Meaker v Victorian WorkCover Authority
[2020] VCC 459
•20 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-04912
| MATTHEW WALTER MEAKER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March 2020 | |
DATE OF JUDGMENT: | 20 April 2020 | |
CASE MAY BE CITED AS: | Meaker v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 459 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to spine – pain and suffering – loss of earning capacity – causation – aggravation
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; AG Staff Pty Limited; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] 34 VR 309; Richter v Driscoll [2016] VSCA 142; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436
Judgment:Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Ms R Kaye | Thomson Geer |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with Unidex Consulting Proprietary Limited (“the employer”) on 10 March 2012 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the spine.
5 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.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By ss(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”.
9 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.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[2] and in reaching my conclusions.
[1](2005) 14 VR 622
[2](2012) 34 VR 309
11 The primary issue in this application is causation, with counsel for the defendant submitting the injury on the said date was a temporary aggravation which had resolved, and later events and other conditions contribute to the plaintiff’s current presentation. There were also issues as to range and the plaintiff’s current work capacity.[3]
[3]Transcript (“T”) 5
12 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is fifty-six, having been born in January 1964. He is presently in receipt of the Disability Support Pension.
14 After Year 10, the plaintiff completed a five-year apprenticeship as a farrier to Level 3. He then worked for about twenty years as an employee farrier, working at the Moonee Valley trots for about ten years.
15 The plaintiff also did some labouring work through labour-hire companies and at Nylex, where he operated a blow moulding machine making Eskies. He had some familiarity with how factories work. He also had some familiarity with how warehouses operated, having worked at Glassworks with the employer.[4]
[4]T31
16 Before starting with the employer in August 2011, the plaintiff worked as a general hand, doing maintenance work at the University of South Australia (“the University”).[5]
[5]T36
17 While working for the employer, the plaintiff was placed with a number of companies performing general labouring work, being sent to different places at different times.[6]
[6]T7
18 Before the said date, sometimes the employer had places to send the plaintiff and sometimes it did not; however, he was mainly employed full time, “like casual-permanent”. While he might work one day somewhere, they were “shopping him around” to find a permanent job. If a job lasted four days, then he would do that work and then ring the employer and advise the job was finished or it would advise there was work ready for him the next day. He might have one day off in a week but was mainly working on average four or five days a week on an hourly rate.[7]
[7]T11
19 As at the said date, the plaintiff was working at Glassworks as a general hand and crane operator. Before the incident, he was working five days a week, eight hours a day, and did overtime.[8]
[8]T37
Pre injury
20 The plaintiff enjoyed horse riding, driving, fishing, cricket and shoeing horses.
21 The plaintiff suffered pancreatitis and was hospitalised in May 2014 and early 2017.[9]
[9]Confirmed on 2017 CT scan
22 In February 2014, the plaintiff suffered from bilateral frozen shoulder and was referred for x‑rays and prescribed medication and recovered from same.
23 When it was suggested the plaintiff could not do manual work with his shoulders in 2014, he said he could not do anything, “with my back and my shoulders I was, yeah, I couldn’t do a thing”.[10]
[10]T25
24 The plaintiff denied his shoulders were his main problem in 2014 – “[his] back and shoulders were the problem”. He did not tell Mr Simm that year that his shoulders were his main problem. While he had not played cricket since 2012, his shoulders would have limited his ability to play cricket .[11]
[11]T25
25 The plaintiff had an inguinal hernia in late 2014.
26 When working as a farrier, the plaintiff suffered from general tiredness in his back after a day at work. On 14 August 2006, he attended Monash Medical Centre with low back pain, the hospital records detailing chronic back problems.
27 When working as a trainer, the plaintiff did not have back pain, it was a ”tired back”. He would go to work, come home, have a shower, go to bed, and the next morning he would be “perfect”. He agreed that went on for a large part of 2006. He could not recall the attending Monash Medical Centre.
28 The plaintiff suffered from some back pain in 2009 when he was living in Bacchus Marsh. As best as he could recall, he may have had an injection in his back and had chiropractic treatment for a few months. He did not miss a day’s work driving horses.[12]
[12]T22
29 The plaintiff could not recall a further incident in 2010 shoeing a horse when he felt his back pop, as noted in the Melton Emergency Department records. That was the time he had the injection and then saw the chiropractor the next day. The pain was going down to his legs and he must have been given a medication called Tramadol. He thought he was given OxyContin. It was all the one incident. He only went to Melton once.[13]
[13]T23
The incident
30 On the said date, whilst dislodging a wooden crate from a very large piece of glass, the plaintiff pushed up heavily against the load from a squatted position using force and whilst heaving the crane hard to dislodge it from the glass, suffered pain in his back (“the incident”).
31 After the incident, at the suggestion of the defendant, the plaintiff saw a general practitioner, Dr Nguyen, who referred him to physiotherapist, Ms Phillips, who treated him for about six weeks. Prior to that, the plaintiff did not have his own general practitioner. He did not have x‑rays. He then returned to normal duties and worked for three days over the next month. He was then made redundant.
32 The plaintiff was not sure whether he told Ms Phillips on 11 April 2012 that he was 80 per cent better. He could not remember. He then did not schedule another appointment with her.[14]
[14]T8
33 The plaintiff agreed that when he was certified fit for work by Dr Nguyen on 11 April 2012, he felt up to trying a return to work and that the work he was going back to would be physical labouring work.[15]
[15]T8
34 The plaintiff never had a general practitioner between April 2011 and June 2012. Dr Nguyen was a WorkCover doctor. The employer told him that he had to get a general practitioner.[16]
[16]T9
35 On his return to work after Dr Nguyen’s clearance, the plaintiff went back to machine operator duties. He could not remember the name of the companies to whom he was sent. He operated a blow moulding machine which involved pushing a button, taking the material out of the machine and putting it on a rack and “that was it”.[17] It was light work.[18] The little plastic wheels he was handling weighed about a kilogram. He had to handle them separately and was not required to lift a box of wheels.[19]
[17]T9
[18]T36
[19]T10
36 The plaintiff did not return to glass work at a different location. He could recall unloading rolls of plastic for one day somewhere near the wharves but he was not sure where, as it was quite a long time ago. The plastic items weighed about 2 kilograms.[20]
[20]T11
37 The three days’ work after the said date was in part because the employer did not have anywhere to send the plaintiff. He would take whatever work was available. He agreed that sometimes before the incident there were periods when there was not much on and that at other times it was busy.[21]
[21]T12
38 The plaintiff initially denied that between April and May 2012, he was coping reasonably with the work he was doing.[22] He then agreed he told Ms Green he was coping reasonably well and he was – “[His] brain was coping.”[23]
[22]T12
[23]T14
39 Post incident, the plaintiff denied the pain had reached a level where he could still do the work he was being asked to do by the employer. He did the work and was able to do the work he was sent to.[24] During that time, his back was sore and he was never free from pain.[25]
[24]T15
[25]T37
40 In May 2012, the plaintiff was changing a car tyre when his back popped again (“the tyre incident”). He has not been back to work since then or even tried a return to work.[26]
[26]T15
41 When it was suggested to the plaintiff the tyre incident represented a real increase or upsurge in his pain, he said it put him back to where he was originally from March, when he injured his back.[27] He denied he had actually improved with Ms Phillip’s treatment. He did not improve; he had never improved.[28]
[27]T37
[28]T15
42 After the tyre incident, the plaintiff phoned the employer and spoke to a lady who told him there was no work. He rang probably two or three times and that was it, because after the tyre incident, the human resources person turned around and said to the plaintiff, after he advised he had re-injured his back, that it was his fault. So the plaintiff phoned the lady again and she said, “Well, I don’t know what you’re going to do”.[29]
[29]T17
43 The employer did not say to the plaintiff there was no more work. They just did not ring him up after he re-hurt his back.[30]
[30]T14
44 The plaintiff has not submitted any job applications since the tyre incident or approached any other labour-hire firms.[31]
[31]T19
45 The plaintiff’s doctor told him he had had a recurrence of his back condition in the tyre incident. He told the plaintiff it was “from the original injury”.[32]
[32]T17
46 The plaintiff had further physiotherapy and some hydrotherapy. He had an MRI scan of his lumbar spine on 26 June 2012.
47 In mid 2012, the plaintiff was in pain and became stressed and depressed. He attended Monash Health in late June and again on 12 July 2012, seeking help.
48 On 22 June 2012, the plaintiff was seen at Monash Medical Centre Emergency complaining of low back pain and he was also seen by the CAT Team. Subsequently, he was seen by Jim Reid, mental health nurse, and was commenced on Avanza.
49 The plaintiff then went to live with a friend in Bacchus Marsh as he did not have any work. He was in receipt of Centrelink and had lost his job. He was not working 13 hours a day as Mr Simm recorded. He did about three hours’ light work a day around his friend’s farm to pay for his board, such as washing down, feeding and grooming horses and taking them to the track, lifting up horse gear and moving it around.
50 The plaintiff’s back continued to cause him difficulties. In September 2012, he aggravated his back condition when he was lifting some horse gear (“the horse incident”). He was not shoeing horses then and had not “been under a horse” since 2012.[33]
[33]T19
51 After the horse incident, the plaintiff was not able to go back to washing or grooming horses or any other of the light tasks he was doing, and he moved out of the property. He went back to Dr Fernando, who told him he could not do these tasks because his back was not up to it. He had a lumbar CT scan on 3 March 2013.
52 The plaintiff agreed his pain got a lot worse after the horse incident.[34] It got to the extent where it started to impact on his sleep, playing cricket with his friends and “that sort of thing”.[35]
[34]T20
[35]T21
53 In April 2015, the plaintiff saw Dr Gassin, a pain management specialist, on referral from Dr Fernando. He performed bilateral facet joint injections at multiple levels on the left side of the plaintiff’s lumbar spine. Dr Gassin abandoned the procedure because of the plaintiff’s pain level. The plaintiff was then referred for physiotherapy with Mr Moar.
54 In July 2015, Dr Fernando certified the plaintiff for a disability pension due to back pain and consequential depression.
55 As at 22 November 2017,[36] the plaintiff was still seeing Dr Fernando, who prescribed Jurnista and Axit. Previously, he was prescribed OxyContin and a Norspan patch.
[36]First affidavit
56 At that stage, the plaintiff suffered constant lower back pain, usually 6 out of 10 and on occasions as high as 10, and he had to lie in bed for a couple of days.
57 The plaintiff was not able to wear any boots or shoes with a heel and generally wore slippers, into which he put orthotics.
58 The plaintiff found it hard to stand and sit for long periods, lift heavy weights or bend over repetitively. He was not able to walk long distances. Walking aggravated his back pain, as did any form of activity.
59 The plaintiff’s sleep had been affected and at times he woke at night because of pain. He had difficulty with activities of daily living – leaning down to wash his feet in the shower or bath and pulling his socks on and off.
60 The plaintiff did as much as he could but was limited in all everyday activities. He was able to mow the lawn but had to pace himself and afterwards, his back hurt more and he needed to rest. He helped his friend and his wife with cooking and vacuuming at home, pacing himself while doing so. Daily activities were limited and he spent a lot of time watching television. Lying down regularly to rest his back gave him some pain relief.
61 Prior to the incident, the plaintiff enjoyed fishing on Westernport with his brother. His ability to fish had been restricted since the incident. He had recently gone to Perth to see his brother. When they went out on a boat, the plaintiff’s back could not handle it. It was a little bit choppy and they had to come back in.[37] The plaintiff was also no longer able to enjoy camping.
[37]T38
62 For most of the plaintiff’s life, he had worked as a farrier and in recent times, had done some shoeing for friends’ horses on a casual basis. He drove the trotters before shoeing them, enabling him to work out what should be done with their feet. He was paid about $100 a horse.
63 As a result of his injuries, the plaintiff was no longer able to engage in his trade as a farrier. He was not able to drive the horses and was also unable to lean down to shoe them. Although he was happy to get the odd bit of extra cash, more importantly, it meant he could keep up his skills. He also genuinely enjoyed the work and helping his friends. He no longer received the regular requests from friends to help them and, as a result, had lost contact with many of them. He was also losing his skills as a farrier.
64 The plaintiff previously played indoor cricket. While not doing so at the time of the incident, he enjoyed social and backyard cricket but was no longer able to play cricket because of his injuries. He was also unable to play games with his friend’s grandchildren and his social life had been affected as he did not feel like going out and being social because of the pain.
65 The plaintiff was constantly sore and in pain. His housemates told him that he was short tempered when in pain and he was concerned his relationship with them was compromised. As a result, when in pain, he often retired to the bungalow to avoid any interpersonal conflict.
66 The plaintiff was worried about his future, having only ever done manual work, and he found it difficult not to be working. He was used to the structure and routine of a workday. Work gave him a sense of purpose and a reason to get up in the morning. It got him down that he had to stop working at such a young age.
67 The plaintiff had travelled to Queensland to see his father since the incident. He had also travelled to Western Australia to see his brother and son. He found the flights very difficult, as sitting in the confined space aggravated his back pain.
68 As a result of his injuries, the plaintiff had been unable to return to employment as a labourer, the only work he had done in addition to working as a farrier. He believed he would be unable to return to any form of employment as a result of his injuries. He was not able to engage in any work requiring him to stand for prolonged periods, bend over on a repetitive basis, twist or lift heavy weights. He had no experience working in an office or in administrative work and had limited computer skills. He had planned to continue working until the retirement age of sixty-five.
69 In his supplementary affidavit sworn 23 March 2020, the plaintiff described never being free of back pain since the incident.
70 After the incident, the plaintiff was receiving certificates from his general practitioner for modified duties; however, he was eager to try and get back to normal work. At the time, he still had low back pain, and asked his general practitioner to give him a clearance, which he did.
71 When the plaintiff returned to work with the employer, he did very little work. He was sent to a number of different factories and did about three days’ work over about a month of very light work, during which time he continued to have back pain.
72 Since the incident, the plaintiff experienced a number of flare ups and still has them. The flare up with the tyre incident in May 2012 and in September 2012, when lifting some horse gear were two examples.
73 The plaintiff presently lives with his brother.
74 The plaintiff still attends Dr Fernando every six weeks. He is prescribed Jurnista, Neurontin, pantoprazole and mirtazapine. He also takes vitamin B daily. He does not like taking prescription medication and tries to stretch the Jurnista over six weeks; however, when he does not take it each day, he suffers increased pain, which is much worse in the cold weather.
75 The plaintiff does a daily home-based exercise program taught to him by his physiotherapist. He tries to walk as much as he can to manage back pain and he has a high bed to make it easier to get in and out of bed.
76 The plaintiff had a further lumbar CT scan on 12 June 2019.
77 The plaintiff has been unable to return to recreational pursuits. He is limited to what he can do around the house. His brother takes very good care of him and insists he only does light housework and will not even let him touch the lawnmower.
78 The plaintiff’s brother does most of the shopping but if they go to the shopping centre together, they share the shopping. His brother does not like the plaintiff cooking but the plaintiff does cook. The plaintiff does his washing and a “bit of the dishes” but as far as vacuuming “and all that goes,” his brother does that and he mows the lawns; he does everything.[38]
[38]T27
79 The plaintiff told Mr Simm he used to mow a very small lawn when he lived at Rosebud. He lived in a bungalow and his friends worked so he did the gardening. He moved in with his brother in Drouin in September last year. His brother does not let him do the mowing there.[39]
[39]T28
80 The plaintiff continues to suffer constant low back pain and is never without pain. He has good and bad days. On good days, he can walk up to a couple of kilometres and on a bad day, he is restricted in how far he can walk.
81 The pain is situated across the middle of his lower back and is a deep constant ache which never goes away. It is aggravated by activity.
82 Since injuring his back in the incident, the pain has never gone away. After flare ups which aggravate his pain, it returns to the same level of pain again that he had had since the incident. Any increased activity, such as picking up something, puts his back out.
83 The plaintiff finds it difficult to stand or sit for long periods, bend over or lift heavy weights, and his lower back movement is restricted. When he sits, he sits to the side so as not to put pressure on his lower back.
84 The plaintiff finds it difficult walking over uneven distances, up and down hills and stairs. When he walks, he tries to take the weight off his back to avoid increased pain.
85 The plaintiff agreed he told Ms Green he could stand for an hour if he could move around a bit. He agreed he had stood for a whole football match late last season.[40] He agreed he told Dr Manolopoulos that he could walk comfortably for one kilometre, but with pain. He could do things around the house like moving a laundry basket, a box of stubbies or shopping bags.[41]
[40]T27 - report of Mr Simm
[41]T30
86 The plaintiff tries to avoid kneeling and squatting because he finds it very difficult to get back up again.
87 The plaintiff’s sleep has been affected and he finds it difficult to get to sleep at night because of pain, and he is woken by pain.
88 The plaintiff has to lie down each day to manage the pain, sometimes for an hour. On other occasions if he has been for a walk, he might have to lie down for up to two hours.
89 The plaintiff still finds it difficult to drive for long distances. If going to Melbourne, he tends to catch the train, otherwise he needs to take regular breaks. He has not had a licence for twenty-five years and only travels as a passenger.
90 During the day, the plaintiff sits around the house a lot and watches television and reads a lot of books. Otherwise, he is fairly isolated at home. His social life has been affected, the most activity for him is when he stays with a friend when he goes to his doctor in Frankston.
91 The plaintiff’s mood has been affected. He is in constant pain and gets a bit grumpy. He is only fifty-six, his injury happened eight years ago and it is depressing not being able to work, having intended to work until sixty-five. Having left school in Year 10, he had worked for a long, long time before injury and wishes he was still working.
92 The plaintiff had planned to remain working at the glass factory. The factory had talked to him about becoming permanent before the incident and his long-term plan was to stay there and do odd farrier jobs on the weekend.
93 The plaintiff had to move to Drouin to live because his friends sold their house. There is not a lot of employment locally. His computer skills are very limited. He has a smart phone and can make calls, send texts and use Google. He is not able to send an email.[42]
[42]T38
94 The only experience the plaintiff had on computers was when working at the University, where he was shown how to fill in the basic worksheet and send it. Otherwise, his job was a manual, physical-type role. He has never worked in customer service or in an office. He has no experience in administration, save for compiling a worksheet. He has never prepared a Word document and if he needs a résumé, it has been done by someone else.
95 The plaintiff has not worked since 2012. He lives in Drouin and does not have a licence. He has not done any formal study since Year 10. He has been recommended to do a computer course and certificates but he does not believe he would be able to complete them. He had not made any enquiries about doing a computer course or other training.[43] He does not have computer skills and is not familiar with studying. He struggles to sit for long periods due to the pain in his back. He was given an old computer when he left the University. He set it up at home but became so frustrated trying to use it, he put it back in the box at home.
[43]T33
96 The plaintiff did not believe he would be able to bend to work as a warehouse administrator. He is unable to stand for long periods, bend over or lift heavy weights. He is unable to do any frequent lifting. He struggles with bending, crouching and squatting, and avoids those activities as he finds it difficult to straighten up again. These movements are also accompanied by pain. He has never done reconciliation work with inventories or stock.
97 The plaintiff has never been in a job where he has had to establish and co-ordinate operating procedures.
98 The plaintiff does not know how to use Microsoft Outlook. His computer skills are limited to what he does on his phone, on which he cannot even send emails. He did not know where the IPAR lady obtained the information that he was confident using Microsoft Outlook. An IT general hand at the University helped him with the worksheets.[44]
[44]T31
99 The plaintiff did not think he could try the suggested job of warehouse or administration assistant. He had never had that experience. If he was told how to do it, he did not think he could. He agreed he could count stock coming into the warehouse. He had never reconciled stock with the orders: “Physically and mentally I don’t think … I’ve never done that so, … I’m not sure.” He agreed he had not taken any steps to retrain himself.[45]
[45]T34
100 The plaintiff did not think he could try to establish and co-ordinate operating procedures because there would have to be manual, physical work which he could not do. He could not co-ordinate operating procedures for receiving, handling and storing goods. He would and could try the job identified at Fantech Pty Ltd (“Fantech”). If trained to do it, he did not think he would be able to raise and co-ordinate uniform orders. He was not sure whether he could receipt goods into the system or run operations reports. He did not really understand what raising purchase orders meant, but he agreed he could try it if shown how to do it. He did not think he could support the operations manager and team from an administrative perspective. He agreed he was a reliable person with a good work ethic and willing to learn.
101 In re-examination, the plaintiff said he could not do the suggested job if he was required to frequently sit at computers because the pain in his back would be aggravated and he would have to lie down for up to two hours in bed.[46]
[46]T36
Other conditions
102 In 2019, the plaintiff spent some time in Frankston Hospital for his pancreas problem. He remains under the care of a specialist and takes pantoprazole. Apart from the odd flare up, the last one being in 2018, his pancreas was under control with medication.
103 The plaintiff did not know how this condition would have anything to do with his ability to bend down and pick things up because he does not do so. He agreed, when it was bad, the abdominal pain caused pain and discomfort on a daily basis over the last couple of years.[47] His abdominal pain is now “fine, perfect”. His shoulders are also “perfect”.[48]
[47]T26
[48]T37
Taxation summary
104 In the financial year ending 2011, the plaintiff earned $52,586. The following year, his earnings totalled $33,078.
The Plaintiff’s medical evidence - treaters
105 The plaintiff’s physiotherapist, Carmel Phillips, reported in February 2013.
106 Ms Phillips noted the plaintiff first presented on 14 March 2012 advising he had hurt his low back five days earlier at work. He stated he had suffered a similar injury three years ago; however, this episode was worse.
107 The plaintiff next attended on 16 March 2012, reporting feeling much better. He was on a 10-kilogram maximum lifting capacity so there was currently no suitable work for him. He was treated two to three times a week until 11 April 2012.
108 On 11 April 2012, the plaintiff reported feeling 80 per cent better. He was to return to work on full duties the following day. No follow up physiotherapy sessions were scheduled and the plaintiff was to make a booking if he felt he needed to be seen.
109 The plaintiff returned to Ms Phillips on 5 June 2012, having been referred by Dr Kaye. He then reported re-injuring his back about a week earlier. He also mentioned he had since been made redundant. He was to return to the clinic in two days for a full assessment.
110 On 7 June 2012, the plaintiff stated he had re-injured his low back about a week earlier while undoing a bolt whilst in a seated position. He was seen twice a week until 25 June 2012, reporting no improvement during that period. He was last seen on 13 August 2012.
111 In the clinical note of the 7 June 2012 attendance, Ms Phillips set out “present since 9/3/12 pushing up heavily from squat - sudden severe lower back pain”.
112 The plaintiff was first seen at Interhealth Medical Clinic (“the Clinic”) in Dingley on 14 March 2012 by Dr Nguyen.
113 The plaintiff then described low back pain which he claimed had commenced four days earlier whilst lifting at work. It was noted that the plaintiff had previously injured his back in 2008 and had been treated elsewhere. Dr Nguyen recommended physiotherapy and suggested duty restriction at work. Brufen was prescribed. The plaintiff was then seen a number of times and cleared for full-time duties by Dr Nguyen on 11 April 2012.
114 The plaintiff represented on 5 June 2012 when seen at the Clinic by Dr Kaye. He then described recurrence of his pain subsequent to some lifting at home over the preceding weekend. He was again referred for physiotherapy.
115 On that date, Dr Kaye provided a WorkCover Certificate of Capacity setting out a diagnosis of “non specific LBP … previous similar injury ... consistent with patient’s description of cause ... recurrence of similar injury 3/2/12 – never completely resolved.”
116 The plaintiff last saw Dr Kaye on 2 April 2013. He was then much improved and no longer taking OxyContin. He continued to take Avanza. He was engaged in regular physical therapy in a pool and it was noted his sleep and general disposition were also much improved.
117 Dr Kaye thought the plaintiff was still incapacitated by his back pain, which now seemed to be improving. There was no surgery anticipated and it was hoped to further reduce his medication over the coming months.
118 Dr Kaye noted that the plaintiff’s back pain had continued. It was somewhat improved with physiotherapy. The plaintiff was consulting another doctor and had been prescribed narcotic analgesics to aid pain control.
119 On 22 June 2012, the plaintiff was seen at Monash Emergency. Under ‘mental status’, it was noted the plaintiff was a “48 year old male who has a three month history of workplace injury that is not resolved and has been developing depressive symptoms”.
120 On 26 June 2012, the plaintiff attended Monash Medical Centre. The clinical note to the MRI scan performed that day was “recurrent lower back pain”.
121 The plaintiff saw Dr Robert Gassin, musculoskeletal and interventional pain management physician, on referral from Dr Fernando in April 2015.
122 The plaintiff reported initially hurting his back in March 2012 working at a glass factory. He remained at work for approximately three hours, after which he had to discontinue work due to the severity of his symptoms. He aggravated them in May 2012 undoing a wheel nut at home. He had suffered low back pain ever since.
123 Dr Gassin then suspected the plaintiff’s symptoms were arising from the lower lumbar region, and he organised injections.
124 In an operation record of 23 April 2015, it was noted that Dr Gassin planned to perform bilateral L4-5 and L5-S1 facet joint injection of cortisone and bilateral L3, L4 and L5 medial branch blocks; however, the plaintiff found the procedure very painful and it was abandoned after the left-side injections were performed.
125 The post procedure pain chart revealed no significant change in pain following left-sided injection. In those circumstances, Dr Gassin thought the injection response suggested the presence of central sensitisation.
126 Dr Gassin recommended the plaintiff stay on Avanza, Norspan patches and Lyrica. He encouraged the plaintiff to remain active, despite his symptoms, and pace himself. At that stage, he had made no arrangements to see the plaintiff in the future.
127 Dr Gassin provided a medico‑legal report in October 2019 detailing the three attendances between 8 April and 25 May 2015.
128 Dr Gassin thought the plaintiff most likely suffered an injury to one of the lower lumbar structures, most likely a disc; however, by the time he had consulted him, the plaintiff had developed central sensitisation in the region of his injury and that was contributing significantly to his presentation.
129 Dr Gassin answered “Yes” to the question whether the injuries were consistent with the stated cause.
Investigations
130 There was an MRI scan of the plaintiff lumbar spine performed on 26 June 2012.
131 It was reported there was prominent multi-level disc degenerative change. There was mild canal stenosis at L2-3, mild to moderate canal stenosis at L3‑4 with right neural compressive foraminal stenosis, and mild canal stenosis at L5-S1 with posterior displacement of the descending right S1 nerve root. It was suggested a CT-guided epidural injection may be of some benefit. There was also multi-level facet degeneration.
132 Following a CT scan of the lumbar spine carried out in June 2019, multi-level degenerative change was reported.
Medico-legal evidence
133 Mr Gerald Moran, orthopaedic surgeon, carried out an AMA assessment on behalf of QBE in August 2014. He allowed a 5 per cent impairment of the lumbosacral spine, having found the plaintiff aggravated multi-level disc degeneration and aggravated multi-level facet joint degeneration in his lumbar spine. He was aware of the tyre incident but made no comment in relation thereto.
134 By letter darted 16 September 2014, QBE advised the plaintiff’s solicitors that following Mr Moran’s examination, liability had been accepted in relation to s98(c) for the plaintiff’s lower back, with an injury date of 10 March 2012. Liability was rejected for stress, anxiety and depression.
135 On 5 January 2015, the Medical Panel decided the plaintiff had a 5 per cent whole person impairment resulting from the accepted lower back injury.
136 Having told the Medical Panel of the injury in the incident, the plaintiff said he continued at work for a few hours but then went off and consulted a general practitioner. He was put off work for about six weeks and referred for physiotherapy and commenced medication.
137 The plaintiff said he returned to work after six weeks on alternative duties, located in a different factory, as his employment was through a labour-hire company. He continued to suffer residual pain and stiffness and his back would become sore after standing for long periods of up to eight hours. He was taking Panadol Osteo, up to six a day, and Celebrex. He said his symptoms never entirely resolved after the incident injury.
138 The plaintiff said he suffered a second incident in non-compensable circumstances on 7 June 2012 when assisting his brother-in-law to change the wheel on a car. He was pulling on the wheel nut, straightened up and experienced an increase in back pain, with difficulty walking and an inability to stand up.
139 The plaintiff saw his general practitioner again and was referred for physiotherapy. He continued painkilling medication and had not returned to work since.
140 The plaintiff said he was on treatment with physiotherapy and hydrotherapy for about fifteen months. He had not been referred to any specialists for his back nor had he had any cortisone injections.
141 The plaintiff told the Medical Panel he still suffered low back pain radiating into the left posterior thigh to the knee. He advised he had been diagnosed as suffering from an unrelated left inguinal hernia four months earlier. He told the Panel that about four weeks before seeing them he had suffered a further increase in back pain when stepping off a bus and had to rest in bed for four days.
142 The plaintiff told the Medical Panel of his tired back history working as a farrier, and that his symptoms at that time had never resulted in a need for treatment or time off work.
143 The plaintiff told the Medical Panel of ceasing playing indoor cricket and horse riding due to his back injury. His sitting was limited to 90 minutes and walking for up to half a kilometre caused back pain. He had some difficulties with personal hygiene tasks.
144 On examination, the Panel noted the presence of loss of lumbar lordosis with mild mid lumbar tenderness. It was noted gait was normal. There was restricted motion, more in right lateral flexion and rotation than to the left. There was evidence of dysmetria.
145 The Panel also had available the June 2012 MRI. The Panel concluded the plaintiff was suffering from an aggravation of lumbar disc degeneration with referred symptoms without clinical evidence of radiculopathy relevant to the accepted low back injury.
146 The Panel considered that due to the nature of the plaintiff’s physical injury and the length of the history, his current physical injury was substantially stabilised and is unlikely to remit with or without medical treatment and was therefore stable and permanent.
147 The Panel considered the incidents and the incident with the tyre reported by the plaintiff. The Panel noted the plaintiff had never fully recovered from the incident injury when he suffered an aggravation in non-compensable circumstances. It considered the plaintiff’s description of the injuries and concluded that the tyre incident constituted an exacerbation of a pre-existing aggravation of lumbar disc degeneration. The tyre incident exacerbation had subsequently resolved but the aggravation of the incident date persisted to that time. The Panel therefore concluded that while the plaintiff had suffered an exacerbation of non-compensable circumstance, that did not constitute a pre-existing or unrelated injury, or any pre-existing or functional impairment.
148 Dr James Rowe, specialist occupational physician, examined the plaintiff in November 2019.
149 The plaintiff told Dr Rowe of the incident injury and a return to work following physiotherapy; however, that return was ultimately not successful, and he was soon made redundant.
150 Dr Rowe noted the plaintiff had continued to suffer with ongoing low back pain since that date and had made several presentations to hospital and to various doctors following episodes of exacerbated pain.
151 Dr Rowe also noted the plaintiff suffered with intermittent lower back pain prior to the incident injury, having presented at Monash Medical Centre in 2006 with an exacerbation of back pain which developed while bending over. He was also treated for back pain in 2009 with a short course of chiropractic treatment in Bacchus Marsh.
152 Dr Rowe noted the plaintiff had an extensive previous history of abdominal surgery to treat a twisted bowel, bilateral frozen shoulders, pancreatitis, reflux and an inguinal hernia, all unrelated to this claim.
153 Dr Rowe noted that the CT scan performed on 13 June 2019 again demonstrated multi-level degenerative changes.
154 On examination, the plaintiff described continuing lower back pain, particularly on the left, with a general weakness in his left leg but not pain.
155 The plaintiff reported difficulty walking any distance and he was unable to jog or perform a wide range of exercises. It was also difficult to sit or stand for extended periods and he had trouble bending over, lifting or carrying anything heavy. He reported poor quality sleep due to back pain.
156 On examination, there was marked limitation of movement in the lumbosacral spine and there was wasting of both the left hip and calf compared to the right. There was also weakness of movement of the left foot and ankle.
157 When asked whether he considered the plaintiff’s employment with the employer to be the cause of his lower back injury, Dr Rowe replied:
“This man has a long history of intermittent back pain which was exacerbated by this incident at work on 10 March 2012 while he was in the employ of Unidex Consulting Pty Ltd.”
158 Dr Rowe thought the plaintiff was suffering with chronic low back pain related to disc degeneration in the lower lumbosacral levels of L4-5 and L5-S1.
159 Dr Rowe considered the plaintiff did not have a realistic capacity for any type of work, whether full time or part time. He was not a suitable candidate for re-education or retraining. Taking into account his physical capacity and his age, it was not likely the plaintiff would ever make a return to work; he could not be considered employable. His prognosis was poor and his condition was unlikely to change in the future.
160 Dr Rowe was provided with the November 2019 IPAR vocational report.
161 Dr Rowe noted the suggested employment options of warehouse administrator, general factory hand, process worker, stable hand, handyman, farrier and machine operator were jobs where the prospects of the plaintiff being able to undertake and maintain any of the positions was negligible. All required a degree of physical dexterity and strength, prolonged periods of standing, the ability to lift and manoeuvre and capacity which the plaintiff did not have.
162 Dr Rowe understood it was possible to identify particular tasks with any job description and suggested that an individual is able to perform them; however, there is much more to regular, meaningful, paid employment than the performance of one or two tasks within the duty statement. An employee must be able to get to work on a consistent, reliable and permanent basis and be able to perform all aspects of their job without risk to themselves or others, and be able to cope with unexpected occurrences with a high degree of reliability. To put them in a situation where that might not be the case is unfair and potentially dangerous, not only to themselves but to any potential employer.
163 Dr Rowe noted that other than his work as a farrier which the plaintiff was now most definitely not able to pursue, he had worked mostly as a general labourer and would not pass a pre-employment medical for any of the suggested positions.
164 Dr Anna Manolopoulos, orthopaedic surgeon, examined the plaintiff in November 2019.
165 The plaintiff told Dr Manolopoulos of the incident circumstances, subsequent treatment by his general practitioner and physiotherapy. At the six-week mark, and as a result of pressure from his workplace ringing him daily to see if he could return to work, the plaintiff requested a clearance. Retrospectively, he felt at that time he was not ready to go back to work as he was not quite well as his pain was not under control. After returning to work, he was moved from worksite to worksite and was doing minimal work overall.
166 In May 2012, the plaintiff was changing a tyre at home and his back flared up again. His general practitioner told him he had had a recurrence of the condition.
167 Dr Manolopoulos noted the plaintiff’s subsequent treatment and details of his lifestyle.
168 In terms of his earlier back issues, Dr Manolopoulos noted the plaintiff did suffer from some tiredness when working as a farrier, and the attendances in 2006 and 2009. He told her his back symptoms had completely recovered after each of these incidents.
169 Dr Manolopoulos also noted the plaintiff had a history of adhesive capsulitis of both shoulders, an inguinal hernia and pancreatitis which required hospitalisation.
170 On examination, the plaintiff’s symptoms consisted of back pain and tenderness with no radiation. He described a vice-like pain which extended laterally on both sides but not into the lower limbs.
171 When asked whether she considered the plaintiff’s employment with the employer was a cause of his lower back injury, Dr Manolopoulos replied:
“… [The plaintiff] has had back issues in the past but prior to his employment with … [the employer] he was asymptomatic. The events on … [the said date] caused an exacerbation of his pain and from this I would reason that his employment with … [the employer] is a cause of his lower back injury.”
172 Ms Manolopoulos thought the plaintiff could not return to full-time unrestricted work in his pre-injury position. Given his age, education, skills and work experience, she thought that realistically, he was unable to return to any labouring job.
The Defendant’s medical evidence
173 Dr Nguyen’s note of 14 March 2012 read:
“Back pain since 10/03 at work.
Job involved: rolling 25 kg glass. Also crane operating.
Had previous back pain: 2008 Light duties.
Restricted flexion and rotation.
No neuro signs.”
174 The plaintiff subsequently consulted Dr Nguyen on 19 and 28 March and 4 April 2012 for back pain.
175 On 11 April 2012, Dr Nguyen noted “much improved, ready for clearance, needs regular exercises”.
176 Dr Nguyen provided a Certificate of Capacity on 11 April 2012 setting out he expected the plaintiff to be fit for normal duties on that date. The injury or disease was described as low back pain, and the diagnosis, non-specific low back pain. Previous back pain was noted. The injury/disease was consistent with the plaintiff’s description of cause.
177 In his note of 5 June 2012, Dr Kaye set out:
“Injured back (again) in March. Seen by physio.
‘Was 80% better when asked for clearance’ as ‘had to get back to work’ because not working was ‘doing my head in’.
Works as temp - immediately moved from that factory, minimal work since.
Persistent back pain since.
Hasn’t been pain-free since March.
Developed more severe back pain over weekend.
Currently on dole.”
178 On examination on 7 June 2012, Ms Phillips, physiotherapist, noted:
“Back pain since mid-March, flare up last week after when rising from prolonged sitting. Made redundant recently.”
179 The plaintiff first saw Dr Fernando at Belvedere Park Medical Centre on 3 July 2012. It was then noted the plaintiff was wanting to find a new general practitioner, having had a WorkCover doctor in Dingley Village, Dr Nguyen.
180 On 12 July 2012, Dr Fernando noted the plaintiff was feeling low in mood due to work injury and was still having back pain.
Medico-legal evidence
181 Dr Berry, senior consultant surgeon, examined the plaintiff on behalf of QBE in July 2012.
182 Dr Berry noted the incident injury, the plaintiff subsequently attending his general practitioner and being put off work and given physiotherapy and treated conservatively.
183 After four to five weeks, the plaintiff was allowed to go back to work and was placed at a different firm where he was working as machine operator for three days. He was then to be placed with another glass company; however, he hurt his back again changing a wheel. He had further treatment and had been unable to return to work.
184 On examination in July 2012, the plaintiff complained of constant low back pain, not radiating into the legs.
185 In terms of past history, the plaintiff told Dr Berry that he had suffered a degree of discomfort. He had come home from work as a farrier with a sore back and the next morning it would be gone. He stopped that work some fifteen years ago. Apart from that, he denied any other accidents or injuries and his general health was good.
186 Dr Berry noted the plaintiff had a history of developing back pain as a result of a lifting incident at work. By his own account, this had basically settled when he changed a tyre at home. It was argued that this was an aggravation of a work injury; however, Dr Berry thought it more appropriate to argue that the plaintiff has a degenerate back which had probably been developed by his farrier work.
187 Dr Berry considered the incident to be a temporary aggravating incident of a degenerative back and that then over six weeks that had virtually settled. He considered the tyre incident to be a separate one, a further aggravation of a pre‑existing degenerative back, and therefore not related to work.
188 Dr Berry then thought if the plaintiff could return to any form of work, it should be light sedentary duties avoiding any lifting, bending, crouching and stooping. He should make a graduated return to work, starting at four hours a day and gradually building up to full hours. Dr Berry would not expect a return to pre‑injury duties and hours for the foreseeable future.
189 In summary, Dr Berry thought the injury with the tyre was a new one and separate to the incident.
190 In a supplementary report of 13 August 2012, Dr Berry advised he thought the plaintiff’s work was not a contributing factor to his current incapacity. The lifting incident at work was a temporary aggravation which settled over six weeks. He considered the plaintiff’s employment was still not a materially contributing factor to his injury and that the initial injury had ceased.
191 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff in October 2019.
192 Mr Simm noted the plaintiff improved post incident with treatment and also noted the physiotherapist’s comments on 11 April 2012 that the plaintiff was 80 per cent better and to return to full duties the following day.
193 The plaintiff did go back to work but after working for about three days, his services were terminated. He found a few days of casual employment, presumably in late April or early May 2012. Then there was the episode with the tyre where he felt a painful pop and severe low back pain without sciatica and had to cease work following that incident and he had not worked since.
194 Mr Simm noted the subsequent medical treatment. The plaintiff had been changed from Lyrica to Neurontin about six months earlier and that seemed to have improved his back posture. His pain had been stable for some years. He suffered from constant pain, usually 4 out of 10. He last had 10 out of 10 pain eight months ago. The pain extended across the lumbosacral region and into the sacroiliac joints but not radiating to the buttocks or lower limbs.
195 Sitting tolerance was for 30 minutes before the plaintiff had to move around. He had stood through a football match. Prolonged standing increased his pain. He could walk continuously for several hours.
196 Mr Simm noted the plaintiff had lived in a house with his brother in Rosebud until recently when the property was sold. Presently, he and his brother share the domestic activities, which include the shopping, cooking and cleaning. The plaintiff is able to do some gardening and lawnmowing of a very small lawn.[49]
[49]T28
197 Mr Simm diagnosed a chronic spinal pain syndrome related to non-specific mechanical low back pain without radicular signs or symptoms. The chronic pain probably relates to advanced longstanding multi-level degenerative lumbar spine pathology, which was constitutional, age-related and not caused by the plaintiff’s employment.
198 Mr Simm noted the plaintiff deposed to a significant past history of recurrent back pain.
199 Mr Simm thought the incident injury was a significant back strain injury which was painful. The pain persisted for several weeks and the plaintiff was only 80 per cent better a month later when cleared back for normal duties. He was able to meet the physical demands of that work until his services were terminated shortly after returning to work. He was then unable to find alternative work.
200 The plaintiff claimed that his back had remained painful but there was a severe exacerbation of back pain changing the tyre. There was a further exacerbation of back pain when undertaking unpaid employment to cover his board at Bacchus Marsh. He had worked up to 13 hours a day, with a pain increase as a result of doing that work.
201 Mr Simm noted the subsequent clinical course had been that of chronic relapsing low back pain without radicular signs or symptoms. He thought the work injury was an episode in the plaintiff’s clinical course of recurrent and subsequently chronic symptoms from the multi-level lumbar spine degenerative pathology.
202 Mr Simm also considered the damage done to the compromised degenerative structures in the lumbar spine as a result of the work injury may have been sufficient to accelerate the degenerative process in the lumbar spine and lead to some increase in symptoms in the future in the condition; however, he thought that this would be a small contribution, which would be difficult to quantitate as the plaintiff’s condition could be adequately explained on the basis of the anticipated clinical course of the degenerative pathology.
203 On the plaintiff’s history of chronic but never fully resolved back pain, Mr Simm thought there was possibly a small ongoing contribution from the work injury.
204 When asked whether the plaintiff had any degenerative pre‑existing or subsequent condition unrelated to his employment with the employer and what its effect was on a range of issues, Mr Simm noted the plaintiff’s degenerative pre‑existing condition was the reason he experienced significant back pain with the incident. He thought it was therefore only a matter of time when a similar degree of back strain would cause pain from the underlying degenerative pathology. He noted the plaintiff had already suffered from recurrent and significant back pain in the past. He did not expect the plaintiff’s lumbar spine degeneration to have allowed him to continue to work in a heavy manual occupation for much longer in the future. He noted the plaintiff improved greatly after the initial injury, suggesting it had largely resolved but he suffered further exacerbations of pain with strain on the back which were predominantly, if not completely, due to the underlying degenerative disease.
205 When asked:
“How has any injury arising out of the worker’s employment with Unidex Consulting Pty Ltd affected his employment capacity? In particular:
(a)does the worker have a capacity for his pre‑injury employment duties? If not - when can it be expected he will be fit for such employment?”
206 Mr Simm replied:
“He does not have the capacity for pre‑injury employment or any alternative manual work.”
207 Mr Simm thought the plaintiff had a capacity for suitable light employment and he would need some flexibility with sitting and standing. Light objects would need to be handled between knee and chest height and, with appropriate constraints, the plaintiff could work full time.
208 Having been provided with the November 2019 IPAR vocational report, Mr Simm noted the “warehouse administration assistant” role with Fantech. He considered the usual duties described were not of a physical nature. No formal qualifications or licences were required and no heavy lifting was involved. There was frequent sitting with the ability to stand. Items were office items and there was an ability to take rest breaks. He thought the plaintiff had the physical capacity to undertake this work full time, providing the functional demands were an accurate description of the work.
209 Mr Simm thought the job at Dan Murphy’s as a customer service assistant was of a physical nature and the work duties would probably be inappropriate for somebody with chronic relapsing back pain.
210 Whilst the purchasing supply or logistics clerk role was described as non physical, there was some bending, squatting or crouching which may be required to inspect goods. Unless the plaintiff had experience working in this area, Mr Simm doubted he would be appointed to the role.
211 Mr Simm concluded generally, someone who has been out of the workforce with a compensable injury for many years and who is in receipt of a disability support pension has a strong self perception of ongoing injury and incapacity for work which is usually insurmountable. Statistically, there is very little if any prospect of the plaintiff resuming work in any capacity. He noted the plaintiff gave quite negative responses to the suggestion he could work in the occupations suggested. The fact he has been awarded the disability support pension is strong enforcement to his self-perception of an ongoing injury and associated incapacity. Mr Simm thought a full assessment of the plaintiff’s work capacity should include a psychiatric assessment and possibly an assessment by a chronic pain specialist.
212 Dr Dush Shan, psychiatrist, examined the plaintiff in January 2020.
213 In terms of history, Dr Shan noted the incident and treatment thereafter. The plaintiff went back to restricted duties but a month later. He apparently requested a clearance from the doctor because he felt pressured to resume work and also did feel better in himself.
214 The plaintiff then kept working but kept seeing doctors and appeared to have remained on some medications; however, in June 2012, he had had a severe episode while simply helping his brother change a tyre. On that occasion, he had a severe spasm and could not stand. He then ceased work and did not return to the employer. He then tried briefly working in some other positions but could not go on. He kept seeing doctors and it would appear he then began to receive Centrelink benefits.
215 The plaintiff’s main ongoing complaints to Dr Shan were physical, reporting constant low back pain, and he was quite emphatic he did not have sciatica. He did not report Severe Depression at that time to be affecting his day-to-day function, although he had issues after the incident.
216 Dr Shan concluded there was a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. In his view, it did not restrict the plaintiff from either pre‑injury or suitable employment within his physical limitations or retraining.
Vocational evidence
217 Michelle Martin, occupational rehabilitation consultant of IPAR, provided a vocational assessment report dated 13 November 2019. She suggested three potentially suitable jobs:
·customer service assistant-enquiry clerk
·warehouse-administration assistant; and
·purchasing supply logistics or stock clerk.
218 The plaintiff was cross-examined only in relation to the warehouse administration assistant role. The expected weekly full-time income for that job was $1,212. The duties and demands of that role include:
·administering and co-ordinating storage and distribution operations within an organisation
·counting incoming stock and reconciling it with requisitions, and updating inventory and stock location records
·establishing and co-ordinating the operating procedures for receiving, handling, storing and shipping goods.
219 There were the following physical and psychological demands:
·sedentary to light physical demand levels
·employees frequently walk and will stand about the work area to verify cargo and examine shipping documents
·employees frequently sit at computer workstations while completing the clerical tasks required
·stretching, twisting, climbing, lifting and carrying movements are not typically a significant component of the job
·bending, squatting or crouching may be required for lifting tasks and inspection of goods
·repetitive movements are likely on an occasional to frequent basis
·driving is not a significant component of the job
·use of handheld objects and equipment such as pens, calculators and markers and electronic scanners is frequent
·mental skills necessarily include a good level of record keeping, organisation and communication
·there are opportunities for flexibility of movement.
220 IPAR contacted Fantech in Dandenong South about a vacancy in this role.
221 The skills required for that role were experience or training in manufacturing, warehouse and/or administration was advantageous but, most importantly, they were looking for an individual who was reliable, had a good work ethic and was willing to learn.
Overview
222 It is not in issue that the plaintiff injured his lower back in the incident. His claim was accepted and he was paid an impairment benefit pursuant to s98C.
223 However, counsel for the defendant submitted the incident injury was a temporary aggravation and then subsequent non-work events caused all or the vast bulk of any current spinal consequences.[50]
[50]T39
Credit
224 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[51]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[51](2010) 31 VR 1 at paragraph [12]
225 As counsel for the plaintiff submitted, the plaintiff’s credit had not been attacked or successfully attacked.[52]
[52]T54
226 I found the plaintiff to be a truthful, straightforward witness who did not overstate the level of his pain and restriction. I accept that he has suffered ongoing back pain since the said date. Further, no medical practitioner had any concerns as to the plaintiff’s genuineness or commented that he was embellishing his complaints of pain and restriction.
Aggravation
227 In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether any additional impairment resulting from the incident is serious and permanent.
228 In Petkovski v Galletti,[53] 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. … .”
[53][1994] 1 VR 436; approved in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 (supra) at paragraphs [34] and [35], T40
229 Counsel for the defendant submitted that there was a history of pre‑existing back problems and flare ups at times and then the incident occurred. The plaintiff had worked as a farrier for twenty years. He agreed he had back pain in 2006 and later, in 2009, when he was prescribed Tramadol and required a trip to Emergency.[54]
[54]T40
230 I do not accept Mr Simm’s description of a significant history of recurrent back pain.
231 In my view, while this is an aggravation case, the plaintiff was functioning quite well in the years leading up to the incident despite complaints of back pain in 2006 and 2009 or 2010. He was able to work full-time unrestricted duties with the employer, earning $53,000 in the 2010-2011 financial year and $28,000 until March in the following financial year. After his attendance at Melton, he did not require further medical treatment until after the incident. In March 2012, he told Ms Phillips that his back pain was worse after the incident than his pain three years earlier.
The role of the incident injury in the Plaintiff’s current presentation
232 Counsel for the defendant submitted the incident injury was only a temporary aggravation, following which the plaintiff recovered.
233 The plaintiff had a month or six weeks off work and then received a full clearance from Dr Nguyen, confirming there was no ongoing concern on his part.[55] Consistent with this was the report of physiotherapist, Ms Phillips, who said the plaintiff told her on 11 April 2012 he felt 80 per cent better and he did not make a further appointment until 5 June 2012.[56]
[55]T40
[56]T41
234 Further, Dr Nguyen recorded on 11 April 2012 that the plaintiff was “much improved” and Dr Kaye, on 5 June 2012, noted the “80 per cent better” comment made earlier.[57]
[57]T41
235 Between the clearance in April 2011 and the tyre incident, there were no attendances on the physiotherapist or general practitioner.[58]
[58]T41
236 It was submitted that the three days’ work the plaintiff did post incident was a reflection of the sort of work he was doing with a labour-hire firm rather than anything else. There was no evidence during that period that work was offered to him and rejected on the basis of physical incapacity.[59]
[59]T42
237 Following the tyre incident, the plaintiff was back to where he was at the start of March 2012, having improved since that time. In those circumstances, it was submitted the tyre incident put him off work. He agreed there had been a real increase in his pain since that time. There was then the horse incident in Bacchus Marsh which further set him back.[60]
[60]T43
238 Further, it was submitted there was no delineation in either affidavit as to what consequences relates to which of those incidents and no disentanglement as to the consequences that flow from either the work or non-work period.[61]
[61]T43
239 The defendant relied upon the view of Dr Berry, who it was submitted saw the plaintiff at a crucial time, “right when all of this happened”.[62] He thought, at that stage, the plaintiff had virtually recovered.[63]
[62]T51
[63]T62
240 Mr Simm thought the plaintiff’s chronic pain related to advanced longstanding multi-level degenerative lumbar spine pathology, constitutional age-related, and not caused by his employment. He considered the incident was an episode in the clinical course of recurrent and subsequently chronic symptoms from the multi-level lumbar spine degenerative pathology.[64]
[64]T45
241 While Mr Simm thought there might be a small contribution by the incident injury to the plaintiff’s current presentation, in a Barwon Spinners[65] context, that contribution would not, in the defendant’s submission, have significantly affected any current consequences.[66] It was submitted that Mr Simm’s answers relied upon by the plaintiff to the two questions had to be looked at in the context of the majority of his report.[67]
[65]Barwon Spinners & Ors v Podolak (supra)
[66]T46
[67]T46
242 Further, it was submitted the plaintiff’s doctors did not assist because they had not undertaken the relevant task of going through and closely examining the plaintiff’s pre‑incident condition, as well as the two subsequent incidents.[68]
[68]T47
243 Although Dr Manolopoulos had a history of the two subsequent incidents, she did not address them in her conclusion or grapple with them or the fact that the plaintiff went back to work, having requested a clearance and being given one.[69]
[69]T47
244 Dr Rowe’s view was also criticised. While he did note the tyre incident, he did not tie it into the plaintiff’s return to work or his inability to return to work after that incident. Further, he made no mention of the horse incident.[70]
[70]T48
245 Dr Gassin also did not have a history of the horse incident and it was submitted his opinion was somewhat vague as to causation. He did not take the plaintiff any further in terms of specifically connecting the incident with the plaintiff’s current symptomatology.[71]
[71]T49
246 The Medical Panel’s view was criticised as it was not asked to determine liability and the Panel did not take a history of the horse incident.[72]
[72]T49
247 In response, counsel for the plaintiff submitted it should be accepted the plaintiff was never free of pain after the incident. When he went back to work with the employer he did very little work – three days over a month – and was sent to a number of different factories. It was very light work and he continued to have back pain during this time.[73]
[73]T55
248 It was submitted this situation was consistent with that recorded by Dr Kaye when the plaintiff returned to him in June 2012, and also the medical certificate provided by him at that time – a WorkCover certificate – which described the injury as low back pain 10 March 2012.[74] This was not a normal medical certificate and it was completely consistent with the clinical note that the plaintiff had said he was never a hundred per cent and he had another flare up.
[74]T55
249 It was submitted that was also entirely consistent with the Monash Hospital record of the plaintiff’s attendance on 26 June 2012 when it was noted “three-month history of workplace injury that is not resolved.”[75]
[75]T56
250 Further, it was submitted there was no evidence that the tyre incident was causative of incapacity for work thereafter. In that regard, it was curious that the plaintiff seemingly had full-time work with the employer until the incident, then after it, he got three pretty light jobs over a month, which was not really consistent with his work before the incident injury. His work then stopped.[76]
[76]T56
251 If it was suggested by the defendant that no further work after the car tyre incident was due to that incident, there was no evidence from the defendant in relation thereto. Further, there was no medical evidence that the plaintiff could not work now because of the tyre incident. In those circumstances, it was submitted the Court should not find that the lack of work after the tyre incident is simply causatively related to that incident.[77]
[77]T57
252 Counsel for the plaintiff relied on the reasoning of the Medical Panel which had a history of the tyre incident.[78]
[78]T57
253 Having considered the incident and that with the tyre, the Panel found that the plaintiff had never fully recovered from the incident injury when he suffered an aggravation in non-compensable circumstances. Having considered the plaintiff’s description of the injuries, it concluded that the tyre incident constituted an exacerbation of a pre-existing aggravation of lumbar disc degeneration. The tyre incident exacerbation had subsequently resolved but the aggravation of the incident date persisted to that time. The Panel therefore concluded that while the plaintiff had suffered an exacerbation in non-compensable circumstances, that this did not constitute a pre-existing or unrelated injury or any pre-existing or functional impairment.
254 Further, the Panel was not satisfied that there was any evidence in the lumbosacral region due to the natural effects of aging.
255 Counsel for the plaintiff submitted that Dr Berry’s view was very easily dealt with. He was not aware of the continuity of the plaintiff’s back pain and that the plaintiff was never pain free after the incident. Further, he did not have Dr Kaye’s note or his WorkCover certificate.[79]
[79]T59
256 Counsel relied on Mr Simm’s answer to the two questions in terms of causation. It was submitted Mr Simm actually supported a causal relationship between the compensable injury and a present work incapacity. Whilst he earlier said there was a small ongoing involvement in answer to the question about the incident injury itself, he expressed the view that plaintiff had a significant incapacity arising out of the work injury.[80]
[80]T59; T5
257 Counsel for the plaintiff also relied on the answers of Dr Manolopoulos and Dr Rowe to questions about causation.[81]
[81]T59
258 It was submitted their views were probably not all that inconsistent with Mr Simm, who thought that the compensable injury is a cause of the plaintiff’s condition. It is an aggravation of a pre‑existing degenerative change that affects the plaintiff’s work capacity and just looking on a timeline of his work, the plaintiff was working full time up to the incident and since then he has done only three days’ light work. Dr Rowe gave the same answer, although there was not a detailed analysis by him.[82]
[82]T60
259 Taking into account all the evidence, I am satisfied the plaintiff suffered injury to his back in the incident and that the incident injury continues to contribute to his current presentation.
260 I accept the plaintiff has never been free of back pain since the incident. In those circumstances, I reject Dr Berry’s opinion that there was only a temporary aggravation.
261 In my view, the plaintiff went back to work while still having back problems. As Dr Kaye confirmed on 5 June 2012, the plaintiff was eager to get back to work. The plaintiff urged the “work doctor”, Dr Kaye, to clear him for full duties so he could return to what were effectively full-time hours with the employer, as not working was “doing his head in”.
262 Consistent with this situation was Dr Kaye’s WorkCover certificate, his note of persistent pain since the incident and the notes of Monash Medical Centre on 22 June 2012 of a three-month history of a work injury that has not resolved.
263 Having worked significant hours pre incident as the plaintiff’s taxation records confirm, he was able to do only three days’ light work after the incident. There is no evidence that his incapacity results from the tyre incident.
264 In January 2015, the Medical Panel specifically addressed the respective roles of the incident and the tyre incident in the plaintiff’s presentation at that time, concluding he had never fully recovered from the incident injury when he suffered an aggravation in non-compensable circumstances. It considered the plaintiff’s description of the injuries and concluded that the tyre incident constituted an exacerbation of a pre-existing aggravation of lumbar disc degeneration. The tyre incident exacerbation had subsequently resolved but the aggravation of the incident date persisted to that time.
265 Ms Manolopoulos and Dr Rowe also considered the effects of the incident injury are ongoing, with Dr Rowe being aware of the tyre incident and Dr Manolopoulos commenting on both the tyre and horse incident.
266 Whilst in the body of his report Mr Simm stated that there is possibly a small contribution from the incident injury, his opinion was to some extent based on his view that pre incident, there was a significant past history of recurrent back pain – a view I do not accept. Also, the history taken by him of the plaintiff working 13 hours a day in Bacchus March post incident was rejected by the plaintiff.
267 Further, as counsel for the plaintiff submitted in response to questions about the incident injury’s effect on the plaintiff’s current work capacity, Mr Simm responded that the plaintiff had a capacity for suitable light employment.
268 Having accepted the plaintiff has experienced ongoing back pain since the incident as he described and also his evidence about the effect of subsequent flare ups, including the tyre and horse incidents, there is no disentanglement required of the consequences thereof. I regard his present lumbar condition as a continuum of the incident injury.
Consequences
269 Counsel for the defendant submitted the consequences of any spinal impairment were not serious because of the plaintiff’s ability to stand during a football game, his involvement in household activities, with the situation with his brother being more of one of a protective brother than the plaintiff being unable to do things.[83]
[83]T51
270 In response, counsel for the plaintiff submitted the plaintiff is fifty-six, left school at Year 10, cannot send an email, has never worked in an office, and has not had a car licence for twenty-five years and lives in Drouin East. He has limited sitting tolerances. He needs to lie down for an hour or two a day. He takes pain-relieving medication in the form of Jurnista, a synthetic opioid.[84]
[84]T60
271 I accept that the plaintiff has suffered an aggravation of degenerative changes in his lumbar spine as a result of the incident.
272 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[85]
[85](supra) at paragraph [11]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
273 I am satisfied that the plaintiff has suffered ongoing constant lower back pain, in the form of a deep ache, since the incident. The pain is worse in cold weather. He has good and bad days, with his level of pain being activity related. At times, he needs to lie down and rest because of the severity of his pain. Medico-legal examiners in recent times have recorded similar complaints.
274 The plaintiff continues to require painkilling medication in the form of the opioid Jurnista.
275 As a result of his back pain, lumbar movement is restricted. The plaintiff has difficulty with prolonged sitting and standing, and bending and lifting heavy weights. His sleep is affected and he is limited in his ability to perform household tasks.
276 The consensus of medical opinion is that the plaintiff does not have the capacity for pre-injury work or any alternative manual work.[86] This is a serious consequence for a fifty-six year old man whose work history is limited to physical/manual work, either as a factory worker or working doing some maintenance in South Australia or as a farrier.[87]
[86]Dr Rowe, Dr Manolopoulos and Mr Simm
[87]T60
Loss of earning capacity
277 Having satisfied the narrative requirements, to obtain leave in relation to loss of earning capacity the plaintiff must also establish that:
(a)at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b)after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
278 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
279 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
280 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
281 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
282 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[88]
[88]Barwon Spinners Pty Ltd v Podolak (supra)
283 The parties agreed the “without injury earnings” figure based on plaintiff’s earnings in the 2010- 2011 financial year was $52,586, $1,011 a week, 60 per cent of which is $606.[89]
[89]T52
284 Having submitted any incident aggravation was temporary, counsel for the defendant attributed any incapacity for employment to the tyre incident following which the plaintiff had not worked and a further setback as a result of the horse incident “to where the plaintiff is now”.[90]
[90]T42
285 Further, it was submitted the plaintiff had the physical capacity to do the Fantech job, as Mr Simm opined, and was therefore capable of earning $1,212 per week.[91]
[91]T53
286 Counsel for the defendant also submitted the plaintiff had not discharged his onus in terms of rehabilitation and retraining under ss(g). It was not enough of an explanation that he had the computer in a box at home which he has not tried to use.[92]
[92]T54
287 While the plaintiff has not done the sort of work in the suggested job of warehouse administration, it was submitted it was an environment that he accepted he was familiar with. He accepted he had been in and around warehouses as part of various jobs he had done over the years. It was submitted that the job that had been identified is something with the appropriate training and rehabilitation the plaintiff from a physical perspective would be able to undertake.[93]
[93]T54
288 In response, counsel for the plaintiff submitted there was no employment for which the plaintiff is currently suited.
289 Reliance was also placed on Mr Simm’s comments about the other jobs that were not put to the plaintiff, which he thought were unsuitable. It was submitted Mr Simm had put the plaintiff into a “very narrow little box”. He thought customer service assistant/enquiry clerk was an inappropriate job for somebody with chronic relapsing low back pain. He also thought statistically there was little if any prospect of the plaintiff resuming work in any capacity.[94]
[94]T61
290 I am satisfied the plaintiff does not have the capacity to work in the suggested role. He is now fifty-six. He has never had any experience in office type work, having only done manual work his entire working life. His computer skills are very basic and he would not be able to do duties of the nature required at Fantech. Further, he would be unable to frequently sit to operate a computer. Because of his back pain, he would be unable to reliably and consistently attend any workplace. Further, because of his pain, he would require rests during the day, a situation that would not be possible in a work environment.
291 Taking into account all those factors, I am satisfied the plaintiff has suffered the requisite loss of 40 per cent. On a permanent basis, he does not have the capacity to earn in excess of $606 per week.
292 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
293 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
294 As the plaintiff’s lumbar complaints have persisted for in excess of seven years without any substantial improvement, I consider his lumbar impairment is permanent.
295 Accordingly, I grant leave to bring proceedings for damages for both pain and suffering and loss of earning capacity.
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