Mercovski v Wingfoot Australia Partner Pty Ltd
[2012] VCC 739
•14 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01424
| STEVEN MERKOVSKI | Plaintiff |
| v | |
| WINGFOOT AUSTRALIA PARTNER PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 6 and 7 June 2012 | |
DATE OF JUDGMENT: | 14 June 2012 | |
CASE MAY BE CITED AS: | Mercovski v Wingfoot Australia Partner Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 739 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Industrial accident – plaintiff suffered an injury to his lower back – whether a compensable injury – whether the pain and suffering consequences and loss of earning capacity consequences were serious – plaintiff suffered a secondary psychiatric injury – whether the pain and suffering consequences and loss of earning capacity consequences were serious
LEGISLATION: Accident Compensation Act 1985, sections 134AB(37) and 38(c), (d) and (g)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Ansett Australia Ltd v Taylor [2006] VSCA 171; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
RULING: the plaintiff have leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with Mr M Schulze | Patrick Robinson |
| For the Defendant | Mr Dawson | Lander & Rogers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on the 30 March 2011 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring a proceeding to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring a proceeding for pain and suffering and loss of earning capacity.
3 Mr C Harrison SC appeared with Mr M Schulze of Counsel for the plaintiff, and Mr Dawson of Counsel appeared for the defendant.
4 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· Dr S Kwong, psychiatrist, gave evidence and was cross-examined;
· Dr Irani, general practitioner, gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”) pages 8-12; 24-148 and from the defendant’s Court Book ("DCB") pages 1-8 and 9-250: Exhibit A;
· The plaintiff tendered the clinical notes of Dr Irani: Exhibit B;
· The defendant tendered film taken on 17 September 2009: Exhibit 1;
· The defendant tendered film taken on 15 and 17 May 2010: Exhibit 2;
· The defendant tendered film taken on 26 July 2011: Exhibit 3;
· The defendant its Court Book pages 251-356: Exhibit 4.
The Statutory Scheme
5 The relevant considerations which apply to such an application based upon subsection (37)(a) are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
[1]S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners, at paragraph 33
(c) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(f) In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury.
[3](supra)
6 The relevant considerations which apply to such an application based upon subsection (37)(c) not referred to above, are as follows:
(a) Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious” to the extent of being “severe".
(e) Subsection (38)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
(j) In conformity with Barwon Spinners, I must identify the mental or behavioural disturbance or disorder said to be produced in consequence of the injury; whether it is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the test contained in subsection (38)(d). I have applied the principles set forth therein in reaching my conclusions in this application.
7 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
8 The plaintiff was born on 17 September 1972. He is now forty years of age. He is a married man with three young children. His wife does not work. He is presently in receipt of Social Security payments based upon an assessment that he is disabled. I infer that because his wife is not working, and that he has dependent children, that they are likewise supported by Social Security payments.
9 The plaintiff was born in Australia. His parents are Macedonian by origin. The family returned to Macedonia when the plaintiff was very young. The family subsequently returned to Australia in 1991. The plaintiff's mother tongue is Macedonian. He is able to speak English to a modest degree. He cannot read or write in English.
The Incident
10 The plaintiff was employed by Goodyear as a tyre builder in late 1992. He pursued that employment for about two years, before returning to Macedonia. He returned to Australia in 1996 and resumed that employment. Although the plaintiff said that he was employed by Goodyear, he was in fact employed by the defendant. I assume he meant to say that he was employed with the defendant as a tyre builder.
11 On 28 February 2001, he was operating a tyre building machine. Part of its operation required him to kneel on his right knee while operating a foot pedal with his left foot. The machine comprised, among other things, two rollers which rolled in a counter clockwise motion away from the position occupied by the plaintiff. The rollers operated only when the plaintiff had his left foot on the foot pedal.
12 The plaintiff placed his left foot on the foot pedal and depressed the foot pedal. His foot slipped off the foot pedal and became caught so that the rollers continued to operate. At the same time as his foot slipped he lost his balance, with the result that his body moved forward. His right hand was drawn into the space between the rollers, with the result that his arm was dragged into that space up to his shoulder.
13 The primary injury suffered by the plaintiff as a result of the incident was an angular fracture to the distal third of his right radius. He was taken to the John Fawkner Hospital where he was provided with immediate medical treatment.
The Plaintiff's Medical Treatment
14 The plaintiff was examined by Mr Lynch, orthopaedic surgeon, on 2 March 2001. Mr Lynch diagnosed an angular fracture to the distal third of the plaintiff's right radius. He advised the plaintiff to undergo surgery, which was performed on 7 March 2001 at the John Fawkner Hospital.
15 The surgery comprised an open reduction and internal fixation of the right radial fracture. The angulation was reduced. A plate was inserted to repair the fracture. Mr Lynch subsequently reviewed the plaintiff on 4 May 2001 and 29 June 2001. On 12 November 2003, Mr Lynch performed further surgery which involved removing the plate, and also what he described as debridement of bony exostosis of the right radius.
16 On subsequent review on 16 November 2004, Mr Lynch was of the opinion that the plaintiff had a full range of movement, excellent function, and very good strength in his right wrist and arm. However, the plaintiff reported to him that he had felt unwell following the second episode of surgery, describing headaches; aches in his face; feeling weak; feeling generally unwell; and not being happy within himself.
17 Mr Lynch was specifically asked by the solicitor for the plaintiff whether the plaintiff had reported experiencing any problems with his lower back on any occasion on which Mr Lynch had spoken to the plaintiff. Mr Lynch responded by saying that he had no record that the plaintiff had discussed a lower back condition with him.[4]
[4]PCB 40
The Plaintiff's Lower Back Injury
18 The plaintiff readily conceded that he did not make a complaint to any medical staff at the John Fawkner Hospital of lower back pain. I accept the response of Mr Lynch that he did not receive a complaint of such a condition on the occasions on which he spoke to the plaintiff.
19 The first record of the plaintiff complaining of lower back pain was when the plaintiff saw Dr Irani in April 2001. Dr Irani recorded that coincidentally to the occasion when the plaintiff first complained of lower back pain, that the plaintiff was undertaking a computer course.[5]
[5]PCB 27
20 The plaintiff's complaints of lower back pain were infrequent, but became more frequent and became complaints of significant lower back pain and the onset of significant left leg pain following the second episode of surgery performed by Mr Lynch on 12 November 2003.
21 The defendant submitted that I should not be satisfied that the plaintiff suffered an injury to his lower back as a result of the incident.
The Lower Back Injury-Causation
22 What is clear is that the radiological imaging undertaken many years following the occurrence of the incident demonstrate that the plaintiff has a discal abnormality at L5-S1.
23 Dr Irani referred the plaintiff to have an x-ray of his lumbar spine on 14 January 2004. The radiologist considered that there was some disc abnormality which would be better demonstrated by a CT scan.[6] Dr Irani referred the plaintiff to have a CT scan on 30 March 2004. The radiologist reported that it demonstrated, among other things, a focal left L5-S1 disc prolapse and perhaps left S1 nerve root impingement. The radiologist considered that the disc abnormality would be better demonstrated by an MRI scan.[7]
[6]PCB 137
[7]PCB 138
24 Dr Irani referred the plaintiff to Mr Lo, neurosurgeon. The plaintiff first saw him on 14 July 2009. He referred the plaintiff to have an MRI scan which was taken on 17 August 2009. The radiologist considered that it demonstrated a left paracentral disc protrusion associated with a large annular tear and perhaps a displacement of the left S1 nerve root posteriorly.[8] Mr Lo agreed with the opinion of the radiologist.[9]
[8]PCB 139
[9]PCB 61-62
25 However, the defendant contested that the incident was not a cause of the plaintiff's lower back injury, pointing to the early medical evidence and claim documents which failed to disclose a report of the occurrence of the lower back injury, and a claim for compensation for a lower back injury.
26 The question of causation is directly relevant to whether the plaintiff suffered a compensable injury to his lower back. If he is able to overcome the causation question, then as I apprehend the manner in which Mr Dawson conducted the defendant's case, there is no issue that the plaintiff has suffered an impairment of the function of his lower back; that the impairment is permanent; and that there are consequences of the impairment.
27 The question of causation also affects the plaintiff's claim that he has suffered a mental or behavioural disturbance or disorder. Dr Kwong gave evidence that the psychiatric condition from which the plaintiff suffers is secondary to the plaintiff's injuries to his right wrist and lower back. She is of the opinion that the psychiatric injury is presently more related to the plaintiff's lower back condition. As a matter of logic it must follow that if the plaintiff cannot overcome the causation issue, then he must fail in relation to the claim that he has suffered a mental or behavioural disturbance or disorder.
The Plaintiff's Evidence on Causation
28 The plaintiff saw Dr Irani on 6 March 2001 (the day before surgery) and again on 26 March 2001. He did not tell her that he was suffering from lower back pain on either of those occasions. In her report dated 26 March 2004, Dr Irani referred to the first occasion on which the plaintiff told her that he was suffering from lower back pain, and recorded the following:
"He first mentioned about back pains in April 2001, he was doing a computer course at that time. The pain was not strong on and off and was relieved with Panadeine Forte."[10]
[10]PCB 27
29 Mr Dawson asked the plaintiff why he did not relate the lower back pain to the incident. The plaintiff said:
"At that point in time my back pain started increasing and my back became more and more painful. Prior to that it wasn't hurting as much. I said the pain was increasing. The pain was increasing."[11]
[11]Transcript 25
30 The plaintiff suffered a particularly nasty injury to his right wrist which was no doubt very painful. He did not see Mr Lynch until 2 March 2001 and did not undergo surgery until 7 March 2001. I am left with the impression that the plaintiff was understandably preoccupied with the injury to his right wrist. He was aware of lower back pain, but it was modest in comparison to the pain he was experiencing to his right wrist. It was not until the coincidence of attending a computer course that he suffered an increase in his lower back pain which prompted him to see Dr Irani in April 2001.
31 The plaintiff was given prescriptions by Dr Irani for Panadeine Forte. It is probable that the medication was prescribed to treat the pain he was experiencing in his right wrist. He said that he was taking the medication to treat both the pain he was experiencing in his right wrist and his lower back.[12]
[12]Transcript 28
32 Mr Harrison submitted that through 2001, the plaintiff made a number of complaints of lower back pain to Mr Sinha, general surgeon, and Dr Rubin, general practitioner, which support of the plaintiff's claim that he did suffer lower back pain in the incident. Mr Sinha examined the plaintiff on 15 May 2001. In connection with the plaintiff’s description of the incident, he recorded the following:
"He did suffer from lower back pain with pain in the toes of his left foot some time ago, however, this has improved."[13]
[13]DCB 252
33 Dr Rubin examined the plaintiff on 20 September 2001. It would appear that he examined the plaintiff on referral by South Pacific Tyres, which I assume to be one and the same as the defendant. In his clinical notes for 20 September 2001, he recorded:
"Has some left low back pain & L toes occas pain."[14]
[14]PCB 141
34 Mr Harrison submitted that I should accept the plaintiff's evidence that he suffered lower back pain in the incident. He referred me to the plaintiff's affidavit, in which the plaintiff said:
"… Following treatment I returned to work on April 2001 … I became aware of increased pain in my lower back going into my left leg while sitting at the computer … ."[15]
[15]PCB 9
35 Mr Harrison referred me to each of the foregoing in support of a submission that I should accept that the plaintiff did suffer lower back pain and that it was in evidence during 2001, hence the complaints to Dr Irani, Mr Sinha and Dr Rubin in 2001.
36 Mr Harrison also referred me to the opinion of Dr Elder, specialist in occupational and environmental medicine, who examined the plaintiff on behalf of the defendant on 7 May 2012. Dr Elder was provided with the plaintiff's affidavit, and among other things, radiological imaging of the plaintiff's right wrist and lower back. On the basis of the plaintiff's affidavit, he gave the following opinion regarding the mechanism of injury:
"This type of jerking injury would also be consistent with an injury to the back … ."[16]
[16]DCB 298
37 Mr Harrison submitted that Dr Elder was provided with a copy of the plaintiff's affidavit, and a letter of instruction from the solicitors for the defendant, and was therefore in a position to be able to say whether the mechanism of the incident was likely to have produced an injury to the plaintiff's lower back.
38 It was my impression that the plaintiff was able to tolerate his lower back pain between April 2001 and July 2003. In July 2003, he saw Dr Irani, complaining of lower back pain and left leg pain. Coincidentally, the level of pain he was experiencing at that time occurred when he was engaged in classes in English.[17] The next occasion when he saw Dr Irani, complaining of lower back pain, was in January 2004. She recorded that he was experiencing stronger lower back pain with radiation of pain into his left leg. It was following that consultation that she referred the plaintiff to have the x-ray and CT scan referred to in paragraph 23 above. By that stage the radiology revealed a potentially dramatic discal injury.
[17]PCB 27
39 Mr Dawson cross-examined the plaintiff to determine whether he was involved in an intervening incident in April 2001, when he was undertaking the computer course, and in July 2003, when he was undertaking the English course. The plaintiff denied that there was any intervening incident, but in relation to what occurred in July 2003, he said that when he sat for more than an hour, when doing the English course, he experienced lower back pain.[18] He said that he would sit, then stand to relieve the lower back pain.
[18]Transcript 29
40 What is clear is that the plaintiff did not obtain any significant medical treatment for the lower back pain between April 2001 and July 2003 apart from the prescription of medication and the referral to have an x-ray and a CT scan.
41 The plaintiff said that it was after the second episode of surgery performed by Mr Lynch on 12 November 2003 that he experienced severe lower back pain.[19] Again, it would appear that the onset of severe lower back pain was coincidental to the episode of surgery, and not related to it in any sense. The plaintiff said that it was within a day or so of the surgery that he first experienced the severe lower back pain. Prior to that dramatic increase in his lower back pain, the plaintiff said that it was not particularly troubling pain.[20]
[19]Transcript 31
[20]Transcript 36
42 Mr Dawson cross-examined the plaintiff that despite his evidence of the time when he first suffered lower back pain, that he did not refer to having suffered a lower back injury in a Worker’s Claim for Compensation which he signed on 6 March 2001.[21] Nor in a Claim for Impairment of Benefits which he signed on 30 October 2002.[22] Mr Dawson also referred the plaintiff to the Certificates of Capacity provided by Dr Irani which refer to the plaintiff's right wrist injury from the first certificate dated 6 March 2001 until a certificate dated 3 June 2006 on which is added a reference to lower back pain.[23]
[21]DCB 1-2
[22]DCB 5-6
[23]DCB 15-145
43 From 3 June 2006 Dr Irani provided the plaintiff with certificates of capacity referring to lower back pain as well, although many of the certificates failed to refer to lower back pain. Dr Irani said that from 3 June 2006 she was of the opinion that the plaintiff's lower back injury was also incapacitating him, and that where the subsequent certificates failed to refer to the lower back pain, that it was an oversight on her part and that they should have contained such a reference.[24]
[24]Transcript 116-117
44 The balance of the medical opinions, which I will refer to in summary later in these reasons, are perhaps not as relevant to a determination of causation as the material and medical opinions which I have reviewed thus far.
45 What is very apparent to me is that the plaintiff did not consider that the lower back pain was of any particular significance until after the second episode of surgery performed by Mr Lynch. He said that repeatedly during cross-examination. That is evident from the fact that he sought and obtained very little medical treatment for the lower back until he saw Dr Irani, who then referred him to have an x-ray and CT scan in the early part of 2004. It was following 2004 that it would appear that the plaintiff's lower back pain worsened, and in particular, around mid-2006, when Dr Irani began endorsing the certificates of incapacity with a reference to the plaintiff suffering lower back pain.[25]
[25]DCB 145
46 Furthermore, by early 2007, he was experiencing increasing lower back pain and left leg pain.[26] He saw Dr Irani, who referred him to the Western Hospital for treatment.[27] He was given a local steroid injection at the L2-3 level of his lower back. It failed to give him any pain relief.[28] In her report dated 16 January 2009, it is all the more evident that Dr Irani considered that the plaintiff's lower back pain and left leg pain were worsening.[29] That becomes even more evident in her subsequent report dated 14 December 2009 in which she described a referral to Mr Lo.[30] By early 2007, and certainly by December 2009, the plaintiff reported having difficulty sitting, standing, lying in bed and sleeping.
[26]PCB 30
[27]PCB 49
[28]PCB 49
[29]PCB 31
[30]PCB 34
47 Using Dr Irani’s reports from the first dated 31 October 2003 and then her subsequent reports dated 26 March 2004; 16 June 2004; 11 April 2007; 16 January 2009; 14 December 2009, and 1 May 2012, sees a picture emerging of lower back pain and left leg pain which was tolerable until around January 2004 which worsened by mid-2006 and worsened again in 2009 and subsequently.[31] The reports are a very good yardstick to observe the downward spiral of the plaintiff's lower back injury.
[31]PCB 25-39
48 Whilst it is evident that the plaintiff did not complain often of lower back pain from 2001 until about January 2004, and made no reference to lower back pain in the claim documents to which Mr Dawson referred me, I am not satisfied that the absence of significant complaints, treatment and reference to lower back pain and left leg pain in the claim documents early on is the end of the matter. That would be to ignore the evidence of the plaintiff who quite candidly admitted that it was only after the second episode of surgery performed by Mr Lynch that his lower back pain and left leg pain became more serious.
49 I accept the plaintiff's evidence that he did suffer an injury to his lower back in the incident. I accept his evidence that the lower back pain and left leg pain he experienced was tolerable and far less significant than the injury to his right wrist which dominated his clinical treatment for some time, at least during 2001.
Terms of Settlement
50 In the course of the hearing, Mr Harrison made an addition to the plaintiff's Court Book by adding "Terms of Settlement" signed by counsel on 20 May 2010. Mr Dawson informed me that he was counsel for the defendant in a proceeding in the Magistrates’ Court which resulted in a settlement. The relevant part of the terms of settlement is paragraph 1:
"The defendants accept liability pursuant to section 98C & E of the Act, in respect of the plaintiff is claimed back injury."[32]
[32]PCB 148
51 One of the defendants to that proceeding is the defendant in this proceeding. The heading on the Terms of Settlement do not refer to the other defendant or defendants.
52 Section 98C(1) is premised on a worker suffering an injury who is then entitled to compensation for an injury which results in a permanent impairment entitling the worker to compensation for non-economic loss calculated in accordance with the section. Mr Dawson informed me that it is probable that Mr Gale, general surgeon, performed an independent impairment assessment relevant to the Terms of Settlement.[33]
[33]DCB 287-293. Mr Gale concluded that the plaintiff's whole person impairment was 5 per cent
53 Mr Dawson also informed me that the plaintiff was entitled to appeal/review the independent impairment assessment by referral to the Medical Panel. The Certificate of Opinion of the Medical Panel was issued on 30 October 2010. It concluded that the plaintiff had a whole person impairment of 11 per cent.
54 Neither Mr Harrison nor Mr Dawson informed me of what occurred following the signing of the Terms of Settlement and the independent impairment assessment or the conclusion of the Medical Panel in terms of whether the plaintiff was awarded a lump sum. The matter was left in a very unsatisfactory state.
55 Mr Harrison relied on Ansett Australia Ltd v Taylor [34] in which Ashley JA dealt with a submission that the acceptance of liability of a claim amounted to a decision that the worker had suffered a compensable injury. He then observed:
“There was, in my respectful opinion, much force in the argument advanced for the plaintiff. But in the end I do not accept it. I rather consider that a distinction should be drawn, in instances to which ss 104B and 134AB in the pertinent form apply, between cases where the assessment under s 104B(5) was provoked because the circumstances fitted s 104B(4)(a), and cases where such assessment was provoked because s 104B(4)(b) applied. In the latter situation, I would hold that the decision of a court that the Authority or self-insurer had ‘liability in relation to the claim’ would conclude the issue — in a subsequent s 134AB(16) application — that compensable injury affecting a particular part of the body had been suffered on or after 20 October 1999 where the s 98C claim raised such an allegation. But in cases where liability in relation to such a claim was accepted, I consider that the acceptance should stand only as an admission by the Authority or self-insurer, speaking for the employer, that such an injury had been sustained. Having regard, however, to the very serious consequences for the Authority or self-insurer flowing from acceptance of a claim — not only in respect of compensation payable under s 98C or s 98E, but also, potentially, with respect to s 134AB(3) and (15) — I consider that such an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.” [35]
[34][2006] VSCA 171
[35](supra) at paragraph 40
56 Both Mr Harrison and Mr Dawson submitted that the admission of liability in the Terms of Settlement does not amount to an issue estoppel, and with that I agree. However, Mr Dawson attempted to distance the defendant from the admission in the Terms of Settlement, submitting that what Ashley JA observed meant that the defendant could adduce evidence to go behind the admission, and that had been done in the manner in which the defendant defended this proceeding in terms of whether the plaintiff had suffered a compensable injury or not.
57 Mr Harrison, on the other hand, submitted that no such evidence was apparent and that the admissions stood as a significant obstacle to the defendant in being able to validly support its denial that the plaintiff suffered a compensable injury.
58 I am very disquieted by the conduct of the defendant in not producing the Terms of Settlement in the first place because it is of immense importance because of what Ashley JA observed in Ansett Australia Ltd v Taylor. Furthermore, I feel compelled to say that no effort was made by the defendant to allow me to understand what material the parties had in their possession at the time when the Terms of Settlement were signed. It was as if I was kept in the dark.
59 I propose to take a cautious approach in how I deal with the Terms of Settlement, but it is abundantly clear from the observations of Ashley JA that the terms of settlement stand as an admission by the defendant that the plaintiff suffered a compensable injury. Very significant consequences flow from the acceptance of the plaintiff's claim which led to the Terms of Settlement, they being, an entitlement in the plaintiff for lump sum compensation and a statutory obligation on the defendant to pay it. I consider the admission to be very significant without explanation by the defendant nor any attempt to adduce evidence to point to it being wrong or that there is some other complexion which I should put on the admission.
60 In any event, I am satisfied on the evidence which I have referred to earlier that the plaintiff suffered a compensable injury to his lower back independently of the admission, but I am fortified in reaching that conclusion by the admission.
61 I must add at this point that the issue of whether the plaintiff suffered a compensable injury or not seemed to be limited to the plaintiff's failure to make complaints of lower back pain and left leg pain contemporaneously with the incident; to seek treatment more frequently than he did between 2001 and early 2004; and to include a reference to lower back pain and left leg pain in claim documents.
62 Mr Dawson submitted that the plaintiff's attendance on Dr Irani in April 2001 was because of an incident while he was undertaking a computer course; that the increased pain after the second episode of surgery performed by Mr Lynch resulted in an injury; that increased pain which he experienced on 29 July 2003 when attending an English language class resulted in an injury to his lower back; and that in late 2007 the plaintiff rose from a chair, which resulted in an injury to his lower back.
63 Mr Dawson chose to describe the subsequent episodes of lower back pain as incidents which were unrelated to the claim made by the plaintiff that he suffered a lower back injury in the incident. There is no evidence that points to any of those occasions amounting to an incident resulting in an aggravation of, or independent injury to, the plaintiff’s lower back. The plaintiff's attendance at a computer course and an English language class occurs to me to be no more than a description of what he was doing and where he was when he was met with increased pain. Similarly, there is nothing to point to the second episode of surgery performed by Mr Lynch as having aggravated the plaintiff’s lower back pain, nor the occasion when the plaintiff was rising up from the chair.
64 I think the characterisation given to each of those occasions by Mr Harrison is the correct characterisation, that is, the plaintiff had suffered an injury to his lower back which was vulnerable to increases in lower back pain and left leg pain which occurred temporally connected with the occasions already described.
65 Lastly, I have reviewed all of the medical evidence in the Court Books. It is abundantly clear to me that the preponderance of the medical evidence implicates the incident as the cause of the plaintiff's lower back pain and left leg pain.
66 I do not propose to review all of the medical evidence in detail because it occurs to me that it is unnecessary except to say the following – it is inherent in the medical reports of Dr Irani that she accepts that the incident was the cause of the plaintiff lower back pain and left leg pain.[36] The following surgeons are of the same opinion – Mr Brearley, surgeon;[37] Mr Lo;[38] Mr Barrett;[39] Mr Mangos, surgeon;[40] Mr Myers, vascular surgeon;[41] Mr Grossbard, orthopaedic surgeon;[42] Mr Davie, orthopaedic surgeon;[43] Dr Poppenbeek, occupational physician;[44] and Dr Elder, consultant in occupational medicine.[45]
[36]PCB 25-39
[37]PCB 54
[38]PCB 62
[39]PCB 78-79
[40]PCB 84 and 86
[41]PCB 93
[42]DCB 272
[43]DCB 278. However, he believed that the plaintiff's lower back emerged as a result of the second episode of surgery performed by Mr Lynch
[44]DCB 281 and 283
[45]DCB 298
67 Mr Dawson was critical of the plaintiff, because when a comparison is made between the plaintiff's evidence in the histories which he gave to some of the examining medical practitioners, it is appears that the histories which some of the medical practitioners recorded are at odds with the plaintiff's evidence. However, in the main, the medical practitioners understood that the plaintiff was alleging that he suffered lower back pain and left leg pain, or at least a lower back injury, as a result of the incident. They set about the task of determining whether they accepted that position or not. I do not think the criticism is valid.
Serious Injury - The Lower Back Injury
68 Mr Dawson submitted that I had to be satisfied that the incident produced some pathological change in the plaintiff's lower back in order to be satisfied that what was later shown on the x-ray, CT scan and MRI scan was the result of the incident.
69 I reject that submission. This is a tolerably simple case from a causation point of view. It is clear to me that the plaintiff was kneeling on his right knee with his left foot on a pedal. The action of his left foot slipping off the pedal caused him to lose balance, with the result that his body moved forward. Some of the medical practitioners have referred to that mechanism resulting in a probable injury to the lower back whereas others did not, but inherent in their acceptance that the plaintiff suffered an injury to his lower back is an acceptance that the incident was the cause of the plaintiff’s lower back injury.
70 Having found that the plaintiff suffered a compensable injury in the incident, and in the absence of any other events which are likely to have caused him injury, it seems to me that what was demonstrated on the x-ray, the CT scan on the MRI scan is the product of an injury which occurred in that incident. I refer to my short summary in paragraph 67 above of the medical opinions on causation in which none of the medical practitioners doubt that the plaintiff has a discal injury, and most do not seriously doubt that the discal injury resulted from the incident.
71 I have considered the plaintiff's evidence, the evidence tendered by the plaintiff and the defendant from their respective Court Books and the submissions of both Mr Harrison and Mr Dawson. I have concluded that the plaintiff has consequences both in terms of pain and suffering and loss of earning capacity which comfortably meet the statutory test.
72 I propose to deal with the plaintiff's claim for loss of earning capacity first. I think the evidence is overwhelmingly in favour of the conclusion that the plaintiff is not fit for suitable employment as defined in the Act.
73 I accept the plaintiff's evidence that he is in a parlous state of physical health. I accept that he has fairly constant lower back pain and left leg pain. I accept that he suffers more severe episodes of lower back pain and left leg pain which sees him resort to the use of Panadeine Forte two or three times a week, taking as many as two to five tablets per day.
74 I accept the plaintiff's evidence that he encounters difficulty in standing, sitting, walking and engaging in activities such as driving his car and tolerating bending and similar actions which place stress and strain on his lower back. I do not accept the plaintiff's evidence that his capacity to stand, sit and walk is as restricted as he described in his oral evidence. However, I am not blind to the fact that estimates given by witnesses can often be somewhat wide of the mark.
75 In the film taken of the plaintiff on 17 September 2009, he sat at a café table for 40 minutes. In the film taken on 15 May 2010, he sat at the same café table for about 65 minutes. In the film taken on 17 May 2010, he sat for about 80 minutes. In the film taken on 26 July 2011, he sat for about one hour. In all the films he was observed walking. In the films taken on 17 September 2009, 17 May 2010 and 26 July 2011, he appeared to walk at a reasonable pace and with some apparent ease. However, Mr Harrison asked for the film taken on 17 September 2009 to be replayed. The first few minutes showed the plaintiff limping, favouring his left leg. The plaintiff said that he limped. Mr Harrison also asked for the film taken on 26 July 2011 to be replayed which showed the plaintiff at a supermarket standing on his right leg with his left leg extended. The plaintiff said that he stood that way because of pain in his left leg.
76 Apart from the plaintiff's capacity to walk and sit at a café table, there was nothing in the films which was dramatically different from the plaintiff's evidence, and from the histories given to be medical practitioners who examined him. I am not particularly concerned by the fact that the plaintiff was able to sit longer than he said because the two are approximate to one another. Although the plaintiff walked with ease on occasions, it is difficult for me to draw from that anything in particular which is in contrast or conflict to his evidence overall of the physical consequences of the lower back injury.
77 I am not persuaded that the films demonstrate any conduct or behaviour on the part of the plaintiff which points to anything dramatically different from the plaintiff's evidence overall.
78 The plaintiff was off work for a short period of time. He returned to work in April 2001. He commenced working two hours per day and was able to increase his hours until he was working eight hours per day. He was assigned to light duties until he was retrenched in December 2001. The duties he performed were exceptionally light. It was not a job in the real sense, but tasks created especially for him. He was required to count tyres and make a record of them. He would then sit around waiting for the next delivery of tyres so that he could do the same.[46]
[46]PCB 9-10 and transcript 77
79 The plaintiff has not worked since December 2001. Through Dr Irani, he has undertaken medical treatment comprising the use of medication and physiotherapy, and treatment by Mr Lo in 2009.[47] Through the Victorian WorkCover Authority, he was referred to IPA Rehabilitation, which undertook vocational assessments of the plaintiff to determine his suitability to return to work.[48]
[47]PCB 10-11
[48]PCB 10 and DCB 300-341
80 Mr Dawson challenged the plaintiff's evidence that he is unfit for suitable employment. I thought the plaintiff gave his evidence in a straightforward and believable fashion. Apart from some conflict in the plaintiff's evidence of his capacity to stand, sit and walk demonstrated in the films, I did not think the films dented his credit significantly, and certainly not to the extent that I disbelieve any of his evidence regarding the nature and extent of the disablement which he experiences due to his lower back pain and left leg pain on a day-to-day basis.
81 I will now turn to the medical evidence. I propose to deal with the evidence of the plaintiff’s treating medical practitioners first. Dr Irani,[49] Mr Lo[50] and Mr Barrett[51] were all of the opinion that the plaintiff had suffered discal injury consistent with the x-ray, the CT scan and the MRI scan.
[49]PCB 38
[50]PCB 62
[51]PCB 76a-76b; 79 and 83
82 Dr Irani is of the opinion that the plaintiff is not fit for suitable work. The most recent medical certificate in contained in the defendant’s Court Book, and is dated 15 January 2011. Dr Irani certified the plaintiff as being unfit for any duties.[52] The injuries which she considered had produced that level of incapacity for any duties were both the plaintiff's lower back injury and depressive illness. In her last report dated 1 May 2012, she repeated the substance of the endorsement on that certificate of incapacity that in his current state the plaintiff is unfit for his pre-injury duties, and with a lack of training and skills, he would have difficulty being gainfully employed again.[53]
[52]DCB 11
[53]PCB 39
83 Mr Dawson challenged Dr Irani's opinion, and in particular, he referred to certificates of incapacity which she provided the plaintiff in which she certified him as fit for alternative duties. I accept Dr Irani's evidence that the reason why she certified the plaintiff in that way was to encourage him to look for work and to avoid prospective employers not entertaining the plaintiff's application for employment.[54]
[54]Transcript 117-118
84 Mr Dawson submitted that Dr Irani had conceded that the plaintiff was fit for suitable employment by saying that if there was some suitable work available then perhaps he could try to do that work. It was not a concession. It was my strong impression that Dr Irani did not hold out any hope that the plaintiff would be able to find employment that would be suitable.[55]
[55]Transcript 118
85 Mr Lo did not specifically address the question of the plaintiff’s suitability for work, but on the basis of the history obtained from the plaintiff and his examination of him, he considered that the plaintiff’s prognosis was poor. The basis for that opinion was that he saw no improvement in the injuries to the plaintiff’s lower back and in his left leg pain after initially seeing him 14 July 2009 and after reviewing him on 13 October 2009.[56]
[56]PCB 61-62
86 Mr Barrett first saw the plaintiff on 1 December 2009 on referral from Dr Irani. He last reviewed him on 6 March 2012 on a medico-legal basis. In each of his reports dated 2 December 2009;[57] 5 January 2010;[58] and 13 March 2012, he was of the opinion that the plaintiff had no capacity to return to even light or limited part-time employment into the foreseeable future.
[57]PCB 76a-66b
[58]PCB 77-80
87 Mr Brearley,[59] Mr Mangos[60] and Mr Myers[61] accepted that the plaintiff suffered an injury to his lower back consistent with the diagnosis made by Mr Lo and Mr Barrett. Mr Brearley was of the opinion that the plaintiff had no work capacity. Mr Mangos thought the plaintiff might have a residual capacity for work. Mr Myers did not express an opinion in the same way, but considered that the plaintiff needed to be referred to a neurosurgeon or an orthopaedic surgeon to give consideration to spinal surgery.
[59]PCB 53-55
[60]PCB 86
[61]PCB and 93-94
88 Mr Grossbard,[62] Mr Davie,[63] Dr Poppenbeek,[64] Mr Gale[65] and Dr Elder[66] accepted that the plaintiff was suffering from an identifiable condition in his lower back. Mr Grossbard, Mr Davie and Dr Poppenbeek did not have the benefit of the MRI scan and the emerging clinical picture which other medical practitioners had who examined the plaintiff. However, they each appear to have considered that the plaintiff had a lower back condition which was incapacitating. Mr Gale’s opinion is of limited value because he was directed solely to undertaking an impairment assessment. Dr Elder’s opinion is probably of greater weight because he agreed with the diagnosis made by Mr Lo and Mr Barrett and was of the opinion that the plaintiff was only fit for light assembly, packing and filling, mail sorting, quality-control type work.[67]
[62]DCB 271-272. It should be noted that Mr Grossbard examined the plaintiff on 5 October 2004 and before the MRI scan and did not have the advantage afforded to the other medical examiners who examined the plaintiff later with the full clinical and radiological picture of the plaintiff.
[63]DCB 278. Mr Davey was in a similar position to Mr Grossbard. He last examined the plaintiff on 5 November 2009.
[64]DCB 283-285. Dr Poppenbeek was in a similar position to both Mr Grossbard Mr Davie. He examined the plaintiff on 25 November 2008.
[65]DCB 289-290. Mr Gale examined the plaintiff on 10 August 2010 for the purpose of undertaking an impairment assessment.
[66]DCB 298
[67]DCB 298
89 The opinions of the medical practitioners who examined the plaintiff after the MRI scan was taken are the more relevant opinions to be considered because by the time the MRI scan was taken, the plaintiff’s clinical picture was very apparent, as was the nature of the pathology which was the cause of his lower back pain, left leg pain and level of his disablement.
90 I accept the opinions of Dr Irani, Mr Lo, Mr Barrett, Mr Mangos, Mr Myers and Dr Elder that the plaintiff suffered a major injury to his lower back comprising the discal injury demonstrated on the MRI scan with the onset of left leg pain related to the discal injury. I also accept their evidence that the plaintiff is unfit for his pre-injury work. I accept the evidence of Dr Irani, in particular, that the plaintiff has a poor prognosis and is not fit for suitable employment. I was very impressed with her evidence. I thought she had a very good understanding of the plaintiff overall, and a very particular understanding of his lower back injury and the extent to which it has disabled him. What is clear from the other treating medical practitioners, namely, Mr Lo and Mr Barrett, is that they considered the plaintiff had a poor prognosis. Mr Barrett was categoric in the expression of his opinion that the plaintiff has no capacity for suitable employment and will not have a capacity in the future.
91 I accept the plaintiff's evidence that at first blush the types of alleged suitable employment, put to him by Mr Dawson during cross-examination, may be within his capacity; however, the descriptions of mail sorting clerk[68] and stock and purchasing clerk,[69] among many others, do not appear to be suitable work. The job descriptions are difficult to understand in the context of the physical requirements of each of the jobs, and Dr Elder's opinion that some of those jobs are suitable is expressed in such a manner that it is difficult to understand how he arrived at the conclusion that they are suitable. In any event, I am ultimately persuaded that the plaintiff is essentially disabled to the extent that he is incapacitated for suitable work.
[68]DCB 316 and 334
[69]DCB 336
Serious Injury - the Psychiatric Injury
92 Unlike the plaintiff's claim relevant to his lower back, the claim that his psychiatric injury is severe in terms of loss of earning capacity is very compelling, and indeed, overwhelming.
93 Mr Dawson cross-examined both Dr Irani and Dr Kwong, challenging their opinions that the plaintiff's psychiatric injury resulted in the plaintiff suffering an incapacity for work. The evidence of Dr Kwong, elicited during the cross-examination, was compelling of the conclusion that the plaintiff has practically no capacity for work by reason of a psychiatric injury.
94 Dr Kwong began treating the plaintiff on 17 February 2010, on referral by Dr Irani. Her evidence was that before she prescribed him medication (now Cymbalta) to treat what she described as an Adjustment Disorder with Mixed Anxiety and Depressed Mood, he was depressed and non-functioning. She described his state as follows:
Q:“… but if that medication was to be ceased or reduced, do you have an opinion as to what would be the likely outcome, based on your expertise?---
A:I think he will turn into as depressed and non-functioning as he was two years ago. Not able to sleep, not able to relate to other people, just withdrawn into himself. More suicidal, taking too much analgesics."[70]
[70]Transcript 85
95 Although the medication assisted the plaintiff to moderate his depression, it had side-effects which Dr Kwong described as follows:
A:“… But now looking back on it, the medication and the treatment incapacitated him and he can't do without the treatment. So that together, he will be quite incapacitated. I think he would be totally incapacitated for the kind of job he has to do.
Q:Is it your evidence, doctor, as I understand your last answer, the medications he took incapacitated him further?--
A:Incapacitated him further but without the medication his depression and anxiety, panic attacks and all, that will surface and that in itself also incapacitated him.
Q:You would agree there's lots of people in society who are taking antidepressants who are still able to hold down a full-time meaningful job?---
A:Yes. Depends on the nature of the job because if the job is a sedentary, don't have to think, don't have to work with other people, don't have to be under pressure, don't have to be sharp and be alert, then you can but if you need to handle machinery, have to be precise, have to be on time, have to be regular, have to be cooperating with other people, that would be incapacitating.
Q:So a job, say, sorting mail, that sort of thing, that would be okay?---
A:I think with sorting mail you still need accuracy. You still have to turn up on time to work and work a certain amount of hours."[71]
[71]Transcript 86-87
96 Dr Kwong essentially said that the plaintiff would be in a parlous state without the medication she is presently prescribing him, but the side-effects of it are also disabling. The benefits to the plaintiff are that the very serious consequences of the psychiatric injury are alleviated by the medication, and as I understood her evidence, the plaintiff is better off with the medication, but has to put up with the disabling side-effects of the medication.
97 Mr Dawson also cross-examined Dr Kwong regarding the plaintiff's capacity to function at the level seen in the films. He did not show Dr Kwong any portions of the films. She did not accept that the plaintiff's capacity to interact with others was contrary to the conclusion she reached regarding the nature and degree of his depressive illness.[72]
[72]Transcript 97-98
98 It is clear that Dr Irani has seen the plaintiff often and is a very good position to make an assessment of the plaintiff. She gave a telling answer when asked by Mr Dawson to assess the treatment provided by Dr Kwong when she said:
Q:“You would agree since receiving treatment from Dr Kwong he's improved in some way? Are you able to elaborate on that?---
A:Well, to me he still looks very depressed. He still looks very depressed when I see him in the morning – when he comes to see me, yes. He takes some medication. I'm not too sure what he's on but to me it seems like he's quite dejected, depressed. He's always very sad looking, not happy looking, you know."[73]
[73]Transcript 119
99 I was impressed by the evidence of Dr Kwong. She has treated the plaintiff for just over two years. She has seen the plaintiff go from a parlous state of psychiatric health to a better state through her treatment and the use of medication, but it is obvious from her evidence that he is still in a parlous state. The extent to which he is adversely affected by the psychiatric illness is made all the more obvious by the evidence of Dr Irani. Her observation, together with the evidence of Dr Kwong, that the plaintiff looks depressed and looks dejected, depressed and sad, supports the conclusion I have reached that the plaintiff is also incapacitated for work by his psychiatric injury and is incapacitated for suitable work.
100 I am fortified in reaching that conclusion by the evidence of Dr Nathar, psychiatrist, who examined the plaintiff on a December 2009[74] and 24 January 2012.[75] He was of the opinion that the plaintiff was moderately to severely depressed and anxious and was suffering from a moderately severe Adjustment Disorder with Anxiety and Depressed Mood and also a moderately severe Chronic Pain Disorder. He considered that the plaintiff was totally and permanently incapacitated for his pre-injury alternative duties.[76]
[74]PCB 64-70
[75]PCB 71-76
[76]PCB 73-75
101 The defendant had the plaintiff examined by Dr Fail, psychiatrist,[77] and Dr Mendelson, psychiatrist.[78] Their opinions are of limited value because they examined the plaintiff about nine years ago, and before his clinical picture became apparent to Dr Irani, driving her to refer the plaintiff to Dr Kwong for psychiatric treatment.
[77]DCB 254-256. He examined the plaintiff on 23 January 2003
[78]DCB 261-269. He examined the plaintiff in June 2003.
Conclusion
102 In relation to the plaintiff's claim for his lower back, I find that he suffered an injury to his lower back consistent with the diagnosis of Dr Irani, Dr Lo and Mr Barrett; that the injury impairs the function of his lower back; that the impairment is permanent, and the consequences in terms of loss of earning capacity are at least very considerable for the reasons outlined above.
103 In relation to the plaintiff's claim for the psychiatric injury, I find that he has suffered a mental or behavioural disturbance or disorder; that the impairment caused by it is permanent, and the consequences in terms of loss of earning capacity are severe.
104 Having found on behalf of the plaintiff in relation to both claims for loss of earning capacity, it does not necessitate a separate finding for pain and suffering consequences.[79]
[79]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
105 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB (16)(b) of the Act to recover damages for injuries for pain and suffering and loss of earning capacity, with respect to both injuries, arising out of his employment with the defendant.
106 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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