable work.”[54]
[53]Exhibit 4, DCB 23
[54]Exhibit 4, DCB 23
Findings
48 One, despite searching cross-examination by Senior Counsel for the defendant, I believe that the plaintiff presented as a reliable witness and a witness of truth, who was doing the best to answer the questions.
49 Two, I believe he was a somewhat stoic individual who had taken on a lighter job of truck driving without any loading or unloading in order to support his children. I consider that the evidence discloses the plaintiff has suffered chronic lower back pain since his initial work injury and the mechanism probably being aggravation of pre-existing degenerative changes in the lumbar spine, which, having been rendered symptomatic, have not returned to a pre-injury condition. I consider this is consistent with the opinions expressed by Mr Dooley above.
50 Insofar as there has been a psychological reaction to the physical injury, I consider that the substantial cause of his disability is the physical injury.[55] With respect to the latter case, I consider that the physical injury satisfies the threshold calculus in step one of the formula laid down by Maxwell P, such that step two does not need to be considered.
[55]Jayatilake v Toyota Motor Corp Australia Limited (2008) 20 VR 605 and Meadows v Lichmore Pty Ltd [2013] VSCA 201
51 Further, the level of disability in terms of the pain suffered, and the treatment incurred, satisfies the calculus laid down in Haden Engineering Pty Ltd v McKinnon.[56]
[56](2010) 31 VR 1 at paragraphs [11]-[16]
52 It follows that I am satisfied that the impairment of the plaintiff’s lumbar spine, consequential upon the work injury in relation to each of pain and suffering when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as being “more than significant or marked” and as being “at least very considerable”.
53 Leave will be granted for the plaintiff to issue proceedings at common law for pain and suffering damages.
54 I will hear the parties as to any consequential orders.
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