Morrice v Vannaglen Pty Ltd
[2013] VCC 528
•1 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04058
| LUKE MORRICE | Plaintiff |
| v | |
| VANNAGLEN PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2012 | |
DATE OF JUDGMENT: | 1 May 2013 | |
CASE MAY BE CITED AS: | Morrice v Vannaglen Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 528 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of definition of “serious injury” – low-back injury – extent of aggravation of pre-existing condition – “pain and suffering” damages only.
Legislation Cited: Accident Compensation Act 1985 (as amended)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Petkovski v Galletti [1994] 1 VR 436; Ansett v Taylor [2006] VSCA 171
Judgment: Leave for the plaintiff to commence common law proceedings for “pain and suffering damages” in respect to a low back injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J F Goldberg | Slater & Gordon |
| For the Defendants | Mr T J Ryan | Herbert Geer |
HIS HONOUR:
1 By way of Originating Motion issued on 24 August 2011, Mr Luke Morrice (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings to recover damages for an injury to his low back suffered during the course of his employment with Vannaglen Pty Ltd (“the first defendant”) from about 2002 and in particular on or about 31 October 2002 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.
3 The plaintiff gave evidence and was cross-examined. The parties tendered various documents.[1]
[1]See Annexure A
Relevant Legal Principles
4 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act.
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:
“ … serious injury means—
(a) permanent serious impairment or loss of a body function;
… .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the low back.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” was suffered arising out of or in the course of, or due to the nature of his employment, with the first defendant on or after 20 October 1999;[3]
(b)“the injury”, with its resulting impairment, must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)“the consequences” to the plaintiff of “the injury” in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … [can be] fairly described as being more than significant or marked, and as being at least very considerable”.[5]
The test for “serious” is sometimes referred to as the “narrative test”.
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [11]
[4]See Barwon Spinners (op cit) at [33]
[5]See s134AB(38)(b) and (c) of the Act
8 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]
(b)must make the assessment of “serious injury” at the time the application is heard;[7]
(c)must give reasons which are as extensive and complete as the Court would give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[8]
(d)notes that it has been asserted that the question of whether an “injury” satisfies the narrative test is largely a question of impression and value judgment.[9]
[6]See s134AB(38)(h) of the Act
[7]See s134AB(38)(j) of the Act
[8]See s134AE of the Act; the Justice Legislation Amendment (Miscellaneous) Act 2012 (Act No 68 of 2012) repealed s134AE, with the repeal coming into operation on 1 January 2013.
[9]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The Issues
9 Counsel for the plaintiff informed the Court that the case was put on the basis that the employment of the plaintiff with the first defendant aggravated pre-existing symptomatic lumbosacral disc degeneration resulting in the development of an L5-S1 disc protrusion with consequences that satisfy the narrative test.[10]
[10]Transcript (“T”) 1, L13-17
10 Counsel for the defendants accepts that there may well have been aggravation by employment of pre-existing symptomatic lumbosacral disc degeneration but disputes that such aggravation caused a disc protrusion and, in any event, the consequences of any such aggravation fell far short of satisfying the narrative test.[11]
[11]T4, L4-28
The Evidence of the Plaintiff
11 The plaintiff gave evidence that he had read the contents of his affidavits sworn on 27 April 2011[12] and on 2 October 2012[13] and such contents were “true and correct … to [his] knowledge”.[14]
[12]Exhibit 2, PCB 38
[13]Exhibit 2, PCB 47
[14]T5, L30-31
12 By way of his first affidavit, the plaintiff gave the following pertinent evidence:
· That he suffered “injury” in an incident which occurred throughout the course of his employment with the first defendant and, in particular, on or about 31 October 2007 at an abattoir located in Ascot Vale Road, Ascot Vale.
· He is thirty-one-years-old (being born in Melbourne in 1981). He completed his VCE studies in 1999 and during the time that he was growing up, his father worked at a local bakery and his mother managed a ski lodge at Mt Buller.
· Since completing school he has engaged in the following activities:
§ for about a year he travelled in the United States and also worked at Mt Buller assisting his parents;
§ in or about 2001, he commenced a boilermaker’s apprenticeship which was completed in 2003, after which he continued to work as a boilermaker in Mansfield during 2004;
§ in about 2005, he returned to the United States and worked as a bus and coach driver in Colorado in some of the snow fields and resorts there. During the snow seasons of 2006 and 2007, he also worked as a bus driver in the Mt Buller area. For a few months in 2007, he worked as a service technician servicing portable fire fighting equipment.
· He married in January 2010 and in March 2011, his wife gave birth to twins.
· He commenced employment with the first defendant as a boilermaker in September 2007 earning about $972 gross per week.
· Prior to his commencement of employment with the first defendant, he had suffered the following injuries:
§ in or about 2000, he had suffered a fractured left wrist when playing football;
§ in or about 2004, he suffered glandular fever and also had a tonsillectomy in that year.
· In particular, the plaintiff deposed that he suffered the following back problems prior to his employment with the first defendant:
“10 I had in the past also suffered some brief episodes of back pain. I first recall suffering back pain in 2002 while I was lifting a bucket of steel while doing my apprenticeship. I believe I had about a week off work after that particular event, and a few sessions of physiotherapy, but I did not need to make a Workcover claim. I continued to complete my boilermaker apprenticeship without any issue.
11 I also experienced some back pain while on holiday in Queensland in December 2006, following which I had several sessions of osteopathy. Then, in April 2007 I experienced a brief episode of back pain after digging a trench. I had some acupuncture to treat that particular problem, however I did not require any substantial time off work. Indeed, none of the back problems I experienced prior to the incident of October 2007 affected my capacity to work long-term, and nor did they interfere to any great extent with my enjoyment of life outside of work.”[15]
[15]See Exhibit 2, PCB 40
·Prior to the “incident”, he described himself as “quite fit and healthy and enjoyed playing golf, going snow skiing, snowboarding, trail bike riding and fishing”. He also notes that his work was quite physically demanding, which kept him physically fit, and he also played club football until 2003 when he retired due to work commitments.
·Again, prior to “the incident”, he was independent in regard to all his activities of living and was able to travel extensively and enjoy a busy social and family life.
·He describes the circumstances of the incident on 31 October 2007 in the following terms:
“14 On or about 31 October 2007 I was working for the Defendant at Top Cut Meats, an abattoir in Ascot Vale Road, Ascot Vale. My employer and supervisor, Mr Michael Balcombe, had been contracted by Top Cut Meats to build a mezzanine level above a cool room at the abattoir. I was at the abattoir assisting Mr Balcombe.
15 The construction job at the abattoir involved a large amount of heavy manual lifting of steel beams and channels, and the like, often in a confined space. Mr Balcombe did not supply me with an mechanical lifting equipment to assist with the job and all lifting had to be done manually. We also had to weld a great deal, also in confined spaces. As a result, I suffered back pain during my shift at the abattoir, as well as pain radiating down into my left leg and hip, particularly late in the day.”[16]
[16]See Exhibit 2, PCB 41
·On ceasing work on that day, he went home to rest but continued to suffer pain. On 2 November 2007, he attended at work with the first defendant but because of shooting pain travelling down his left leg, his employer sent him to a local chiropractor. He ceased work around that time.
·He was treated by the chiropractor for several sessions and on or about 7 November 2007 he visited his then treating general practitioner, Dr Tiet, at Northcote. Dr Tiet examined him and certified him unfit for work and prescribed some Tramal, Panadeine Forte, and about a week later he added Mobic to his prescriptions.
·On 14 November 2007, he signed a WorkCover claim and thereafter began to receive weekly payments of compensation.
·He was sent for a CT scan of his lower back which “apparently showed” that he had injured his lower back as a result of the incident and that a disc was pressing on a nerve root in his spine.
·A short time later, his general practitioner added Prednisolone to his tablet medication.
·In November 2007, he was referred to the neurosurgeon, Mr Wallace, who arranged for him to undergo a MRI of his back.
·Mr Wallace recommended that he cease working as a boilermaker and to put himself in bed for a period of eight weeks’ bed rest. The news that he would have to cease working as a boilermaker and stop his trade “came as a great disappointment” to him.
·His condition remained much the same throughout the first half of 2008 during which time he received some treatment from the osteopath, Mr Michael Kelly, of the Northcote Osteopathic Clinic. At that time he was still suffering pain in his low back (worse on the left side compared to the right) as well as pain radiating into his left buttock, hip and knee. He was also receiving some physiotherapy from Mr Mark Summers of Fairfield.
·In the middle of 2008, as a result of moving to Ivanhoe, he began consulting Dr Diana Kwong, a general practitioner, situated at Fairfield.
·Later in 2008 he commenced to work as a cadet building inspector with Reddo Building Surveyors Pty Ltd and hoped to qualify as a building inspector, as such work would be far less physically demanding compared to his work as a boilermaker.
·In September 2010, he left Reddo Building Surveyors Pty Ltd and commenced to work with the City of Melbourne as an assistant building inspector and had also commenced a course of study involving a Diploma in Building Inspection.
·At the time of swearing the first affidavit (27 April 2011), he was earning $51,000 per year, including some overtime.
·He continues to suffers constant pain and stiffness in his lower back, worse on the left side compared to the right side. The pain in his lower back radiates down into his left buttock, thigh and calf. He experiences some episodes of numbness, as well as “pins and needles” in his left foot from time to time.
·The pain that he suffers varies in intensity and he has “good days” and “bad days”, however, there is always some pain present. He believes such pain is “aggravated” by prolonged periods of standing or sitting, walking too far, bending, twisting, lifting, pushing and pulling movements. Furthermore, sudden jerking movements (for example, when he coughs or sneezes) can also “aggravate the situation”. From time to time his back pain will “simply flare-up for no apparent reason”.
·His sleep is also interrupted by pain and for a period of time after the incident he tried sleeping on the floor. After a “bad day” he would be lucky to get more than four or five good hours of sleep a night.
·Because of his ongoing physical problems, as a result of the incident, he believes he has also experienced some psychological difficulties and has “sometimes” become depressed about his situation and the disappointment from his loss of his chosen trade. He also remains somewhat “anxious” about his future prospects.
·He continues to take Panadeine Forte and Panadol as required and continues to attend Dr Kwong and sometimes will seek treatment from the osteopath, Mr Michael Kelly. Furthermore, he has recommenced a Keiser gymnasium program in order to try and strengthen his back.
·As a result of his injury, he is restricted in a range of domestic, social and recreational activities. In particular, he has been unable to get back to playing golf, snow-skiing or snow-boarding. He did attempt to ride a trail bike on one occasion since October 2007 but such activity resulted in an “aggravation” of his back condition.
·He is restricted in the range of the heavier chores around the home and, in particular, caring for his twin children has caused increased symptoms. He has difficulty bending over and lifting them out of cots or car seats and he is concerned as to his ability to care and play with them in future.
13 By way of his second affidavit, the plaintiff gave the following pertinent evidence:
· His symptoms and restrictions “are largely unchanged”.
· He continues to experience ongoing constant pain and stiffness in his lower back and such pain radiates into his left buttock, thigh and calf with numbness in his left little toes. Such pain is worse with activities such as bending, twisting, prolonged sitting, standing and walking.
· Such pain also continues to interfere with his sleep and that he is often awakened by pain and struggles to get a full night’s sleep.
· He remains restricted in the range of tasks and activities that he can perform. In particular, he tries to avoid heavy lifting and continues to have considerable problems with bending or twisting and with activities that require prolonged sitting, standing and walking.
· He continues to suffer from fluctuating depression, he becomes more angry than he was in the past, and is often frustrated by his pain and restrictions. In particular, he is “saddened” by the loss of his chosen career and worries about his future constantly.
· He continues to take medication such as Panadol and Panadeine Forte as required and also uses Deep Heat and heat packs.
· He continues to have osteopathy with Dr Jason Isrealsohn about every six to eight weeks and more often if required.
· Recently, he commenced employment as a building control officer earning approximately $62,000 per annum. He notes that if he had been in his previous profession he believes he would be earning much more as a boilermaker within the mining industry. His present job does not require him to undertake any physical or manual duties.
14 Under cross-examination, the plaintiff gave the following pertinent evidence:
· He identified a CT scan dated 30 April 2007 of his lumbar spine arranged by Dr Ong when he was living in Echuca.[17]
[17]See Exhibit A
· He accepted that it was “more than likely” that he discussed the CT scan, dated 30 April 2007, with a medical practitioner.
· Over the last eighteen months he has lived at McLeod, Lara and Ivanhoe.
· He accepted that prior to the “injury” his doctor was “beseeching … [him] on a regular basis” to improve his lifestyle, lose weight and exercise.
· He accepted that prior to the injury, in October 2007, he was around 130 kilograms in weight, and as at March 2009 he weighed 137 kilograms.
· Over the last year or two he has shed approximately 20 kilograms and has been engaged in gymnasium-type activity to lose weight in part because of a “cardiovascular scare”.
· He accepted that the “injury” occurred on 31 October 2007 and that such injury was reported on 2 November 2007.
· He accepted that if the records showed that he attended a doctor on Thursday 1 November 2007 and only complained about a sore throat, that could be right.
· He had only been with the first defendant for less than two months and, as at 31 October, he was working at a site occupied by Top Cut Meats, an abattoir in Ascot Vale. Furthermore, he had only been on that site for less than a week.
· He accepted on his claim form that he listed his various medical treaters to be the Royal Melbourne Hospital, the Batman Park Medical Centre and Chiropractors Plus.
· He initially attended Chiropractors Plus, as directed by his employer and, in particular, he took the appointment that his boss was going to attend.
· He believes he went to the chiropractor for a week or two which involved “maybe two or three times”.
· When attending the Batman Park Medical Clinic his general practitioner was Dr Kwok Tiet.
· He accepted that when he attended Dr Tiet, on 1 November 2007, the complaint involved a one week history of a sore throat with yellow phlegm.
· He further accepted that it was not until 7 November 2007 did he tell Dr Tiet that he had injured his back a week ago.
· He also accepted that he told Dr Tiet that he had attended the Royal Melbourne Hospital on 5 November 2007 in relation to his back condition.
· He denied that his involvement with the Batman Medical Centre dated back to about 2002.[18]
[18]T23, L7-9
· He believed that he attended a chiropractor somewhere along Bell Street and the Mansfield Medical Centre in relation to back problems around 2002.
· He accepted that he experienced the leg pain when driving to work in November 2007 as reported to Dr Tiet.
· In relation to the actual work performed with the first defendant the following evidence was given:
HIS HONOUR:
Q: “You were asked earlier, and I think your claim form demonstrated that, you started work with your employer where you suffered the injury – I think you’ve told the court roughly two months prior to October 2007 when you suffered injury. Is that right?
A: Two months prior to October? No, I started work with Michael about two or three months prior to the injury.
Q: Two or three months, apologies?
A: That’s all right.
Q: So in general terms we’re looking at, what, June or July 2007?
A: When I started with Vannaglen?
Q: Yes.
A: Yes, I believe it was either August or September.
Q: When you started there, you started work as what?
A: As a boilermaker.
Q: Where the actual incident occurred, the subject incident, you were out on site somewhere at abattoir. Is that right?
A: Yes, Your Honour.
Q: I think in answer to Mr Ryan, you had been on that site for about a week. Is that right?
A: Yes, Your Honour.
Q: Prior to that, did you go out to sites or was there work done as (sic) the place of employment or was it a combination of both?
A: A combination of both, but most of my time was spent in the factory.
Q: Doing what sort of work in particular?
A: Heavy structural boilermaking.
Q: Your normal hours of work were what?
A: 7.00 until 3.30.
Q: Over that two months leading up to October 2007 where you say you were lifting and it ultimately caused you to go off work, did you lose any time off work over that period of time?
A: No, Your Honour.”[19]
[19]T26, L12 – T27, L10.
· He accepted that when he saw Dr Ong, at the Ridge River Clinic near Echuca in early 2007, he gave him a history of digging holes in March or April 2007, and also lifting a toolbox some four months earlier. He also accepted that at the time he consulted Dr Ong he was experiencing pain going into his left buttock and hamstring.
· In seeking to clarify his various medical attendances, the following evidence was given:
HIS HONOUR:
Q: “Mr Morrice, I’m slightly lost, perhaps you can help me. You’ve been taken to the entries by Dr Ong seemingly on 23 April 2007, 1 May 2007 and then something on 29 May – I’m not sure if that’s an attendance or what it is. But at least two times you go there to Dr Ong and Dr Ong, as we know, arranged for the CAT scan, the first CAT scan on 30 April 2007. Are you with me so far?
A: Yes.
Q: We also know, that, from what you’ve told the court, you go to Dr Tiet on 1 November 2007 and that’s about the sore throat. You to the Royal Melbourne Hospital, I think you’ve told us, on 5 November 2007 and back to Dr Tiet on 7 November and you’ve also gone to the chiropractor in that last week or so before you go to Dr Tiet?
A: Yes, Your Honour.
Q: From when you stopped going to Dr Ong in May 2007 and up until you started going to the chiropractor and Dr Tiet, if I can call it late October, early November 2007, had you seen any other doctors in between about your back?
A: I believe only the Chinese medicine, the acupuncture.
Q: Acupuncture, I see. How many times did you see the acupuncturist?
A: I saw him quite a few times over a few weeks, but that was while I was living in Mansfield, just to get comfortable.
Q: That is after the - - -
A: April.
Q: - - - March-April episode. Is that right?
A: Yes, Your Honour.”[20]
[20]T32, L15 – T33, L9
· He accepted that he commenced to see Mr Mark Summers at the Fairfield Physiotherapy from 15 January 2008. He further accepted that he was required to fill out a questionnaire about how his pain was affecting him.
· He accepted that he ticked various boxes of what was referred to as an Oswestry Questionnaire dated 26 January 2008.
· In particular, the plaintiff gave the following evidence:
Q: “Was that an accurate description of how you were feeling at the time?
A: At the time, I was fairly well heavily intoxicated with painkillers and stuff like that. But that aside, I don’t remember feeling as well as this makes me sound like I was.”[21]
[21]T36, L29 – T37, L2
· He accepted that he saw Mr Mark Summers, the physiotherapist, at least four times.
· He accepted that he consulted a Michael Kelly, an osteopath at the Northcote Osteopathy Clinic, on 7 May 2008. He accepted that he completed a patient information form on or about 8 May 2008.
· He accepted that he had given histories to Mr Kelly of various instances where his back had been aggravated, including moving a washing machine at or around 14 October 2008, lifting an esky on 5 February 2009, sleeping on a bad mattress later in 2009, having difficulties driving a new car when the seats were causing difficulties for his back in mid-2010, and on 22 May 2011 he gave a history that lifting “kids” was causing some mid-thoracic tightness.
· When queried about his present treatment, the plaintiff gave the following evidence:
HIS HONOUR:
Q: “Just on that, how often, if, at all, would you take a tablet?
A: Just Panadol if it’s an ache – how often?
Q: I know it’s always hard these things, but is it once a week, once a month, once every few months?
A: Maybe once a month.
Q: What prompts – obviously the pain – but is it usually a precipitating incident or does it come on? How does it occur?
A: It’s pretty random the way it comes on, but generally I’ll only take the stronger medication if I can’t get into the osteopath within the next couple of days because I do get relief.
Q: You are seeing the osteopath how frequently now?
A: Yes, probably eight to 10 weeks, six to 10 weeks, thereabouts. Sometimes more regularly, Your Honour.”[22]
[22]T43, L21-26
· The Keiser treatment ceased about ten months prior to February 2012 when his children were born.
· At the time of hurting his back, when digging holes in February 2007, he was working for the Mid Murray Fire Protection. He was off work for about a week and made no claim for compensation. He returned to work with them after that and continued until his work was completed (about two weeks) and after that he worked for the Mansfield-Mount Buller Bus Lines as a bus driver and continued that work until he commenced employment with the first defendant. There was only a couple of days’ gap between ceasing work as a bus driver and commencing employment with the first defendant.
15 Under re-examination, the plaintiff gave the following pertinent evidence:
· Prior to October 2007, he did not have the flare-ups of back pain that he has experienced since that date.
· Since the incident, he has had a few periods of pain-free time but would not say “totally free”.
· Things like lifting his children out of their high-chairs and their prams or out of the car sets off his back. The pain in his leg is random.
· Prior to October 2007, he had left leg pain which consisted of a “bit of tightness in my hamstring” but after 2007 the pain went from his lower back all the way down to his little toe. Such pain after October 2007 was more severe.
· In answer to the Court, the plaintiff gave the following evidence:
“Q: Your present hours, how many hours do you work a day?
A: I believe it is around the nine-hour mark, about 8.4 or something like that.
Q: Just say in the last 12 months, have you lost any time off work in relation to your back?
A: No, Your Honour.
Q: What I’m just not quite clear about, and I want you to describe to me as best you can, I understand you had the episode in March or April 2007 when you got some treatment prompting the CT scan, by the time October 2007 came around, by the time this incident happened, leading up to that incident, what was your back like?
A: It seemed pretty normal. I had like some dull aches and stuff like that, but no major flare-up or anything.
Q: If you had to describe your back now, how you would describe it?
A: Unpredictable probably. It depends on the day, the type of car I drive, like what I try and do with the kids or other activities that can set it off.
Q: Only answer this if you can, but prior to October 2007, leading up to when this episode occurred, the subject episode, leading up that where you say you had a dull ache and the situation, in your mind are they different, or is it worse now, or is it better now, or what?
A: I think when it actually goes off, it’s a lot worse than what I had to deal with back pre the injury.”[23]
[23]T51, L30 – T52, L22
16 The plaintiff also relies on the affidavit of his wife, Stephanie Morrice, sworn on 2 October 2012.[24] She describes having known the plaintiff since approximately 2006 and then marrying him in 2010 with such marriage producing twin children born in March 2011.
[24]See Exhibit 2 PCB 50-53
17 She describes that prior to the incident on 31 October 2007, she and the plaintiff led a full and active life and that he was able to work in physical manual duties and had done so for many years. She notes that the plaintiff enjoyed his job and took great pride in it.
18 Outside of work she and the plaintiff regularly enjoyed going out together for dinner, movies, dancing, attending markets, walking and bike riding, which they performed together. Furthermore, the plaintiff independently enjoyed such activities as snow-skiing, fishing and motorbike riding. She has observed that since the injury, he has had great difficulty undertaking most of these activities and has simply stopped most of them.
19 She has observed the plaintiff having difficulty with prolonged standing, prolonged sitting and walking for extended distances and appears to have problems with activities that involve bending, twisting, lifting, pushing and pulling movements. She has observed the plaintiff having difficulty with many tasks associated with caring for the children and note that this upsets the plaintiff. Furthermore, she has observed him take medications, such as Panadol and Panadeine Forte, to help control his pain. She has also observed that the plaintiff’s sleeping has been disturbed and initially after his injury he would sleep on the floor in an attempt to relieve his pain and “nowadays” she notices that he rarely enjoys a full night’s sleep.
20 She has also observed the plaintiff becoming depressed and angry and frustrated by his inability to return to his earlier career as a boilermaker.
Radiological studies
21 The plaintiff relies on the following diagnostic investigations:
(a)A CT scan of the lumbar spine undertaken on 30 April 2007 at the request of Dr D Ong.[25] The clinical notes recorded at that time were “Chronic back pain. Referred pain to the left buttock.” The report reads:
[25]Exhibit A
“The L1/L2, L2/L3, L3/L4, and L4/L5 disc levels all appear normal.
At the L5/S1 level a moderate left postero-lateral disc protrusion extends into the left S1 lateral recess and abuts against the exiting left S1 nerve root displacing the nerve root posteriorly. The thecal sac at this level appears unremarkable.
Elsewhere the sacroiliac joints appear normal and the visualised portions of the retroperitoneum also appear normal.
Conclusion:
Moderate L5/S1 left posterolateral disc protrusion abutting against the exiting left S1 nerve root.”
(b)A CT scan of the lumbosacral spine undertaken on 14 November 2007 at the request of Dr Quoc Tiet.[26] The report reads:
[26]Exhibit A, PCB 55
“An examination from the L2–L3 disc to the sacrum was performed.
Comparison is made with an outside examination dated 30/4/2007.
A large left-sided L5‑S1 postero-lateral disc protrusion is displacing the left S1 nerve root posteriorly indicating impingement. The disc protrusion also extends into and fills most of the left L5 exit foramen and is inseparable from the emerging left L5 nerve root. There is no deformity of the thecal sac at this level to indicate an acquired central spinal canal stenosis.
The thecal sac is normal as are the other emerging lumbar and sacral nerve roots.
The facetal joints are normal.
No disc protrusion is noted.
Conclusion – large left-sided L5‑S1 postero-lateral and exit foraminal disc protrusion with impingement on the emerging left L5 and S1 nerve roots. Appearances are thought to have worsened slightly since the earlier examination in April 2007.”
(c)An MRI of the lumbar spine undertaken on 17 December 2007 at the request of the neurosurgeon Mr D Wallace.[27] The report reads:
“Clinical notes – Right sciatica, possible L5/S1 disc prolapse.
Report – The conus is located at T12/L1 and appears normal, as do vertebral body height and marrow signal. No significant para-spinal soft tissue masses. No significant pars defects.
L1/2–L4/5 – No disc herniation at any level. Nerve roots and canal are normal.
L5/S1 – A severe left posterolateral disc protrusion compresses the traversing left S1 nerve. There is a mildly inferiorly extruded fragment. The disc protrusion/extrusion measures approximately 1.7 cms in maximum superior-interior length and approximately 1.6 cms in maximum medial-lateral diameter. The exiting L5 nerve roots appear satisfactory.
Conclusion – Compression of the left S1 nerve root at L5/S1 due to a marked left posterolateral disc protrusion/extrusion as described.”
[27]Exhibit A, PCB 55
Evidence of treating doctors
22 The plaintiff relies on the following reports from treating doctors:
(a)A report from Dr S Neoh, hospital medical officer of the Royal Melbourne Hospital, dated 5 November 2007.[28]
[28]Exhibit 3
Dr Neoh notes that the plaintiff presented at the Royal Melbourne Hospital on 5 November 2007 complaining of low-back pain. At that time he gave a history of low-back pain since March 2007 when he was investigated with a CT scan which revealed a lumbar disc prolapse. In particular, she records the following history:
“He has been well and pain-free since Thursday last week. At this time he was at work lifting heavy items when he again experienced pain in his lower back radiating down the left leg. He reports no numbness, no weakness and no bladder or bowel dysfunction.”
I have interpreted this history to mean that the plaintiff was well and pain-free until Thursday last week, given his reason for attending the hospital and the balance of the history given to the hospital.
Examination at that time revealed stable vital signs, no focal neurological signs, although there was limited straight-leg raising on the left side. He was given oral analgesia, and discharged with regular Panadeine Forte.
(b)Two reports from Dr Quoc Tiet, dated 15 November 2007[29] and 20 September 2010.[30] Furthermore, it is appropriate to refer also to the medical records of the Batman Park Medical Clinic subpoenaed by the defendants.[31] Dr Tiet practised at the Batman Park Medical Clinic.
[29]See Exhibit 3, PCB 56
[30]See Exhibit 3, PCB 57
[31]See Exhibit C
According to the records, the plaintiff attended Dr Tiet on 1 November 2007, giving a history of throat symptoms over the preceding week with no mention of any back problem. In particular, Dr Tiet has recorded that the plaintiff was working “long hours”.
The records next reveal that the plaintiff consulted Dr Tiet on 7 November 2007 complaining of injuring his back one week ago with symptoms in his left leg, and, in particular, it is noted that he was “lifting heavy beams, welding in awkward position, attended Royal Melbourne Hospital … injured back in March”. Examination at that time revealed tenderness on the left-hand side of the lower back, together with limited straight leg raising on the left side and a diagnosis was made of a disc prolapse.
In his report dated 20 September 2010, Dr Tiet states:
“Luke first presented with back pain some 8 years ago in the process of lifting a heavy bracket about 40kg. The pain improved with a few weeks of rest and physiotherapy. He however reported relapse of intermittent pain that lasted a few days at a time. He had a severe relapse in Feb 2007 for the ensuing 8 weeks while digging holes with a shovel. He was seen by a GP at Mansfield Medical Clinic and had a CT in March that year. This was eventually improved with rest and acupuncture.
Luke developed a sciatica pain down the left leg while driving to work in Nov 2007. He attributed this to his work which involved lifting heavy beams and welding in awkward positions. He was seen at RMH and had chiropractor and physiotherapy treatments.”[32]
[32]PCB 57
Furthermore, Dr Tiet arranged for the plaintiff to undergo a CT scan on 14 November 2007.
On 15 November 2007 Dr Tiet referred the plaintiff to the neurosurgeon Mr David Wallace. At that time, the plaintiff was being prescribed Mobic, Panadeine Forte and Prednisolone. Dr Tiet continued to treat the worker for his low back and other conditions until approximately mid-2008 when the plaintiff changed suburbs. A note on 18 January 2008 states:
“Back has improved significantly. No on painkiller. Advised to be careful when returned to work.”
(c)It is also appropriate to refer to the records of the chiropractor, Dr Peter Dynes at “Chiropractic Plus”. Such records were subpoenaed by the defendants.[33] No report was relied on by the plaintiff in the proceeding. The records reveal that the plaintiff attended Chiropractic Plus on 2 November 2007 and thereafter on a few occasions, although the records are not clear as to the precise dates. In a document completed by the plaintiff on 2 November 2007, he identified his “main problem” to be “back and left hamstring”. Furthermore, when questioned as to “when and how did it start?”, he stated, “31/10/07”. Furthermore, he described pain travelling down his left leg and his symptoms are made worse by “bending over”.
[33]See Exhibit C
(d)A report from the neurosurgeon Mr D Wallace dated 6 September 2010.[34] The plaintiff initially consulted Mr Wallace on 26 November 2007 and, in particular, gave the following history:
[34]See Exhibit 3, PCB 69-70
“He stated that was a qualified fitter and turner. He was complaining of a back complaint which began in 2002 when he was lifting a heavy bucket full of metal components, probably weighing in excess of 40 kg. On lifting it he felt something “go” in the region of his left hip. He went off work and attended a physiotherapist. He was seen by his general practitioner and given analgesics for a week. He could not do anything and could barely walk down stairs. When he went back to work he was still in pain. He was prone to dull aches around that area thereafter on a monthly basis that would last a couple of days at a time. He would seek physiotherapy treatment and undergo massage therapy, heath and stretching exercises.
He stated that in February 2007, after digging holes with a shovel, he felt very tired at the end of the day. Over the weekend, he experienced left-sided sciatica with pain radiating down the leg into the hamstrings. He had acupuncture for eight weeks and then returned to his work as a bus driver. After three months, he went back to boiler making and heavy lifting once again. Three weeks before I saw him when driving to work, he experienced a severe pain in his left leg, radiating from the back into the thigh and calf, with tingling of the little toe. His condition had eased by the time I saw him, but he was still in pain in the left calf and had persisting tingling.”[35]
[35]PCB 69
Mr Wallace reviewed the plaintiff on 17 December 2007 on which day he organised a MRI scan to be undertaken. He was again reviewed on 4 January 2008 which was the last consultation. In his report, Mr Wallace states:
“This man suffered a lumbar disc injury, which probably began in 2002 in his lifting accident, as outlined above, aggravated by the incident in February 2007, and culminating in a marked aggravation of his symptomatology in October 2007. When last seen he had recovered from his bout of sciatica due to left S1 nerve root compression, but the injury had left him vulnerable to further attacks, and in view of the size of his disc prolapse, the likelihood of him getting by without further troubles seemed small, and the likelihood of him needing some form of surgical intervention quite high.
When last seen he had undertaken to return to his job as a fitter and turner.
In answer to your specific questions:
1. Ruptured L5/S1 disc.
2. …
3. His injury has predisposed him to the onset of degenerative changes in the L5/S1 level in later life, and has rendered him more prone to further discogenic pain and pain due to compression of the left S1 nerve root.
4. …
5. Ideally, someone with this type of injury would be advised to undertake light duties type employment permanently, but there are many individual who, despite such an injury, continue on in every strenuous physical work and get by, but this injury has rendered him permanently more prone to further attacks of back pain and sciatica, which may have a marked affect on his future work capacity. …”[36]
[36]PCB 70
(e)The reports of Dr Kwong, one undated[37] and the other dated 28 September 2010.[38] I also refer to the records of the Alphington Medical Centre subpoenaed by the defendants. Dr Kwong reports that she initially saw the plaintiff on 1 July 2008 and obtained a history of the plaintiff initially hurting his lower back in February 2007 whilst digging a hole at work in Echuca and later in October 2007 aggravated his back as a result of moving beams in the roof as part of being a boiler maker.
[37]See Exhibit 3, PCB 71
[38]See Exhibit 3, PCB 72-73
At the time of his initial examination, the plaintiff presented with “minimal symptoms of the back pain” and rated the severity of symptoms as “1 out of 10” unless her performed a movement to his back that aggravated the pain such as bending. Dr Kwong noted that he continue on a chronic course of dull back pain with acute worsening of the pain after certain movements or activities as expected with a lumbar disc bulge.
WorkCover certificates were given, placing restrictions on the type of work he could perform and treatment prescribed for his back included losing weight, attending Keiser training and seeing a physiotherapist/osteopath. She considered that the plaintiff did not require any oral medication for his symptoms. In particular, Dr Kwong stated:
“Mr Morrice’s condition will be best managed with avoidance of heavy lifting so restrictions for future work capacity include many labour-intensive jobs.
I did not know Mr Morrice prior this injury but I consider that having a disc prolapse and chronic lower back pain would restrict him from exercising a wide range of activities be they leisure, social or domestic. He would be advised not to perform any prolonged or sustained activities that aggravate his back.”[39]
[39]PCB 73
A perusal of Dr Kwong’s records would suggest that there were periods of a few symptoms but again exacerbating episodes brought about by certain activities.
(f)A report from the osteopath Dr Kelly, dated 19 November 2010.[40] I also refer to the notes from the Northcote Osteopathic Clinic subpoenaed by the defendants.[41]
The plaintiff initially consulted with Dr Kelly in relation to his lower back on 8 May 2008. The plaintiff reported that his current pain had commenced subsequent to an incident on 31 October 2007 where he had been working in a confined area in a roofed space with a heavy steal beam. The plaintiff also gave a history of pre-existing back problems extending back to 2001/2002 when he was an apprentice.
When initially seen, the plaintiff described his pain as “a little niggle” but his pain would increase when standing too long or bending. Dr Kelly was of the opinion that on the history that he obtained, and his understanding of the various CT scans, the “incident” in October 2007 was “most likely the single provocative factor which contributed” to an L5-S1 disc protrusion.
Seemingly, not only has he received treatment for his back from the osteopath but for other conditions also.
In his report Dr Kelly states, in part:
“Question 5
[40]See Exhibit 3, PCB 80-83
[41]See Exhibit C
What restrictions do you consider that Mr Morrice’s injuries are likely to place on his future work capacity?
Mr Morrice first injured his back when he was working as a boiler maker. He has since changed careers and now has a sedentary job. His work as a building surveyor is largely office based job although it does require some car travel and some time on building sites. Given his current lifestyle and occupation, and if he continues to work in this field, I believe his back condition should not place any restrictions on his future work capacity.
Question 6:
What restrictions do you consider Mr. Morrice’s injuries have had on his ability to undertake his pre injury leisure, social and domestic activities?
I believe Mr. Morrice’s back injury has caused him to change his pre injury leisure, social and domestic activities. He has formally been an active and avid skier, both in Australia and overseas, but because of his back condition I believe his fitness and confidence in pursuing physical activity have both been affected. Mr Morrice’s back condition has improved to the point where I can see no reason why his recreational pursuits should be hampered by his current level of function.”[42]
[42]Exhibit 3, PCB 83
(g)The report from physiotherapist, Mr Percy, dated 19 March 2012.[43] Mr Percy notes that the plaintiff commenced Kieser treatment on 6 March 1999 and such treatment continued until 6 October 2011.
[43]Exhibit 3, PCB 84-87
(h)I also refer to the notes from Fairfield Physiotherapy subpoenaed by the defendants.[44] The plaintiff received treatment from Mr Mark Summers at the Fairfield Physiotherapy Clinic. The records reveal that the plaintiff commenced physiotherapy treatment on 15 January 2008. In particular, the records contain a document referred to as a “revised Oswestry” seemingly dated 26 January 2008 which is a questionnaire said to be “designed to give information as to how your back pain has affected your ability to manage everyday life”.
[44]See Exhibit C
In particular, the plaintiff ticked boxes consistent with the following answers:
“The pain comes and goes and is very mild.”
“I can look after myself normally without causing extra pain.”
“I can lift heavy weights, but it gives extra pain.”
“Pain does not prevent me walking any distance.”
“I can sit in any chair as long as I like.”
“I can stand as long as I want but it gives me extra pain.”
“Pain does not prevent me from sleeping well.”
“Pain has no significant effect on my social life, apart from limiting more energetic interest, e.g. such as dancing.”
“I can travel anywhere without extra pain.”
“My pain is rapidly getting better.”[45]
[45]T35-36
23 I also refer to the medical records of the Rich River Medical Clinic subpoenaed by the defendants.[46] Such records reveal that the plaintiff attended a Dr Y Y Ong on 23 April 2007 complaining that he had hurt back lifting a toolbox “last Christmas” and was complaining of chronic back pain. Such back pain referred to his left buttock and hamstring area. After an examination Dr Ong arranged for the plaintiff to undergo a CT scan.
[46]See Exhibit C
24 When again seen on 1 May 2007, a diagnosis was made of a L5-S1 lateral prolapse with S1 nerve root impingement. According to the records, there was a “chat” re conservative treatment against surgical intervention. It is noted that he will “think about his options”.
25 The records suggest no further attendances at that clinic.
Medico-legal reports relied on by the plaintiff
26 The plaintiff relies on the following medico-legal reports:
(a)A report of the orthopaedic surgeon Mr Paul Kierce, who examined the plaintiff on 18 November 2009 on behalf of the insurer of the first defendant.[47]
(b)Medical reports of the neurosurgeon Mr David Brownbill, who examined the plaintiff on 9 August 2010[48] and on 14 August 2012.[49]
(c)A report of the orthopaedic surgeon, Mr M Shannon, who examined the plaintiff on 16 July 2012 at the request of the solicitors for the defendants.[50]
[47]See Exhibit 3, PCB 58-68
[48]See Exhibit 3, report dated 24 August 2010, PCB 74-79
[49]See Exhibit, report dated 16 August 2012, PCB 88-91
[50]See Exhibit 3, report dated 19 July 2012, PCB 92-96
27 Mr Kierce obtained a history of earlier back problems and also an incident of 31 October 2007 when he hurt his back “lifting heavy steel beams with colleagues”. On examination, he found the plaintiff to be a “friendly, genuine, well presented young who is significantly overweight”.
28 Mr Kierce, after obtaining a history and making an examination considered that the incident on 31 October 2007 was an “aggravation of pre-existing degeneration at the lumbosacral disc”. In particular, he was of the opinion that the plaintiff had suffered a massive lumbosacral disc prolapse in the course of his work as a boilermaker working for the first defendant. It is to be noted that although Mr Kierce obtained a history of an earlier CT scan before the incident in question, he only had available the imaging of the CT scan on 14 November 2007 and the subsequent MRI examination on 17 December 2007. Mr Kierce summarised his opinion as follows:
“This young man suffered a massive lumbosacral disc prolapse in the course of his work from which he is gradually recovering. He will never be fit for his pre-injury employment. He is employed in suitable employment currently.”[51]
[51]PCB 59
29 When initially examined by Mr Brownbill on 9 August 2010, he obtained a history of the plaintiff initially suffering low back pain in 2002 and thereafter experiencing some left-sided back “niggling”. In particular, he also obtained a history that in early 2007 the plaintiff had suffered low back pain performing his usual work activities and underwent CT scanning, after which he was off work for a couple of weeks making “an essentially full recovery but with some “niggling””.[52] Mr Brownbill also obtained the history on 31 October 2007 that the plaintiff was in a roof space putting in a mezzanine floor with awkward twisting, stretching and some heavy lifting. After he noticed an increase in lower back stiffness and on one particular morning he woke with pain radiating down the back of the left leg. Subsequently a CT scan was performed and a referral to a neurosurgeon (Mr Wallace).
[52]See Exhibit 3, PCB 74
30 After obtaining the history and making an examination and having access to the radiological material, Mr Brownbill stated his opinion to be:
“1 On the information provided, I consider that as a result of his employment on or about 31st October 2007, this man suffered aggravation of pre existing lumbo sacral intervertebral disc derangement with resulting increase in disc prolapse and nerve root compression giving rise to left leg pain, but without objective signs of radiculopathy.
2 As a consequence of that physical injury and impairment of his back function (excluding any psychological or psychiatric condition) I consider that he is likely to be restricted in the future with respect to activities involving lifting, bending, twisting or stooping, or prolonged sitting, standing or walking, in a marked degree for the foreseeable future.
3 As a consequence of the physical injury of lumbo sacral intervertebral disc derangement and aggravation with disc prolapse and impairment of his back function (excluding any psychological or psychiatric condition) I consider that he will be precluded from performing his pre injury duties for the foreseeable future.
4 As a consequence of the physical injury of aggravation of lumbo sacral spine degenerative changes with intervertebral disc prolapse and impairment of his back function (excluding any psychological or psychiatric condition) I consider this man will be restricted in relation to his social, domestic and/or recreational activities for the foreseeable future to a moderate to marked degree.
… . ”[53]
[53]See Exhibit 3, PCB 77
31 When later examined by Mr Brownbill on 14 August 2012, he recorded the history that the plaintiff was then working as a full-time building inspector without lifting or physical activity. Furthermore, the plaintiff gave a history that by diet and exercise he had lost 20 kilograms in weight. At that time he was attending an osteopath every six to eight weeks but had no other physical therapy. He was taking an occasional Panadol and Nexium but no other medication.
32 In particular, he gave a history that there is some low back soreness most of the time which fluctuates in severity being more pronounced in the mornings and worst after physical activity. Mr Brownbill described the plaintiff as “alert and cooperative without embellishment appearing straightforward in his presentation”.
33 Examination on that date revealed the plaintiff to have essentially a full range of thoracolumbar spinal movements with no objective neurological abnormality of the lower limbs, with no signs of radiculopathy.
34 Mr Brownbill confirmed his opinion as previously stated and, again, opined that the plaintiff should avoid activities involving heavy lifting, force, spinal mobility, repeated bending or prolonged standing or sitting.
35 When examined by Mr Shannon 16 July 2012 a history was obtained that he had had “occasional backache in the past and has had visits to osteopaths and physiotherapists for a few session, but in the past his symptoms have resolved”.[54]
[54]PCB 94
36 After making an examination and having access to the CT scan performed on 14 November 2007, and the MRI scan performed on 17 December 2007, Mr Shannon stated:
“Mr Morrice has sustained aggravation of pre-existing and previously symptomatic lumbosacral disc degeneration in the course of his employment resulting in a large left sided lumbosacral disc prolapse with radiculopathy.
Although he describes only relatively modest symptoms in his back previously, there was apparently a significant lifting event in 2002 during this apprenticeship which is referred to by Mr Wallace and indeed in his Statement of Claim.
Nevertheless, he was able to continue performing moderate physical work for a number of years before sustaining this disc prolapse which although it was not associated with any specific incident, appears to be fairly clearly work related.
The description of his symptoms is consistent with radiculopathy and although there have been various interpretations of his ankle reflexes, I thought that his left ankle reflex was absent and the right was just present.
In any event, this is academic in the sens that his disc prolapse has no substantially resolved and he no longer has significant sciatic symptoms.
Nevertheless, the injury has resulted in permanent aggravation and acceleration of degenerative change and I think that his decision to change occupations to a less physically demanding one is entirely appropriate and relates to his work related injury.
He is coping with is present occupation and had quite modest demands for treatment using only intermittent medication and requiring occasional osteopathic treatment.”[55] (My emphasis.)
[55]See Exhibit 3, PCB 95
37 Mr Shannon also opines that the plaintiff “was apparently quite active in sport prior to the back injury” and “he would be limited in more strenuous sporting activities now and in the future”.[56]
[56]See Exhibit 3, PCB 96
The medico-legal reports relied on by the Defendants
38 The defendants rely on the following reports:
(a)Reports from the neurosurgeon Mr D Nye, who examined the plaintiff on 18 March 2008[57]; on 6 October 2009[58]; and, lastly, on 21 June 2011.[59]
(b)Report of the orthopaedic surgeon Mr G Moran, who examined the plaintiff on 7 August 2009[60].
[57]See report of same date, Exhibit D, DCB 1-5
[58]See report of same date, Exhibit D, 6-12
[59]See report dated 22 June 2011, Exhibit D, DCB 13-18
[60]See report dated 11 August 2009, Exhibit D, DCB 19-22
39 When first examined by Mr Nye, the plaintiff gave a history that he initially experienced back pain during his apprenticeship in “possibly ... 2002”, after which he suffered minor symptoms in April 2007 which required investigation by a CT scan. He also gave the history that on 31 October 2007, he, with others, was fitting a mezzanine floor above a cool room, and this involved lifting and moving beams, purlins, and heavy welding tools. During the course of such work he experienced back stiffness, and on the following day, when driving to work, he experienced severe left leg pain consistent with sciatica.
40 After obtaining such history, making an examination, and having access to the CT scan dated 30 April 2007, the CT scan dated 14 November 2007, and the MRI scan obtained on 7 December 2007, Mr Nye stated:
“Following my examination of the above and assessment of the available radiological material I concluded the subject has had degeneration of the lumbo-sacral disc, evident on CT scan undergone in April 2007 with modest disc protrusion and in October 2007 and as a consequence of described work activity aggravation resulted in precipitation of a very large disc prolapse, and the condition has somewhat remarkably responded to conservative treatment, particularly in respect to reduction of pain levels and sciatica.”[61]
[61]Exhibit D, DCB 3-4
41 Mr Nye considered the plaintiff was incapable of returning to work as a boilermaker as a result of his low back condition.
42 When Mr Nye examined the plaintiff on 6 October 2009, the plaintiff demonstrated a full range of thoracolumbar movement, and there was no spasm of paravertebral musculature in the lumbar region. Mr Nye found no symptoms representing functional overlay, exaggeration or psychological factors.
43 Although the plaintiff had minor symptoms, Mr Nye considered that he was incapable of resuming work as a boilermaker, and any work would include an absence of a need for repeated bending or twisting movements of the spine or lifting beyond 10 kilograms.
44 When last examined on 21 June 2011 Mr Nye again found good back movement with no spasm of paravertebral musculature in the lumbar region. Mr Nye again confirmed that the plaintiff was incapable of resuming work as a boilermaker and that he should be subject to various restrictions on his physical activities. He considered injury had a “modest effect” with respect to the plaintiff’s enjoyment of life and capacity for daily activities.
45 Mr Moran examined the plaintiff essentially for the purposes of making an assessment under the AMA Guidelines. After examination, and viewing the CT scan dated 14 November 2007 and the MRI scan dated 17 December 2007, he made the diagnosis that the injuries suffered by the plaintiff on 31 October 2007 caused an aggravation of an L5-S1 disc prolapse.
Analysis of the evidence
46 Before analysing the evidence, it is perhaps apposite to comment on the credibility of the plaintiff. I have formed the view, after listening to the evidence of the plaintiff, that at all times he attempted to give honest and accurate answers to the questions posed to him. On occasion, he could not precisely recall attendances on various doctors, but I considered such evidence more a reflection of the effluxion of time rather than any attempt to mislead the court. Consistent with such view, I note that Mr Kierce found the plaintiff to be “genuine” when he examined him; Mr Brownbill found him to be cooperative without embellishment when he examined him on both occasions; and Mr Nye found no evidence of functional overlay, exaggeration or psychological factors. Furthermore, counsel for the defendants accepted, appropriately in my view, that there had been no attack on the credit of the plaintiff.
47 After a consideration of all the evidence, I am satisfied that the plaintiff suffered a back injury arising out of or in the course of his employment with the first defendant on or about 31 October 2007. Counsel for the defendants, as I would understand his submissions, did not dispute that some type of “aggravation” or “exacerbation” of the plaintiff’s previously symptomatic back condition occurred on that day, but such “injury” should be seen in the context of:
(a)That given that complaint was only made about the injury at a later date, such injury was only relatively “minor”; and
(b)In any event, such “injury” should only be seen as yet another short-lived exacerbation of the plaintiff’s ongoing low back problems rather than an aggravation of a pre-existing condition which satisfied the requirements as set out in Petkovski v Galletti.[62]
For reasons which I will advance, I reject such submissions.
[62][1994] 1 VR 436
48 In particular, counsel for the defendants highlights the following:
(a)The plaintiff attended his then treating general practitioner, Dr Tiet, on 1 November 2007 (seemingly the day after the “injury”) and made no complaint of low-back pain, but rather made complaints in relation to a throat problem. The plaintiff made no complaint to Dr Tiet of any low back problem until 7 November 2007, although at that time did give a history of having such pain for about a week.
(b)That he did not attend the Royal Melbourne Hospital until 5 November 2007, some six days after the alleged “injury”.
(c)Although he seemingly attended the chiropractor, Mr Peter Dynes, on 2 November 2007, it is unclear what history and/or treatment he received from such chiropractor. Other than the clinical notes, there was no report from Dr Dynes.
49 A perusal of such material reinforces the view that the plaintiff did suffer some type of “injury” on 31 October 2007. Any delay in seeking treatment or reporting such injury is probably best explained by what the plaintiff stated in his claim form.[63] When queried as to why there was a delay in reporting his injury, the plaintiff stated:
“Because I thought it might go away, but it was getting worse.”
It is to be noted that the claim for compensation in respect for injury on 31 October 2007 was accepted by the agent of the first defendant, as was a subsequent claim for impairment benefits.[64]
[63]Exhibit 1, PCB 6
[64]See Ansett v Taylor [2006] VSCA 171
50 The overwhelming consensus of medical opinion is that the nature of the injury suffered by the plaintiff on 31 October 2007 was an “aggravation” of a pre-existing symptomatic degenerative condition at the L5‑S1 disc level of the lumbar spine. There is no dispute that the plaintiff commenced to have back problems from about 2001 or 2002 when working as an apprentice.
51 Both parties accepted that it was appropriate to apply the principles in Petkovski v Galletti[65] to ascertain whether or not the plaintiff had suffered a “serious injury” within the meaning of s134AB of the Act. Although Petkovski v Galletti was determined in the context of s93 of the Transport Accident Act, the principles have been long accepted to apply to industrial accidents determined under the Act.[66]
[65]op cit
[66]See Guppy v Victorian WorkCover Authority [2010] VSCA 164 at paragraph [19]; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
52 In the context of aggravation to a pre-existing injury, Southwell and Teague JJ made it plain that the task of the court is to analyse the extent of the impairment of the body function before and after the relevant injury. In referring to the submissions that had been rejected by the trial judge, Southwell and Teague JJ stated:
“The question of the relevance of the existence of a pre existing degenerative condition in the applicant’s spine was raised both in the court below and in this court. It was submitted in both courts for the respondent that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.
The learned County Court judge rejected this principal submission of the respondent. … He said: ‘In my opinion, the Act simply requires me as an assessing judge to be ‘affirmatively satisfied’ that the applicant as at the date of the application is suffering from a ‘serious injury’ within the meaning of the Act.’
... it is clear that the submission for the respondent ought not to have been rejected by the judge; in this court, counsel for the applicant conceded as much. We are of that opinion for these reasons. One should commence with the acknowledgment that it has for long been the law that an injured person is to be compensated for, but only for, such disabilities as are proved to have resulted from the relevant accident. While the wrongdoer must take the victim as he finds him, he must compensate only for the damage he has wrought.”[67]
[67]See Petkovski v Galletti (op cit) at page 443
53 After consideration of all the evidence, I make the following findings:
(a)That the plaintiff initially suffered a low-back injury in or about 2001 or 2002 when he was lifting a bucket of steel during the course of his apprenticeship. He had about a week off work, and underwent a few sessions of physiotherapy. After he returned to work he completed his boilermaker apprenticeship.
(b)The plaintiff experienced more back pain when on a holiday in Queensland in December 2006, after which he had several sessions of osteopathy.
(c)In March or April 2007 he suffered further bouts of low-back pain as a result of digging holes and also lifting a toolbox some four months earlier. He attended Dr Ong on 23 April 2007 and on 1 May 2007 following a CT scan being performed on 30 April 2007. The CT scan revealed a “moderate L5‑S1 left-postero disc protrusion abutting against the exiting left S1 nerve root.”
(d)That on ceasing to attend Dr Ong on 1 May 2007 he had treatment from an acupuncturist for a few weeks “just to get comfortable”. Furthermore, at the time of the symptoms in March or April 2007 he was experiencing pain going to his left buttock and hamstring.
(e)When digging holes in early February 2007 he was working for the Mid Murray Fire Protection and was off work for about a week, after which he returned to similar employment for about two weeks. After that work, he worked for the Mansfield-Mt Buller bus line as a bus driver, and continued that work until he commenced employment with the first defendant. There was only a couple of days gap between ceasing work as a bus driver and commencing employment with the first defendant. The employer injury claim report suggests that the plaintiff commenced employment with the first defendant on 6 September 2007.
(f)When employed by the first defendant up until 31 October 2007 the plaintiff was performing boiler-making work without any restriction on his activities. Furthermore, I find that leading up to 31 October 2007 the plaintiff pursued a full and active life, and in particular was engaged in such sports as golf, snow skiing, snowboarding and trail bike riding.
(g)After the March or April 2007 episode, I find that the plaintiff had some dull aches in his low back but no major flare-ups or major interference with his capacity to work or enjoy his recreational activities.
54 I consider that the “injury” suffered by the plaintiff on 31 October 2007 caused a permanent deterioration in his lumbar spine. In particular, I refer to the following:
(a)The radiologist who performed the CT scan on 14 November 2007 compared such scan to the one undertaken on 30 April 2007 and came to the view that appearances seemed to have “worsened slightly” since the examination in April 2007.
(b)Following the injury on 31 October 2007, the plaintiff has been forced to give up his chosen profession of boiler-making and has been required to obtain alternative lighter employment as a building control officer to avoid employment which involves bending, lifting and stressing the back.
(c)I accept that, consistent with the most recent examinations of Mr Brownbill, Mr Nye and Mr Shannon, the plaintiff has a good range of lumbosacral movement and seemingly only has mild symptoms when the back is not stressed. Indeed, such a presentation is consistent with when the plaintiff completed the questionnaire on 26 January 2008. However, I accept the evidence of the plaintiff when he asserts that since October 2007 he has had unpredictable flare-ups of back pain which was not the case prior to that date. Furthermore, flare-ups of such back pain are more severe in intensity and when he experiences the left leg pain it extends throughout the leg to his toes, whereas before October 2007 pain was limited to the buttock and hamstring area. On several occasions, the plaintiff stressed that his back was unpredictable and although he tended to avoid situations where his back was stressed, he may experience a flare-up for no apparent reason.
(d)Consistent with him not stressing his back, to avoid giving rise to an increase in symptoms, I also accept that the plaintiff has largely given away any active sporting and recreational activities which he performed prior to October 2007.
(e)I accept that when he does not stress his back, he requires little medication for his symptoms and intermittent treatment from an osteopath.
55 After consideration of all the evidence, I am satisfied after making a comparison of the back condition of the plaintiff before the injury on 31 October 2007 with his condition thereafter, that the extent of additional impairment with resultant consequences satisfy the narrative test. In particular, the additional consequences resulting from the added impairment brought about by the injury on 31 October 2007 include:
(a)the need for the plaintiff to reluctantly leave his chosen profession of boiler-making and perform lighter where his back was not stressed;
(b)the increase in the frequency and intensity of flare-ups in his low back and the extent of the left leg pain which now extends throughout the left leg down to the toes;
(c)the need for the plaintiff to cease performing physically active recreations which cause flare-ups of his low back pain. On a day-to-day basis, although he tends to avoid stressing his back, such activities as being involved with his twin babies give rise to difficulties with his back.
56 In this sense, such “losses” particularly in a relatively young man are consequences which may be fairly described as being more than significant or marked and as being at least very considerable.
57 In particular, I adopt the medical opinions of Mr Brownbill, in particular, and those of Mr Shannon, who have both recently examined the plaintiff.
Conclusion
58 Accordingly, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in relation to his back injury suffered during the course of his employment with the first defendant on or about 31 October 2007.
59 I will hear the parties on the issue of costs.
Annexure “A”
1 The plaintiff tendered the following documents:
Exhibit 1
· Worker’s Claim Form dated 14 November 2007.
· Employer Claim Report dated 22 November 2007.
· Worker’s Claim for Impairment Benefits dated 17 June 2009.
· Notice of Entitlement from QBE dated 12 August 2010.
All such documents are contained at pages 6-21 of the Plaintiff’s Court Book (“PCB”).
Exhibit 2
·Affidavits of the plaintiff sworn 27 April 2011 and 2 October 2012.
·Affidavit of Stephanie Morrice sworn 2 April 2012.
All such documents are contained at pages 38-53 of the PCB.
Exhibit 3
·Medical reports of the general practitioner, Dr Tiet, dated 15 November 2007 and 20 September 2010.
·Medical report of the orthopaedic surgeon, Mr Paul Kierce, dated 18 November 2009.
·Medical report of the neurosurgeon, Mr D Wallace, dated 6 September 2010.
·Medical reports of the general practitioner, Dr Kwong, one being undated and one dated 28 September 2010.
·Medical reports of the neurosurgeon, Mr David Brownbill, dated 24 August 2010 and 16 August 2012.
·Medical report of Dr Kelly dated 19 November 2010.
·Report of Mr Percy dated 19 March 2012.
·Report of the orthopaedic surgeon, Mr M Shannon, dated 19 July 2012.
·Medical report of Dr Sandra Neoh, being the hospital Medical Officer at The Royal Melbourne Hospital, dated 5 November 2007.
All such documents are contained at pages 56-96 PCB.
2 The first defendant tendered the following material:
Exhibit A
· CT scan of the lumbar spine dated 30 April 2007.
· Further CT scan of the lumbar spine dated 14 November 2007.
· MRI scan of the lumbar spine dated 17 December 2007.
The last two reports are contained at pages 54-55 PCB.
Exhibit B
· Report from Northcote Osteopathic Clinic of Dr M Kelly dated 11 May 2012.
Exhibit C
· Folder containing various medical treatments of the plaintiff.
Exhibit D
· Reports of the neurosurgeon, Mr D Nye, dated 18 March 2008, 16 October 2009 and 22 June 2011.
· Report of the orthopaedic surgeon, Mr G Moran, dated 11 August 2009.
All such documents are found at pages 1-22 of the Defendants’ Court Book (“DCB”).
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