Meade v VWA

[2019] VCC 1375

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-19-01151

JAKEB MEADE	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2019
DATE OF JUDGMENT:	5 September 2019
CASE MAY BE CITED AS:	Meade v VWA
MEDIUM NEUTRAL CITATION:	[2019] VCC 1375

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:             Serious injury application - injury to lumbar spine - pain and suffering
Legislation Cited:     Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:            Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment:                 Leave granted to the plaintiff

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram QC Mr B Anderson	Slater & Gordon
For the Defendant	Mr J Batten	IDP Lawyers

HER HONOUR:

1 The plaintiff, who is 26 years old, applies under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the lumbar spine suffered on 20 August 2015 while operating a loader at work.[1] The plaintiff says that as a result of that incident he suffered back pain and left leg pain which persisted and which required surgery on 13 November 2015 by way of an L5/S1 laminectomy, discectomy and rhizolysis. Whilst the surgery was technically successful, the plaintiff continues to suffer constant back and left leg pain as well as restrictions which limit his activities at work, interfere with his sleep, require ongoing medication, and have resulted in an inability to continue playing football at the high level he played prior to his injury. Given his age, and the medical opinion to the effect that his back is likely to deteriorate in the future, may result in arthritis or the need for further surgery, and may limit his future occupational choices, the plaintiff submits that the pain and suffering consequences of his work-related lumbar spine injury meet the narrative test for serious injury.

[1]The plaintiff was employed by Titan Willows Pty Ltd (‘the employer’).

2       The defendant relies on the absence of a contemporaneous report to the treating chiropractor of a work-related injury, and says that causation has not been established. In addition, the defendant relies on the medical opinion (from Dr Wilson[2] and Mr Awad[3]) to the effect that the injury suffered was an aggravation of pre-existing spondylosis and says that the consequences now complained of after successful surgery are referable to underlying degenerative changes. In relation to the plaintiff’s credit, the defendant points to the failure in his affidavits, or in consultations with treating and assessing doctors, physiotherapists and chiropractors, to mention a subsequent work-related incident (albeit with a subsequent employer) in 2018, which affected the back and caused the plaintiff to miss ten weeks of football. Finally, the defendant submits that, having regard to his retained capacity to work full-time without time off work, to play football weekly, and given that he takes some medication intermittently, the pain and suffering  consequences relied upon do not meet the narrative test for serious injury.

[2]DCB, p 18.

[3]PCB, p 63.

The hearing

3       The plaintiff gave evidence and was cross-examined. The plaintiff’s treating chiropractor, Dr Karen Forsyth, gave evidence by video-link from Warrnambool and was cross-examined. The parties tendered court books. I have considered all of the evidence relied upon as well as the submissions of counsel.

The plaintiff

4       The plaintiff grew up in Terang and completed Year 12 in Camperdown. He then worked as a labourer, dairy technician and as a heavy machinery operator before commencing employment with the employer in early January 2014. He was employed as a general labourer and also to perform heavy equipment duties.

5       On 20 August 2015 he was at work operating a loader in a quarry. The plaintiff alleges that the loader had a defective right-sided mirror and a poorly sprung seat. He was seated in a twisted position on the seat so that he could see behind him, and suffered a jolt to the back when the loader went over a bump. He felt pain in his back and down his left leg. He went to work the next day and reported his symptoms. He consulted his football trainer that evening who advised him to rest. He was in severe pain at work the following day.

6       The plaintiff had some days off work after 20 August 2015. He attended his chiropractor, Dr Karen Forsyth, on 22 and 24 August 2015. Dr Forsyth confirmed that when she saw the plaintiff on 22 August he complained of lower back pain and pain down the left leg to the foot which began on Thursday[4] “before football training” and confirmed that she did not question him as to the exact timing of the onset of pain or whether there was an incident to report.[5] In cross-examination, the plaintiff agreed that he did not tell Dr Forsyth that the pain had come on during work at the quarry.[6] Dr Forsyth’s notes record that the plaintiff felt “bit tight in hamstring on Mon[day] night”[7], being about three days prior to the incident. She stated that his symptoms (apart from the muscle tightness in the hamstring) were consistent with what she thought was the problem; namely, radicular radiation down the left leg as a result of an injury to the disc.[8] She indicated that she had never treated the plaintiff before for those types of symptoms.[9] There was an attendance in 2009 for lower back pain with no pain down either leg, which resolved after one visit.[10] There was another visit in 2010, and one in 2012 for lower back pain.[11] She confirmed plain x-rays of the plaintiff’s lumbar spine were taken but she was unable to produce them.[12] She saw the plaintiff three times in August 2015 for back pain and once in September 2015 for a complaint of left calf pain.[13] She had not been provided with any medical reports stating that the plaintiff had underlying degenerative spondylosis prior to August 2015 and stated that in her experience it would be very atypical for such a condition to be found in a 22 year-old.[14]

[4]Which was 20 August 2015.

[5]T47.27.

[6]T33.29.

[7]See clinical note dated 22 August 2015 at DCB, p 5.

[8]PCB, p 80.

[9]T49.10.

[10]T52.21.

[11]T50.20.

[12]T56.13.

[13]See clinical notes at DCB, pp 7.

[14]T64.4.

7       The plaintiff attended his general practitioner, and was referred to Mr Franco Cavalieri for physiotherapy treatment which commenced on 9 September 2015. On examination, Mr Cavalieri noted[15] an absence of a left calf reflex, an inability to perform a left heel raise, and signs and symptoms “very consistent with an acute low lumbar disc prolapse with S1 nerve root irritation probably compression”.[16] In his letter to Terang Medical Centre of 10 September 2015, Mr Cavalieri noted a report from the plaintiff as follows:

…Jake who 3 weeks ago felt a sharp pain in his left buttock and posterior thigh and leg whilst operating an excavator in a quarry.[17]

[15]PCB, p 50.

[16]PCB, p 55.

[17]PCB, p 47.

8       The plaintiff obtained no lasting relief from the physiotherapy treatment. Mr Cavalieri requested that the plaintiff be referred by his general practitioner for an MRI scan.

9       The MRI scan performed on 14 September 2015 was reported[18] with the following conclusion: “Prominent left paracentral disc extrusion at the L5-S1 level with left S1 impingement”.

[18]PCB, p 43.

10      On 18 September 2015, the plaintiff lodged a Worker’s Injury Claim Form in respect of a “bulging disc lower back resulting in nerve pain and no reflex action in lower calf”, stating that the injury occurred when he was “operating a loader in quarry and went over bump and done the disc” on 20 August 2015.[19]

[19]PCB, p 27.

11      The Employer Injury Claim Form dated 18 September 2015[20] noted that the plaintiff reported suffering a back injury on 20 August 2015 while driving a loader, and that the injury was reported, at an unknown time, as follows: “informed director he had a sore leg”. [21]

[20]PCB, p 29.

[21]PCB, p 30.

12      On 28 February 2018,[22] the insurer accepted liability in respect to a claim for an impairment benefit for the low back injury on the basis that it encompassed the referred pain in the left leg. The plaintiff received a lump sum impairment benefit for a whole person impairment of 10%.

[22]PCB, p 33.

13      The plaintiff was referred to a neurosurgeon, Mr Michael Wong, and consulted him on 13 October 2015. Mr Wong noted[23] that the MRI result demonstrated “a large left-sided L5/S1 disc prolapse with compression of the left S1 nerve root”. He recommended that the plaintiff undergo a left-sided L5/S1 laminectomy, discectomy and rhizolysis.

[23]PCB, p 56.

14      The WorkCover Authority authorised the surgery, which took place on 13 November 2015. At the six-week review post-surgery, Mr Wong reported[24] that the plaintiff had recovered well, that his previous low back and left leg pain had “completely resolved”, and that he had stopped his analgesic medications.

[24]PCB, p 58.

15      The plaintiff said in his first affidavit sworn 24 October 2018[25] that he continued to suffer from ongoing back pain, particularly when seated for long periods, and also suffered from intermittent cramping in his left calf region.[26] He was restricted in sitting or driving for long periods. As a result of his back injury he was no longer able to play football at a senior level, but continued playing to give himself some exercise. He continued to have muscle wasting in the left leg despite his efforts to bulk up that muscle. He had to give up playing cricket at club level.

[25]PCB, p 5.

[26]PCB, p 8.

16      In his second affidavit sworn 31 July 2019,[27] the plaintiff gave further details of the consequences of his back injury. He has constant lower back ache, varying in intensity from two out of ten to four or five out of ten. He continues to suffer cramps and spasms in his left calf throughout the day, which worsen as his back pain worsens. His back pain is aggravated by working, and by prolonged sitting or standing.

[27]PCB, p 16.

17      After his surgery, he returned to work in January 2016 and built up gradually to full-time normal duties for about two weeks before resigning his employment so that he could travel overseas.[28] After returning to Australia he moved to Melbourne and obtained different work for a few months before starting work in April 2017 as an excavator driver/machine operator with his current employer, who is aware of his back injury. He avoids heavy lifting and labouring work wherever possible. He suffers increased back pain as well as increased cramping and spasms in his left leg at the end of each shift as a result of prolonged sitting in the excavator. He believes that his back injury restricts him from performing repetitive strenuous manual labour, and that he is therefore more restricted in his employment options and more vulnerable in the workplace.

[28]PCB, p 17

18      During 2017, he had some physiotherapy treatment at Mr Wong’s rooms.[29] Since 2018, he has had physiotherapy from Mandy Willis. He also attended a pain management specialist, Dr Christine Wong, on a few occasions in 2017 and 2018. He obtains prescriptions from his general practitioner at the Hawthorn East Medical Clinic for Naproxen and Valium to manage his back pain and cramping in the left leg.

[29]PCB, p 18.

19      The plaintiff stated that his back injury has had a serious impact on his ability to play football at the standard or intensity he played at prior to his injury.[30] Prior to his injury he played 15 senior games for the Terang Mortlake Football Club in the Hamden Football League, and had been selected to train for the interleague competition. After his back injury, he could not play football during 2016. In 2017, he tried to continue playing for the same club, but found it difficult to drive from Melbourne for the games, and played at a much lower standard. In 2018, he played a few games for the team in the Reserves, played two games in the Seniors, then found that his back pain was being aggravated by playing, and that he performed inadequately. He did not play football for the middle part of the year and returned to the Reserves for the finals. In 2019, he has been playing in a low division of the amateur league, which he rates as three out of ten in terms of its skill level. He has missed four games due to back pain. He loves football so much that he wants to keep playing, but is upset that he can no longer play at anywhere near his pre-injury level and potential.

[30]PCB, p 18.

20      At the hearing, the plaintiff said that when he played for Terang Mortlake Football Club he was paid $300 per game[31] and he would rate the level of that competition is being about eight and a half or nine out of ten.[32] He aspired to play at VFL level. However, when he played football in 2018 he was not paid.[33]  He continues to work full-time, driving trucks and other machinery, and enjoys it. He takes Naproxen at least twice per week.[34] He saw his doctor a few months ago because of back pain and trouble sleeping.[35] He has back pain after playing football and finds that he recovers much more slowly from his games than prior to this back injury.

[31]T13.7.

[32]T41.30.

[33]T13.16.

[34]T38.29.

[35]T38.16.

21 He said that prior to August 2015, his consultations with Dr Forsyth in relation to the back were not for the lower back but for the upper back,[36] and in any event were for relatively minor pain, of one to two out of ten,[37] and did not require any time off work, whereas when he saw her in August 2015, his low back pain was nine out of ten[38] and he required time off work.  He said that he took two days off work when his back pain flared up in 2018, and that the pain subsided.[39] He said that his ongoing back pain continues to be as it was after surgery.[40]

[36]T40.12.

[37]T40.4.

[38]T39.31.

[39]T44.13.

[40]T44.3.

22      He said that he has continued to follow Mr Wong’s advice in relation to his back, but that work continues to aggravate his back pain.[41]

[41]T44.2.

Lay evidence

23      The plaintiff’s family friend and senior football coach, Matthew Irving, provided an affidavit in which he stated that prior to his injury, the plaintiff was a very talented and skilled footballer, playing in a league which was rated about fifth in Victoria, and often included former AFL and former VFL players.[42] He was selected to be in the interleague squad, which consisted of the best players in country football. In 2015, but for his injury, he would have finished strongly in the best and fairest awards for his club. After his surgery, the plaintiff played football at a much reduced level. He lacked power, could not pick up the ball as he used to, could not kick as far and ran differently.

[42]PCB, p 20.

24      The plaintiff’s father, Gerard Meade, provided an affidavit in which he noted that the plaintiff’s passion has always been playing football, that he was a talented player prior to his injury and was performing among the best in his team, as well as playing in the interleague squad.[43] Since his injury, he has never been able to play as he once did, and this “has devastated him”. He is restricted in bending, ducking and weaving when he plays, and he has muscle wasting in his kicking leg. When he sees the plaintiff he finds he is often “down in the dumps” as a result of the frustration with the pain and permanent restrictions flowing from his injury and has expressed his disappointment that he has “lost an important part of himself”. He continues to work, but told his father that he has modified how he does things to avoid aggravating his back, and yet still struggles some days. Whereas before his injury the plaintiff would help with chores around the farm in Terang, he can no longer help with the calves, which he often did, because of his lifting and bending restrictions.

[43]PCB, p 23.

Medical Evidence

Treating surgeon

25      The plaintiff’s treating neurosurgeon, Mr Wong, reported on 9 August 2019[44] that when last reviewed on 11 October 2017, the plaintiff complained of intermittent low back and leg pain, and that Mr Wong recommended longer term physiotherapy, hydrotherapy and chronic pain treatment. Mr Wong diagnosed a work-related large left-sided L5/S1 disc prolapse.

[44]PCB, p 59.

26      Mr Wong considered that the plaintiff would permanently suffer a reduced capacity for employment in the future, due to restrictions in bending, lifting, twisting or stooping; pushing, pulling or lifting; repetitive pushing, pulling or lifting; overhead activities; kneeling, squatting or crouching; prolonged sitting, walking or standing; walking up or down inclines; and using step ladders. Mr Wong stated that the plaintiff’s chronic pain and restrictions would have a negative impact on his lifestyle, and that it was likely that his low back pain would deteriorate in the future, and that he would require long term physiotherapy and chronic pain treatment.

Other medical and medico-legal reports

27      On 9 October 2015, Dr John Wilson, occupational physician, reported[45] that, on the basis that the plaintiff had a history of prior back complaints being treated by a chiropractor, he was to be regarded as having pre-existing degenerative disc disease. For this reason, the diagnosis was that of an aggravation of a pre-existing disc disease of the L5/S1 intervertebral disc with extrusion impinging on the left S1 nerve root, resulting in a borderline S1 radiculopathy. On the plaintiff’s history of the onset of symptoms at work on 20 August 2015, Dr Wilson concluded that the aggravation was work-related.

[45]DCB, p 12.

28      Mr Mohammed Awad, neurosurgeon, saw the plaintiff twice at the request of the plaintiff’s solicitors. On 8 September 2017, Mr Awad reported[46] that after surgery the plaintiff continued to suffer intermittent low back pain after long or heavy work, or long periods of sitting and driving, and also intermittent left muscle cramps. He was having weekly physiotherapy and taking anti-inflammatories as required. He was unable to play football at the same level. He noted that there was no past history of symptoms suggestive of a pre-existing lumbar spine condition.

[46]PCB, p 62

29      Mr Awad diagnosed “traumatic aggravation of lumbar spondylosis causing L5/S1 disc prolapse requiring a surgical intervention”.[47] Mr Awad felt that his employment was a dominant contributing factor to the disc injury and to his ongoing pain and mild disability. He recommended that the plaintiff continue working with restrictions on lifting, repetitive bending, pushing and pulling in order to minimise further aggravation to his back. He recommended ongoing physiotherapy and pool spa therapy to ease his symptoms. He opined that the natural history of his condition was that he may require further intervention for his lumbar spine in the future.

[47]PCB, p 63.

30      On 14 September 2017, Professor Vernon Marshall, Professor Emeritus of Surgery, reported[48] to the employer’s insurer that the plaintiff had suffered a “low back strain work injury with prolapsed L5/S1 disc and motor and sensory left-sided radiculopathy affecting the left S1 nerve root” and “persisting motor radiculopathy affecting the left S1 nerve root”.[49] He considered that the injury and medical condition were consistent with the history and examination and that there was a continuing employment cause. He recommended ongoing treatment by way of physiotherapy and hydrotherapy, failing which there might be a significant deterioration in the plaintiff’s condition. He felt that the injury had not fully resolved.

[48]DCB, p 23.

[49]DCB, p 26.

31      Dr David Elder, occupational physician, conducted an impairment assessment at the request of the insurer, on 22 February 2018.[50] He noted the plaintiff reported that after surgery he felt “about 85% improved but he still has some stiffness in the low back and sometimes feels ‘jammed up’ and he still has left calf wasting and he has noted at the end of the day the muscle twitches”.[51] Dr Elder diagnosed “mechanical low back pain with clinical evidence of radiculopathy, which has been surgically treated but with no sequelae of the scarring”.[52]

[50]PCB, p 74.

[51]PCB, p 75.

[52]PCB, p 76.

32      On 12 July 2019, Mr Awad reported[53] a similar opinion. He felt that the plaintiff’s condition had stabilised, that the plaintiff would permanently be restricted in employment in relation to activities involving bending, lifting, twisting, stooping, repetitive lumbar spine movements or any occupation that requires sitting for too long. For this reason, he considered that the plaintiff would remain unfit for his pre-injury duties but would be fit for alternative full-time employment such as that he is currently doing. He opined that the plaintiff would also suffer permanent restrictions in his domestic, social and recreational activities, in particular, that he would never play football at full capacity. He felt that the plaintiff is at increased risk of developing arthritis and may require further intervention, including further surgery, in future.

[53]PCB, p 65.

33      On 7 August 2019, Mr John O’Brien, orthopaedic surgeon, reported[54] to the plaintiff’s solicitors that the plaintiff presented with “some restriction of lumbar movement with mild restriction of straight leg raising on the left side suggesting residual nerve root irritation although there is no current clinical evidence of nerve root dysfunction”.[55] Mr O’Brien diagnosed chronic back and left leg pain related to residual discogenic pathology. On the history given of a work related episode on 20 August 2015, Mr O’Brien concluded that employment remained a significant contributing factor to the current clinical condition. Mr O’Brien noted that the plaintiff was working full-time with restrictions but was continuing to suffer aggravation of symptoms. He felt that due to the ongoing pathology the plaintiff would be permanently unable to undertake heavy manual work and would be restricted in his general, social, domestic and recreational activities.

[54]PCB, p 69.

[55]PCB, p 72.

Findings and reasons

34      I found the plaintiff to be a very straightforward witness, who answered all questions directly. I accept his evidence as to the circumstances in which the injury occurred, and as to the pain and suffering consequences of that injury. His evidence in relation to the occurrence of the injury is consistent with the histories given to Mr Cavalieri soon after the incident and with the claim form submitted by him.

35      Given the absence of evidence of the existence of a prior degenerative condition of the lumbar spine, I put to one side the opinions of Dr Wilson and Mr Awad in that regard and prefer the evidence of the treating neurosurgeon, Mr Michael Wong, to the effect that the plaintiff suffered a frank injury on 20 August 2015 by way of a disc prolapse at L5/S1 with radiculopathy, which required surgical treatment. It is clear that notwithstanding the technical success of the surgery and the alleviation of the left leg pain, the plaintiff has ongoing symptoms which are clearly discogenic in origin and as such are to be treated as residual effects of the injury.

36      The weight of the expert evidence, which is echoed by the plaintiff’s unchallenged evidence, is to the effect that the plaintiff’s symptoms have persisted, and will permanently restrict his occupational, domestic, social and recreational activities. He is a young man, only 26 years old, with a work history in heavy employment. He was a very talented footballer who had the potential to continue playing in a highly ranked league or even to continue further.

37      I acknowledge that the plaintiff is still able to work full-time, and still plays football, albeit at a much lower standard than before.

38      However, as at the date of the hearing, and for the foreseeable future, this young man will suffer daily pain and cramps sometimes requiring medication. He is subject to restrictions in bending, lifting, twisting, pulling, pushing, sitting, and standing which will require him to perform his work duties (and any other activities)  with significant modification. He has a sympathetic employer for now, but for the rest of his working life he will have to rely on finding like-minded employers. This may considerably reduce his future occupational options. In addition, his medical prognosis is not good. There is general agreement that he will require ongoing physiotherapy and hydrotherapy. Mr O’Brien noted that his pain will continue. Mr Wong and Mr Awad indicated there is a significant risk of further deterioration of his lumbar spine condition, of arthritis, and of the possible need for further intervention, including further surgery. In turn, these matters will affect his future employment capacity. In terms of his loss of enjoyment of life, over and above his daily pain and restrictions, the plaintiff has had to give up his football ambitions.

39      Taken together, and in light of the fact that, given his young age,  the plaintiff will suffer these consequences for longer than most other people with impairments of the lumbar spine,[56] I consider that the pain and suffering consequences of his lumbar spine impairment are more than considerable when compared with other cases in the range of impairments of the lumbar spine.

[56]See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [43].

Conclusion

40      For these reasons, leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect to the lumbar spine injury sustained on 20 August 2015 during his employment with Titan Willows Pty Ltd.

41      I reserve the question of costs.