Mirigliani v Consolidated Property Services (Aust) Pty Ltd
[2011] VCC 594
•20 May 2011
| IN THE COUNTY COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE CIVIL DIVISION DAMAGES AND COMPENSATION LIST SERIOUS INJURY DIVISION |
Case No. CI-10-01793
| ANTONIO MIRIGLIANI | Plaintiff |
| v | |
| CONSOLIDATED PROPERTY SERVICES (AUST) PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE GINNANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 February 2011 |
| DATE OF JUDGMENT: | 20 May 2011 |
| CASE MAY BE CITED AS: | Mirigliani v Consolidated Property Services (Aust) Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 594 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – pain and suffering – lower back pain injury – previous injury – whether progression of degenerative condition – material contribution of work – Accident Compensation Act 1985 s.134AB.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Sala | Hymans Solicitors |
| For the Defendants | Ms M Britbart | Wisewould Mahony |
| HIS HONOUR: |
1 Antonio Mirigliani is aged sixty-seven years. He claims that he injured his lower back whilst working for Consolidated Property Services (Aust) Pty Ltd and seeks leave under s.134AB of the Accident Compensation Act 1985 (“the Act”) to issue common law proceedings to recover damages in respect of pain and suffering.
2 To obtain leave, Mr Mirigliani must establish that he has suffered a “serious injury” as defined. He argues that he has suffered such an injury, either on 9 October 2007, or because his work with Consolidated Property Services between 2000 and 2007 was a material contribution to the aggravation or acceleration of a degenerative back injury.[1] The definition of “injury” in s.5(1) of the Act, includes:
“(c) a recurrence, aggravation, acceleration, exacerbation or
deterioration of any pre-existing injury or disease.”
[1] Transcript (“T”) 86, 93
3 Consolidated Property Services contended that Mr Mirigliani bore the onus of proving that his employment caused and/or aggravated the impairment of his low-back and that that injury was a serious injury. It contended that Mr Mirigliani’s employment did not contribute to the current impairment of his low- back; or alternatively, that it was not a material cause of the current low-back condition. It contended that given the level of degeneration in his low-back prior to his employment, his current state was due to the natural progression of his spinal degeneration.[2]
[2] T 60
4 Mr Mirigliani relied on the following details of his lower back injury:
• severe injury to the lower back with restriction of movement; •
causation, activation and/or aggravation of degenerative changes to the lower lumbar region;
•
mild generalised disc bulge at the L1-2 level with pain and tenderness and restriction of movement;
• disc bulge at L2-3 level with bilateral foraminal narrowing; • L3-4 disc bulge with foraminal narrowing; •
L4-5 generalised disc bulge with mild facet joint degenerative changes with left foraminal narrowing;
• severe lumbar scoliosis; •
severe pain and tenderness to the lower lumbar region with severe restriction of movement with pain and tenderness on exertion, bending and twisting;
• anxiety and depression; and • pain and shock. 5 Mr Mirigliani described the events of 9 October 2007 in his first affidavit as follows:
“… I attended my work at the usual time and at about 4.00 or 4.30 am I was at the Riverside Quay picking up the rubbish bags from the restaurants and throwing them into the compactus bin when I felt a sharp pain while lifting one of the heavy bags. I had difficulty raising it above head level as it proved to be just [too] heavy, and as I threw it into the bin, I felt a severe pain in the lower back. I tried to continue work, but found my back had bent in a stooped position and I could not straighten up. I ceased work immediately and sought medical assistance. The back pain increased in severity enormously as my back cooled during the morning.”
6 Counsel for Consolidated Property Services referred to the Court of Appeal decision of Grech v Orica Aust Pty Ltd,[3] in which Ashley JA stated the determinative question in cases similar to the present to be whether the plaintiff had suffered an identifiable compensable injury after 20 October 1999 which resulted in or materially contributed to the consequences which the plaintiff claimed constituted serious injury.[4]
[3] (2006) 14 VR 602 at [58]
[4] supra at [79]
7 Both counsel agreed that the key question was whether Mr Mirigliani’s 2007 injury and/or the work performed for Consolidated Property Services were a material contribution to the current impairment of the lower back.[5]
[5] T 59
Evidence before the Court
8 Mr Mirigliani was the only witness in the proceeding. He filed two affidavits. In addition, medical reports and other documents were tendered. None of the doctors, whose medical reports were relied on, was called to give evidence. Surveillance DVD footage was also tendered.
Mr Mirigliani’s Work History
9 Mr Mirigliani was born in Italy and completed school to Grade 1 level and later commenced an apprenticeship in carpentry. In 1971, when a fully qualified carpenter, he migrated to Australia, where he initially worked as a carpenter on large building sites doing heavy work. He left the building industry in 1987, not having suffered any work-related accidents.
10 In 1987, Mr Mirigliani purchased a 3 ton truck and worked as a removalist, for about three to four years, again suffering no injuries. He then drove a delivery van for about six years, doing lighter work. He was constantly employed and did not suffer any injuries.
11 In December 1990, Mr Mirigliani commenced employment as a storeman, forklift driver and general labourer. He unloaded containers into a storeroom and prepared sales and deliveries.
12 On 21 May 1991, a fellow worker, while unloading a container, dropped a heavy box, which hit Mr Mirigliani on the head, neck and right shoulder. He felt pain, particularly to his neck and right shoulder, but continued working. He saw a doctor and had some short periods of physiotherapy.
13 In May 2005, Mr Mirigliani consulted Dr M Mundae, a general practitioner.
14 On 26 April 1996, Mr Mirigliani, while carrying out lifting and stacking work from containers, suffered injury to his neck, shoulders and right arm. The condition of his right arm and neck became so severely aggravated that he was obliged to stop work.
15 In December 1997, a double fusion in his cervical spine was performed. This helped to reduce his pain in his right upper arm and improved his right shoulder and arm mobility.
16 Mr Mirigliani received WorkCover payments. In his WorkCover claim of 9 May 1996, he identified his injury as a back sprain and the part of the body affected as his back. He commenced County Court proceedings against his employer on 31 July 2007. He particularised his injuries as including injuries to his cervical spine, right arm and fingers, right shoulder and right rotator cuff. He also particularised an injury to his back as:
“Causation, activation and /or aggravation of degenerative changes in the
lumbo-sacral spine with pain radiating down the right leg.”
17 He settled his Court proceeding in 1999, receiving $215,000 for the injury and for economic loss.
18 Following the 1996 injury, Mr Mirigliani suffered irregularly from back pain, but on his evidence, it took second place to the pain in his neck and right arm. The surgery to his neck relieved him of considerable pain and restriction of movement in the neck. His right arm pain remained painful although of diminishing severity. He stated in his first affidavit that:
“Occasionally I was still suffering from lower back pain, but not to any degree that I had in the neck and not to any degree that I was necessarily required to stop work. Usually with medication, the pain in the lower back would go, and I was able to carry out my normal work with the Respondent with whom I was employed as a cleaner.”
19 There was confusion in Mr Mirigliani’s evidence under cross-examination as to the chronological order of the injuries set out above, particularly in his identification of which event occurred in 1991 and which occurred in 1996. However, the medical records establish that the order of events was as described above.
The Medical Evidence of the Effects of the 1996 Injury
20 Consolidated Property Services relied on the evidence of the effects of the 1996 injury as indicating that Mr Mirigliani had a degenerative back condition and that the restrictions he now experiences in his lower back are a result of the progress of that condition.
21 The settlement that Mr Mirigliani achieved in 1999, in a proceeding in which he relied on injuries to his lumbar spine, is an additional reason to keep in mind the onus on Mr Mirigliani to establish the serious injury on which he now relies.
22 I will set out the evidence relevant to the identification of the effects of the 1996 injury.
23 Mr Mirigliani attended Dr Mundae on 30 April 1996 complaining of an onset of back pain in the lower back, which radiated down his right leg, and a worsening of the neck injury.
24 A CT scan of the lumbar spine of 13 August 1996 concluded that there were minimal degenerative changes and that there was no evidence of disc herniation or canal stenosis.
25 There were a number of medico-legal reports obtained apparently by, or on behalf of WorkCover, or relevant insurers, in connection with the 1996 injury.
26 On 18 September 1996, Mr Mirigliani saw Mr J Rowe, a specialist occupational physician, complaining of low-back pain and neck pain. Mr Rowe stated that the low-back pain could be related to musculoligamentous strain, that would resolve.
27 Mr U Rossi, a consultant neurosurgeon, examined Mr Mirigliani on 24 January 1997. He considered that he had suffered a lumbosacral strain and musculo- tendinous strain to his right shoulder as a result of the incident on 26 April 1996. Mr Rossi considered that the conditions in the cervical and lumbar spine and in the right shoulder joint had developed on a background of degenerative disease and had a poor prognosis because they were progressive and irreversible.
28 Dr C Baker, a specialist in occupational medicine, saw Mr Mirigliani on 27 March 1997. Mr Mirigliani told him that since the April 1996 injury, he had had problems with his arms and over the right side of his neck and lower back. He experienced pain in his lower back, which he minimised by moving about. He could not bend his back, but tended to kneel to pick up objects from the floor. He was able to shower and dress, but had difficulty putting on his shoes and socks. He walked with a limp in his right leg, which was stiff. He was able to stand and sit, but not in one position for too long. He could drive a car using his left hand. His sleep pattern was disturbed, being limited to 3.5 to 4 hours per night and he took sleeping tablets to help him sleep. In addition, he took Panadeine Forte and Codral Forte as painkillers, and an anti-inflammatory.
29 Dr Baker found that Mr Mirigliani exhibited marked restriction of movement of the thoracolumbar spine. He concluded that Mr Mirigliani was suffering degenerative changes in his lumbar spine, with referred pain to the right leg. He considered that Mr Mirigliani’s condition would progress with age, although there would be some improvement. He was fit for restricted duties.
30 On 10 April 1997, Mr Mirigliani attended Mr P Dohrmann, a neurosurgeon. He reported that Mr Mirigliani had serious and long-term impairment because of his neck injury. The injury to the lower back was less significant and serious. He did not foresee Mr Mirigliani being able to return to his pre-injury employment.
31 On 30 April 1998, Mr Mirigliani saw Mr K Elsner, an orthopaedic surgeon. Mr Mirigliani told Mr Elsner of the cervical fusion, but said that he still experienced neck pain, for which he took Panadeine Forte. Mr Elsner noted that Mr Mirigliani sat, stood and walked in a normal manner. He reported that there was tenderness to very light palpitation, along the whole of the back of the neck and along the lower half of the lumbar spine and sacrum. All movements were reduced in range and Mr Mirigliani complained of severe pain along the lower half of the lumbar spine and sacrum. Mr Elsner concluded that Mr Mirigliani’s previous work was not a significant contributor to his lumbar degenerative changes, which he described as a “mild back impairment”.
32 Mr Mirigliani was next seen by Mr B Davie, a consultant orthopaedic surgeon, on 6 August 1998. Mr Mirigliani informed Mr Davie that his right arm pain had improved, but his neck was still stiff and painful. He had some intermittent lower back pain and pain in his legs at times, and some numbness in the right index finger. He was able to drive a car, but could not garden or play any sports. Formerly he had played soccer and performed gymnastics and weightlifting. His general health and appetite were good, but he was very depressed.
33 Mr Davie considered that Mr Mirigliani had some pre-existing cervical disc disease and lower lumbar disc degenerative changes at L5-S1, which were not significantly contributed to by his employment, but were more likely to be degenerative in origin. The back pain which developed in April 1996 appeared to have largely subsided and was intermittent. Any lower back symptoms were likely to be due to degenerative disc disease and run an intermittent course.
Mr Mirigliani’s Employment with Consolidated Property Services
34 In 2000, Mr Mirigliani commenced work with Consolidated Properties Services as a cleaner, and later also became a supervisor of another employee. He worked from 4.00 am to 4.00 pm every weekday, mainly at three buildings, one of which was Riverside Quay, Southbank Boulevard. A significant part of his duties was picking up rubbish bags from bins located near the buildings and putting them into a compactus dump. The bags were heavy, occasionally extremely heavy, weighing up to 45 kilograms, and he was required to lift them well above head height and throw them into the compactus bin. He stated that he had complained to his employer about the height of the compactus bin and that it was causing problems to his back.[6]
[6] T 51
35 Mr Mirigliani gave a description of his work to Dr Wyatt, an occupational physician, whom he attended in February and June 2008. Dr Wyatt’s first report contained the following:
“Last year Mr Mirigliani says the job became more demanding. A particular restaurant opened and Mr Mirigliani says they were regularly placing heavy rubbish bags near the skip and he needed to load those into the skip. He said they could be quite heavy and it would be difficult for him to lift the goods into the skip. He brought photos of the job and activity, and this showed [him] lifting a large heavy rubbish bag up to full outstretched position overhead to get the goods into the skip.
In early 2007, Mr Mirigliani said he started to get back problems. He had previous mild backache over the years but this backache was more troublesome. Mr Mirigliani says he reported the problem to his manager, although nothing was done. He says he asked his area manager to come out on to the site and showed him a bag that needed to be lifted, and the manager was unable to lift the bag. Nevertheless, Mr Mirigliani says no action was taken to address the issue.
His back problem became more troublesome and eventually in October
2007 Mr Mirigliani says his doctor placed him off work.”
Mr Mirigliani’s Medical Treatment in 2006 and 2007 before 9 October 2007
36 Mr Mirigliani’s evidence was that by 2004 and 2005, the niggly pain he experienced in his back began to increase.
37 There were no reports in evidence from general practitioners whom Mr Mirigliani attended between 1996 and 2006, although he agreed that he had been taking Panadeine Forte, a prescription drug, throughout that period.
38 In October 2006, Mr Mirigliani commenced attending the practice of Dr Kazi, a general practitioner. He gave a history of lower back pain, and in February 2007, complained of lower back pain radiating to the right leg. In April 2007, he presented with right arm pain and told Dr Kazi that he had to lift heavy bags at work and complained of pain in the neck, shoulder and elbow to wrist.
39 On 15 June 2007, Mr Mirigliani complained of back pain, bending and heavy lifting at work, which he asked Dr Kazi to record, because he considered it work-related.
40 A CT scan of the lumbar spine of 19 June 2007 showed significant lumbar scoliosis and marked degenerative changes at all disc levels except L4-5 and L5-S1.
41 Dr Kazi’s notes of 6 July 2007 refer to a history of work-related injury. They state:
“X-rays scoliosis, advised to claim WorkCover and go for surgery.”
42 Dr Kazi’s notes of 27 July 2007 recorded that Mr Mirigliani again complained of work-related back pain and that a CT scan of the lumbosacral spine was requested. On 3 August 2007, he complained of worsening back pain with resultant difficulty in sleeping.
43 A CT scan of the lumbar spine on 31 July 2007 showed evidence of multi- level disc degeneration and multi-level canal stenosis, most marked at the L4- 5 level.
44 Dr Kazi referred Mr Mirigliani to Mr P Wilde, an orthopaedic surgeon, for further management of back pain, and to another doctor for right-sided carpal tunnel release.
45 On 14 September 2007, while waiting to see the specialists, Mr Mirigliani complained to Dr Kazi of right arm and back pain and was given Panadeine Forte and Temaze tablets.
The Medical Evidence Since the October 2007 Injury
46 Mr Mirigliani has not returned to work since 9 October 2007. A return to work program was devised but, according to Mr Mirigliani’s account to Dr Kazi, was not implemented. He stated that although the pain in the right arm had continued, it was not debilitating, but the back pain had caused him a great deal of concern. He also suffered from a left inguinal hernia, the pain of which was bearable.
Dr Kazi – Mr Mirigliani’s General Practitioner
47 Dr Kazi’s notes for 10 October 2007, the day after the injury, recorded:
“Right arm pain and lower back pain worsening. He was unable to sleep or work. A WorkCover certificate was issued as Un-Fit for work from 9.10.2007 with diagnosis of right sided carpal tunnel syndrome and chronic Lower back pain due to disc degeneration. He remains Un-Fit for work to date on WorkCover certificates ….
In my opinion he is un-fit to go back to any kind of work ever again as he is a 64 year old gentleman with severe disc degeneration on lumbar spine due to carpal tunnel syndrome. His right shoulder has not been investigated yet as it is possible to get radiating pain from carpal tunnel syndrome.”
48 . On 23 May 2008, Dr Kazi reported:
“In my opinion employment is [a] significant contributing factor due to repetitive nature of work over the years which includes frequent lifting and bending.”
49 Dr Kazi’s report of 13 March 2009 stated that Mr Mirigliani remained on WorkCover certificates as un-fit for any duties from 9 October 2007 to 24 August 2008. His diagnosis included multi-level disc degeneration, with spinal canal stenosis, most significant at the level of L4-5. He diagnosed scoliosis, right-sided carpal tunnel syndrome, right-sided inguinal hernia, chronic obstructed airways disease and non-insulin dependent diabetes.
50 The most recent lumbar spine CT scan was performed in November 2010 and found multi-level thoracolumbar spondylosis and moderate rotation of the left concave scoliosis. There was multi-level facet and disc degenerative changes. Disc degenerative processes had resulted in a moderate thecal sac stenosis at L4-5 and a mild to moderate narrowing at L3-4.
51 Mr P Wilde, orthopaedic surgeon, provided three reports. The first related to an attendance by Mr Mirigliani on 31 October 2007. Mr Wilde stated:
“Mr Antonio Mirigliani is a sixty-four year old man with a chronic lumbar spinal condition. His symptoms first developed with an injury as described above. Prior to this injury he denied significant lumbar symptoms.
The diagnosis is aggravation of lumbar spondylosis without radiculopathy. As he did not suffer with symptoms prior to his injury, I feel that the injury as described above has been a significant contributing factor. It is likely there was a degree of asymptomatic degenerative disc disease prior to this injury; however, the injury caused further internal disc derangement thus precipitating symptoms.
Until now, treatment has been conservative and comprised of only rest and analgesic medication. I advised him to undergo active treatment with physiotherapy, as described above. Future treatment should remain along conservative lines. At present, I do not believe that surgery is indicated; however, should his condition deteriorate in the future then surgery might be required.
The prognosis is guarded and I expect that he will always suffer with low- grade symptoms of chronic lumbar pain and stiffness. He will have to modify personal and work activities to accommodate his symptoms to avoid further deterioration.
The condition has stabilised.
At present he is not able to return to his full pre-injury work as a cleaner or other forms of physical or manual work”.
52 Mr Wilde re-examined Mr Mirigliani on 20 October 2009 and repeated his diagnosis. He considered that Mr Mirigliani had sustained “a significant or marked injury to his low-back”.
53 Consolidated Property Services submitted that Mr Wilde had not been informed of the 1996 injury and that his opinions, which were premised on Mr Mirigliani having an uninjured back, were affected as a result. However, his letter of 20 October 2009 records that he had received and reviewed x-rays and CT scans from 1996.
54 In June 2009, Mr Mirigliani underwent bilateral trans-foraminal injection and multidisciplinary assessment at The Royal Melbourne Hospital Pain Clinic. According to Mr Wilde’s record of Mr Mirigliani’s instructions, that injection provided no benefit to him. No report of the multidisciplinary assessment was in evidence.
Consolidated Property Services’ Medico- Legal Evidence
55 Consolidated Property Services relied on a report of Mr J Hooper, orthopaedic surgeon, made after a consultation with Mr Mirigliani on 16 November 2010. Mr Hooper reported that:
“… He is over-weight and somewhat unfit. His lumbar movements are significantly restricted. Forward flexion is limited to 40 degrees and extension to 10 degrees with discomfort. Rotation and lateral flexion are limited to 10 degrees, again with discomfort, and on the couch straight leg raising is only 60 degrees on both sides.
X-rays of his back reveal he has multi-level degenerative disc disease which is constitutional wear and tear.
…
He has evidence of degenerative disc disease and chronic lower back pain that has been aggravated by his work.
I believe the effects of this aggravation were temporary and he would be in the position he is in now to a large extent due to the presence of the degenerative disc disease he has in his back and whilst the injury of October 2007 precipitated his symptoms, it did not cause the underlying pathology.”
56 Mr Hooper also noted that Mr Mirigliani was asked to do heavy work, lifting 40 kilograms above shoulder level, which he considered was not very realistic for a man of sixty, and this had precipitated his back condition. However, that comment is to be read in the context of Mr Hooper’s opinion, that there was evidence of significant degenerative disease in his low-back.
57 As previously stated, Mr Mirigliani was seen by Dr M Wyatt, occupational physician, in February 2008. She found a flattened lumbar curve.
The Surveillance DVDs of Mr Mirigliani
58 Consolidated Property Services tendered DVD footage taken on 20 and 21 January 2011 and on 1, 3 and 6 February 2011. It showed Mr Mirigliani going to purchase his morning paper, attending a supermarket and fruit shop carrying what appeared to be reasonably heavy groceries, back to his car. They were identified in evidence as being containers of oil weighing 4-litres each. The footage showed him bending down on a number of occasions, including to place something in a basket. It also showed him attending other venues in a shopping centre and walking some distance from the shopping centre to his car. It also showed him visiting, and spending time, at a poker machine venue.
59 The surveillance evidence showed Mr Mirigliani bending to pick up an ATM card on one occasion, without evident pain.
60 His walking as shown in the DVD footage appeared somewhat restricted and displayed, on occasion, a stiff leg gait.
61 The surveillance evidence has to be considered as a whole and in conjunction with the other evidence. When so considered, I found it of limited assistance in determining this application.
The Submissions of the Parties
Mr Mirigliani
62 Mr Mirigliani contended that he suffered an injury in October 2007. Secondly, or alternatively, he suffered an injury as a result of an aggravation or acceleration of the degeneration of his back, occurring because of the work he performed for Consolidated Property Services between 2000 and 2007.
63 There was not much wrong with his back in 1996. This was evidenced by his ability to return to work in 2000 and work without any apparent sick leave for seven years. There was a huge deterioration in the condition of his back between 2000 and 2007.
64 The CT scans and x-rays in 1996 revealed that at that time, he did not suffer any significant degenerative condition of his lower back. A comparison of the scans of 1996 and 2007 showed the difference. Mr Mirigliani did not work between 1996 and 2000.
65 Mr Hooper had been given an incomplete history or had misunderstood the effect of the 1996 CT scans.
Consolidated Property Services
66 Consolidated Property Services submitted that the 2007 injury and Mr Mirigliani’s work between 2000 and 2007 were not material contributions to any current impairment that he suffered. Mr Mirigliani was able to work. He was a retired man, who had no desire to return to work. He stopped work because of his age.
67 Mr Davie, in 1998, diagnosed a degenerative condition in Mr Mirigliani’s lumbar spine, a condition prone to maintain an intermittent course. There was continuity between the views of Mr Davie and the conclusions of Mr Hooper in 2007.
68 The 2007 incident caused a temporary aggravation of his lower back, but the ongoing nature of the symptoms and restrictions was due to this underlying condition. He would have ended up in his present situation regardless of the 2007 incident.
69 Mr Mirigliani bore the onus of proving that he had suffered a very considerable and marked impairment. Any impairment that he had suffered was at the lower end of the scale.
70 In addition, Mr Mirigliani had exaggerated his symptoms, suggesting that he was suffering from a life of debilitation and pain, when the surveillance vision showed that he could carry out, albeit subject to some restriction, normal everyday tasks. He had complained of the same symptoms both in 1996 and after the 2007 incident. His complaints outlined in his second affidavit had been conceded to be inaccurate. He had not mentioned his earlier back pain in his first affidavit. He had been on the same medication since 1996. He had suffered ongoing back pain from 1996. He was not seeking further treatment.
71 He had retained significant capacities, including shopping, driving a car, and helping around the house.
72 The Court should not draw conclusions contrary to the medical opinion of Mr Hooper because of the contents of the x-rays and MRIs relied on by Mr Mirigliani.
Consideration of Evidence and Submissions
73 The first question is whether Mr Mirigliani has established that he suffered an injury arising out of, or in the course of, or due to the nature, of his employment with Consolidated Property Services.
74 The medical evidence agrees that Mr Mirigliani suffers from a painful lower back condition that is unlikely to improve. Thus Mr Hooper considered that Mr Mirigliani had evidence of degenerative disc disease and chronic low-back pain.
75 The evidence establishes that he does suffer from a lower back injury, being the degenerative lumbar discs and spondylosis, with some scoliosis and stenosis.
76 However, Mr Mirigliani has to prove that he suffered that injury arising out of, in the course of, or due to the nature of, his employment with Consolidated Property Services. The key question is whether the lower back condition is the result of the progressive degeneration of his low- back discs or, whether the acceleration or aggravation of degeneration of his lumbar discs together with spondylosis were caused, or materially contributed, to by an injury suffered in October 2007, or the work he performed for seven years for Consolidated Property Services.
77 The evidence does not support the contention that a separate injury on 9 October 2007 caused Mr Mirigliani’s low-back injury or aggravated, or accelerated it. He was complaining of his back pain to Dr Kazi, his general practitioner, for some months prior to October 2007. He commenced to suffer significant back pain by about 2005, well before October 2007.
78 However, the evidence establishes on the balance of probabilities that Mr Mirigliani’s current back injury of degenerative lumbar discs and spondylosis was materially contributed to by his work for Consolidated Property between 2000 and 2007.
79 I reach that conclusion for the following reasons.
80 The degenerative disc condition, which was detected in 1996, was mild. By 2000, when Mr Mirigliani commenced work with Consolidated Property Services, his lower back pain had largely diminished.
81 It is particularly significant in considering the history of Mr Mirigliani’s back condition, that in 2000, at the age of fifty-six, he was able to commence heavy and onerous work . His work for Consolidated Property Services was arduous and involved bending and lifting.
82 Mr Mirigliani was able to perform this work without much medical treatment from 2000 to 2005. That suggests that for most of the early years of his work for Consolidated Property Services, his back condition was not as painful or severe as it became in 2006 and 2007.
83 During Mr Mirigliani’s work with Consolidated Property Services, the condition of his lower back and discs deteriorated considerably. By 2007 there was marked degenerative changes at all disc levels and significant lumboscolosis. In 2009 Mr Wilde diagnosed aggravation of lumbar spondylosis. In 1996 there had only been moderate degenerative changes, mild scoliosis some stenosis.
84 Mr Wilde’s opinion is entitled to some weight. It cannot be disregarded because Mr Mirigliani informed him that prior to the injury in 2007, he only experienced the occasional twinge in his back but had not suffered lumbar back pain.[7] Mr Wilde took into account the likelihood of there being “a degree of asymptomatic degenerative disc disease prior to the October 2007 injury”,[8] but, having reviewed the 1996 x-rays and scans, as well as those of 2007 and 2008, considered that in 2007:
“the injury caused further internal disc derangement precipitating
symptoms.”[9]
[7] Report of 20 October 2009 - Plaintiff’s Court Book at page 45
[8] supra at page 49
[9] supra
85 Although I have not accepted that Mr Mirigliani suffered a separate serious injury on 9 October 2007, Mr Wilde’s opinion remains relevant because he recognised a link between his work with Consolidated Property Services and the advance of the degeneration of his discs.
86 Mr Hooper stated that the injury of October 2007 precipitated Mr Mirigliani’s symptoms, but did not cause his underlying pathology. He considered that his work “was not very realistic and this is what precipitated his back condition”. He referred to the multi-level disc degeneration as “constitutional wear and tear”. He considered that Mr Mirigliani would have been in the position he was in due to the presence of the degenerative disc disease regardless of the October 2007 injury. It is unclear what consideration Mr Hooper gave by using the phrase “constitutional wear and tear” to the arduous nature of Mr Mirigliani’s employment on the possible aggravation or acceleration of the degenerative lumbar discs. His opinion does not explain what part Mr Mirigliani’s work played in this “constitutional wear and tear”. It is probable that it played some part.
87 Mr Mirigliani also suffers from carpel tunnel syndrome. However, it was not suggested that that condition was relevant to the determination of this application. That condition, as well as some continuing neck pain, provide one explanation as to why he continued to take Panadeine Forte after 1996.
88 I am persuaded by a consideration of all the evidence, that Mr Mirigliani’s work for Consolidated Property Services materially contributed to his current back condition. For seven years, between 2000 and 2007, he was able to work twelve hours a day performing arduous and repetitive bending and lifting. He gradually developed disabling back pain, which, by October 2007, prevented him from working further. As a matter of common sense, it is probable that the “ constitutional wear and tear on his back”, to use Mr Hooper’s expression, must have been to a significant degree, because of the work that he performed.
89 The impairment is permanent, in that it is likely to last for the foreseeable future. All the medical evidence suggests that Mr Mirigliani will continue to suffer from lower back pain. No corrective surgery is currently suggested, with Mr Wilde stating that “his condition would not benefit from surgical treatment”.
Was the Back Injury a “Serious Injury”?
90 Section134AB(38)(c) of the Act, provides that an impairment or loss of body function is not to be held to be serious unless the consequence, in this case pain and suffering consequence, is:
“… when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
91 Whether or not the injury satisfies this test is largely a matter of impression and value judgment.[10] In Stijepic v One Force Group Aust. Pty Ltd,[11] Ashley JA stated:
“The emphasis in s 134AB (37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. The spectrum is not established simply by fastening upon a case or two in which the applicant has failed.”[12]
[10] Kelso v Tatiara Meat Co. Pty Ltd (2007) 17 VR 592, 629, and Sabo v George Weston Foods [2009] VSCA 242 at 67
[11] [2009] VSCA 181
[12] supra at [42]
92 The assessment is to be made at the time the application is heard by the Court: s.134AB(38)(j).
93 In Haden Engineering Pty Ltd v McKinnon,[13] Maxwell P stated that in respect of pain and suffering consequences cases, the Court must assess the intensity of the pain which the plaintiff experienced by reference to what he said and did about the pain, what the doctors said and what the objective evidence showed about the disabling effect of the pain.[14]
[13] [2010] VSCA 69
[14] supra at [12]
94 In Mr Wilde’s most recent report of 20 October 2009, he recorded the following description of Mr Mirigliani’s position:
“When he attended for re-examination on 20/10/09 his symptoms were 50% of his pain in his low-back and 50% referred pain into both legs (the right worse than the left) with aching in both thighs. The pain extended into his right thigh more so with standing than and to a lesser degree with walking. He rated pain levels at 6 to 7 out of 10 on the visual analogue scale. He did not describe numbness or muscle weakness or aching in his lower limbs. He told me he can cook and prepare meals, drive and shop and walk his dog around the block daily. He cannot garden or vacuum.”[15]
[15] Plaintiff’s Court Book at page 46
95 In my opinion, a consideration of all the evidence leads to the conclusion that within the meaning of s.134AB(38)(c) of the Act, the pain and suffering consequences of the injury to Mr Mirigliani are, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than “significant” or “marked” and as being “at least very considerable”.
96 In reaching my conclusion, I have accepted Mr Mirigliani’s oral evidence. His affidavits in some respects did not give an accurate account of the limitations that his back injury imposed on him. However, in his oral evidence, under cross-examination, Mr Mirigliani made a number of concessions about his capacities and appeared to be attempting to answer questions truthfully.
97 I have taken into account Consolidated Property Service’s contention that Mr Mirigliani’s complaints about the effects of the 1996 and 2007 injuries were very similar. However, in 1996, he was suffering injuries and pain to his neck, shoulder, arm and hand, in addition to his lower back. Those additional injuries were aided by surgery that occurred in 1997. Thereafter, Mr Mirigliani commenced arduous work in 2000. I do not consider that it is appropriate to dismiss his further complaints because they repeat, in part, earlier complaints. The work that he was able to perform between 2000 and 2007 suggests that by 2000, whilst he was suffering from disc degeneration, most of the lower back pain he had experienced in 1996 had lessened.
98 My reasons for concluding that Mr Mirigliani’s injury is a serious injury are as follows.
99 Mr Mirigliani suffers significant and continuing pain. He visits Dr Kazi regularly seeking repeat prescriptions for medication to ease his pain. He takes Panadeine Forte, a prescription drug, and Voltaren.
100 His sleep is affected. He stated that the pain in his lower back limited him to about three hours’ sleep per night and he takes medication to help him sleep. His back is stiff in the morning until his medication takes effect. As stated, in the surveillance vision he appeared on occasion to be walking with a stiff gait.
101 He agreed under cross-examination that he could comfortably carry out a number of everyday duties, including shopping and carrying quite heavy items, as well as some tasks about the house, e.g. sweeping and some cooking. He can walk a reasonable distance, although with some restriction. He is able to spend time in poker machine venues. However, he is restricted in performing tasks as simple as mowing the lawn and lifting his grandchildren.
102 His pain affects everyday tasks, which he must now perform more slowly and carefully. He explained in his oral evidence that his lower back pain makes the simple task of dressing and washing more difficult. When dressing he has to sit down to put on his trousers and socks, and in the shower he has to kneel to wash his lower legs. He has to walk more slowly.
103 As I have stated above, I found the surveillance evidence of only assistance in determining whether Mr Mirigliani has made out his case. It showed him performing day-to-day activities with on occasion, a restricted walking style. It was put that this might be explained by the fact that he is overweight. Even allowing for that possibility, the surveillance evidence does not show anything of substance that contradicts Mr Mirigliani’s oral evidence.
104 Mr Mirigliani’s complaints of back pain are reflected in the information provided to medical practitioners and recorded in the medical reports that are in evidence.
105 I find that Mr Mirigliani does suffer very considerable pain as a result of the injury to his back. This affects his day-to-day life in areas such as sleep disturbance, the need to take care in lifting heavy objects and a general restriction in his movement.
106 Consolidated Property Services’ submission that Mr Mirigliani has decided to retire needs to be assessed in the context of all the evidence. Mr Mirigliani agreed in evidence that he had retired, being now sixty-seven, but that is not surprising. He posed the rhetorical question of who was “going to take me to work?”[16]. As Mr Hooper stated:
“At the age of 66 this man is really incapable of doing anything but the lightest of work now and realistically he will be unable to return to work.”
[16] T 40
Conclusion
107 I grant Mr Mirigliani leave to bring proceedings at common law to recover damages for pain and suffering in respect of an injury arising out of and in the course of his employment with Consolidated Property Services (Aust) Pty Ltd and occurring after 20 October 1999.
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