Morris v Fairview Homes for the Aged Inc
[2021] VCC 486
•4 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-06266
| GRAEME GEORGE MORRIS | Plaintiff |
| v | |
| FAIRVIEW HOMES FOR THE AGED INC | Defendant |
---
JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 18 September 2020 (via Zoom) | |
DATE OF JUDGMENT: | 4 May 2021 | |
CASE MAY BE CITED AS: | Morris v Fairview Homes for the Aged Inc | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 486 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – progressive aggravation of degenerative pathology during course of employment – pain and suffering – plaintiff suffering from multiple non-compensable medical conditions – whether plaintiff sufficiently disentangled the consequences of the impairment or loss from other medical conditions – causation – whether injury arose in the course of employment or from personal activities – range – whether pain and suffering consequences satisfy the test of “serious injury” as defined in s134AB(37)(a) of the Act
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Humphries & Anor v Poljak [1992] 2 VR 129; Barlow v Hollis [2000] VSCA 26;TTB SMS Pty Ltd v Reading [2020] VSCA 203; Richards v Wylie (2000) 1 VR 79; Hunter v Transport Accident Commission [2005] VSCA 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd vMcKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249; St Mary’s School v Askwith [2011] VSCA 90; Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179; Barwon Spinners Pty Ltd & Ors v Podolak 14 VR 622; O’Neill v TD Williamson Aust Pty Ltd [2008] VSC 398; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Swannell Anor v Farmer [1999] 1 VR 299; Cropp v Transport Accident Commission [1998] 3 VR 357; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Zlateska v Consolidated Cleaning Services and Anor [2006] VSCA 141; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: The plaintiff is granted leave to bring common law proceedings to recover pain and suffering damages in respect of injury to his lumbar spine suffered by him during the course of his employment with the defendant.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F A L Ryan | Adviceline Injury Lawyers |
| For the Defendant | Mr N J Dunstan | Wisewould Mahony |
Table of Contents
Background
The application
The hearing
The claimed serious injury
The issues
Summary of findings
Statutory framework and applicable principles
The Plaintiff’s evidence
First affidavit, sworn 8 August 2019
Second affidavit, sworn 22 February 2020
Cross-examination
Re-examination
The Plaintiff’s treating healthcare professionals
Dr Sahhar, general practitioner
Dr Sahhar’s first report, dated 3 June 2015
Dr Sahhar’s second report, dated 31 March 2016
Dr Sahhar’s third report, dated 12 October 2018
Dr Sahhar’s fourth report, dated 22 July 2020
Mr Scott Lindsay, physiotherapist, report dated 17 November 2015
Dr Heather M McColl, chiropractor, report dated 11 November 2015
The Plaintiff’s medico-legal reports
Associate Professor Love, orthopaedic surgeon
Associate Professor Love’s first report, dated 24 October 2018
Associate Professor Love’s second report, dated 28 July 2020
Mr Graham Doig, orthopaedic surgeon, report dated 18 June 2019
The Defendant’s medico-legal reports
Mr Peter Grossberg, general surgeon, report dated 13 July 2015
Mr Rodney Simm, orthopaedic surgeon
Mr Simm’s first report, dated 5 February 2019
Mr Simm’s second report, dated 27 November 2019
Mr Simm’s third report, dated 17 July 2020
The Plaintiff’s credibility
(1) Was the Plaintiff’s injury caused in the course of his employment due to the nature of his work with the Defendant?
The Defendant’s submissions
The Plaintiff’s submissions
Analysis
Conclusion
(2) Have the consequences of the Plaintiff’s compensable injury been disentangled sufficiently from his various non-compensable medical conditions?
The Defendant’s submissions
The Plaintiff’s submissions
Analysis
Conclusion
(3) Do the pain and suffering consequences of the compensable injury satisfy the definition of “serious injury”?
The Defendant’s submissions
The Plaintiff’s submissions
Analysis
Conclusion
Final conclusions and proposed orders
HER HONOUR:
Background
1The plaintiff, Graeme Morris, worked as a maintenance officer for the defendant, Fairview Homes for the Aged Inc, commencing in 2004 as a contractor when aged fifty-five years, and from 2009 until 2013 as an employee. During the course of his employment, the plaintiff’s duties were physically demanding.
2The plaintiff is burdened with numerous medical conditions, some predating his employment with the defendant and some diagnosed whilst working for the defendant. Most of these conditions are unrelated to the plaintiff’s work. Significantly, at the time of his employment, the plaintiff had an underlying degenerative condition in his lumbar spine. Although there was no particular occasion that the plaintiff can identify as causing specific injury to his lumbar spine, in view of the nature of his work and the inherent physical demands thereof, the plaintiff claims that he has sustained “serious injury”, namely aggravation of degenerative pathology in the lumbar spine.
The application
3By Originating Motion dated 20 December 2019, the plaintiff now seeks leave under s134AB of the Accident Compensation Act1985 (Vic) (“the Act”) to bring common law proceedings to recover pain and suffering damages in respect of injury to his lumbar spine suffered by him during the course of his employment with the defendant.
The hearing
4The hearing was conducted before me via “Zoom” because of COVID-19 restrictions.
5Ms F A L Ryan appeared on behalf of the plaintiff. Mr N J Dunstan appeared on behalf of the defendant.
6Only one witness was called to give viva voce evidence, namely the plaintiff. Otherwise the parties each tendered documentary evidence.
The claimed serious injury
7The plaintiff alleges aggravation of degenerative pathology in the lumbar spine and relies on subparagraph (a) of the definition of “serious injury” as defined in s134AB(37) of the Act.
The issues
8The issues that arise for determination as defined by the defendant are:
(i) Whether the plaintiff’s employment with the defendant caused a compensable injury to his lumbar spine;
(ii) Whether the consequences of the plaintiff’s various current medical conditions and symptoms have been sufficiently “disentangled” to enable the Court to identify the consequences of the claimed compensable injury; and
(iii) If the plaintiff has suffered a compensable injury and the consequences of it have been disentangled, whether it satisfies the definition of “serious injury.”
Summary of findings
9For the reasons that follow I find:
(i) The plaintiff has satisfied the Court on the balance of probabilities that his work with the defendant caused a compensable injury to the lumbar spine;
(ii) The plaintiff has satisfied the Court on the balance of probabilities that he has disentangled the consequences of the compensable injury; and
(iii) The plaintiff has satisfied the Court on the balance of probabilities that the pain and suffering consequence of the compensable injury satisfies the definition of “serious injury.”
10Accordingly, the plaintiff is granted leave to bring common law proceedings to recover pain and suffering damages in respect of injury to his lumbar spine suffered by him during the course of his employment with the defendant.
Statutory framework and applicable principles
11The statutory scheme entitles a person injured arising out of, or in the course of, or due to the nature of employment on or after 20 October 1999 to compensation.[1]
[1] See s134AB(1) of the Act
12Section 134AB(1) notwithstanding, a person shall not recover any damages in any proceedings in respect of such an injury except in accordance with the remaining provisions of s134AB.
13Section 134AB(19) prohibits the Court from granting leave under ss(16)(b) –
“… unless it is satisfied on the balance of probabilities that the injury is a serious injury.”
14In order to succeed in this application, the plaintiff must establish on the balance of probabilities that he has sustained “serious injury” as relevantly defined in s134AB(37) of the Act, namely:
“(a) permanent serious impairment or loss of a body function … .”
15The following provisions as contained in s134AB(38) are relevant to the present case:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, … with respect to—
(i) pain and suffering;
…
when judged by comparison with other cases in the range of possible impairments or losses of a body function, …;
(c)an impairment or loss of a body function … shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence … is, when judged by comparison with other cases in the range of possible impairments or losses of a body function … fairly described as being more than significant or marked, and as being at least very considerable;[2]
…
(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
…
(j)the assessment of serious injury shall be made at the time that the application is heard by the court, unless sections 134ABAA and 135BBA apply.”
[2]See Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 at paragraph [15]; Humphries & Anor v Poljak [1992] 2 VR 129 at 140-1
16To be a “serious injury”, the injury must be one that has serious consequences for the plaintiff judged on an objective basis and, when judged by comparison with other cases in the range of possible impairments, it must be capable of being fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[3]
[3]Lu v Mediterranean Shoes Pty Ltd (ibid) at paragraph [15]; Humphries and Anor v Poljak (ibid) at 140-1
17The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments, not necessarily in the same category.[4]
[4]Humphries and Anor v Poljak (ibid) at 170; Barlow v Hollis [2000] VSCA 26 at paragraph [29]; TTB SMS Pty Ltd v Reading [2020] VSCA 203
18For a body function, the evaluative task concerns the impairment or loss, not the injury that causes the loss or impairment.[5]
[5] Humphries and Anor v Poljak (ibid) at 134; Richards v Wylie (2000) 1 VR 79 at paragraph [16]
19The degree of seriousness of the impairment is to be judged by its “consequences” to the plaintiff and by “comparison with other cases” in the range of possible impairments or losses.[6]
[6]Humphries and Anor v Poljak (ibid) at 140; Lu v Mediterranean Shoes Pty Ltd (ibid) at paragraph [15]
20The assessment of consequences requires a comparison of the plaintiff’s before and after position,[7] and taking account of what the plaintiff has lost, as well as what he has retained.[8]
[7]Humphries and Anor v Poljak (ibid) at 136; Hunter v Transport Accident Commission [2005] VSCA 1 at paragraph [34]
[8]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]; Haden Engineering Pty Ltd vMcKinnon (2010) 31 VR 1 at paragraph [14]
21It is most probable that the plaintiff had an underlying degenerative condition in his lumbar spine prior to commencing work with the defendant. Aggravation of a pre-existing condition may qualify as a serious injury provided that the extent of the aggravation of itself meets the requisite threshold. A comparison must be made of the plaintiff’s condition immediately before the relevant compensable injury with his condition thereafter, and an assessment made of the extent of the additional impairment. If that additional impairment is not “serious”, then leave must be refused.[9]
[9]Petkovski v Galletti [1994] 1 VR 436 at 443; De Agostino v Leatch & Anor [2011] VSCA 249 at paragraphs [9]-[11]
22I note that although the defendant initially submitted that in order to succeed the plaintiff must establish that the plaintiff’s employment was a significant contributing factor to the injury,[10] the parties have since agreed that the plaintiff carries no such burden.[11]
[10]Relying on St Mary’s School v Askwith [2011] VSCA 90
[11] Additional written submissions provided by each of the parties dated 22 March 2021
23The defendant submits that the plaintiff has not suffered a compensable injury; rather, whatever consequences the plaintiff now suffers, they are due to his underlying degenerative condition, or to injuries he sustained while doing arduous work at home, or they are the product of his various other medical conditions.
24This case is complicated by the fact that the plaintiff is encumbered by a number of non-compensable medical conditions, including epilepsy, prostate cancer, osteopenia, and facioscapulohumeral muscular dystrophy. Each of these conditions are productive of consequences, some of which overlap with the consequences associated with the claimed compensable injury.
25The defendant submits that the plaintiff has failed to “disentangle” the consequences of the non-compensable conditions from the claimed compensable injury.
26Ordinarily, it is not permissible to “aggregate” different injuries, none of which are “serious”.[12]
[12]Humphries and Anor v Poljak (supra) at 138 and 146; Lu v Mediterranean Shoes (supra) at paragraphs [28]-[29]; Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179 at paragraphs [58]‑[61]
27Here the plaintiff submits that no question of aggregation arises because the compensable injury occurred progressively over time throughout the course of employment and due to the nature of that employment.[13] On the other hand, the defendant submits that it is the plaintiff’s physical activities at home that have contributed to his degenerative lumbar condition.
[13]Barwon Spinners Pty Ltd & Ors v Podolak 14 VR 622 at paragraph [89]; O’Neill v TD Williamson Aust Pty Ltd [2008] VSC 398 at paragraph [107]
28Even where there are multiple injuries causing an overlap of consequences, that does not undervalue the significance of the consequences of any of them.[14] It may be that a number of compensable injuries have consequences that satisfy the prerequisite elements so that they are each serious injuries in their own right. “It is quite possible – it will be a matter for determination according to the evidence in the particular case – that each of two or more compensable injuries is a legally sufficient cause of the same consequences.”[15]
[14]Poholke v Goldacres Trading Pty Ltd & Victorian WorkCover Authority [2016] VSCA 232 at paragraph [110]
[15] See Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 at paragraph [57]
29Ordinarily, the time for assessing whether an injury is “serious” is the date at which leave is decided.[16]
[16] Swannell & Anor v Farmer [1999] 1 VR 299 at paragraph [36]
30Any impairment or loss of body function must be permanent,[17] that is, “likely to persist into the foreseeable future”[18] or “at least extending beyond a few years”[19] with no significant improvement over time.[20]
[17] Section 325(1) of the Act
[18] Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraphs [18]-[19]
[19] Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357 at 361 and 367
[20]For further discussion about the element of permanency, see Barwon Spinners Pty Ltd & Ors v Podolak (supra), cited with apparent approval on the element of permanence in Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188 at paragraph [34]
31A stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.[21]
[21]ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 at paragraph [70]; Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [3]
32The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.[22]
[22]ACN 005 565 926 Pty Ltd v Snibson (ibid) at paragraph [71]; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at paragraph [199]
33In any event, because the plaintiff asserts that there are pain and suffering consequences, careful examination of the evidence is required in order to determine first, the extent of the pain and, second, its consequences for the plaintiff.
34As to the pain and suffering consequences of an injury, in Aburrow v Network Personnel Pty Ltd & WorkSafe Victoria,[23] Maxwell P and Tate JA observed:
[23] [2013] VSCA 46
“[10] As Maxwell P suggested in Haden Engineering Pty Ltd v McKinnon,[24] it is of assistance in reviewing a body of evidence like this – for the purpose of evaluating the ‘pain and suffering consequence’ of an injury – to distinguish between:
[24] Supra
• the plaintiff’s experience of pain as such; and
• the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[25]
[25] Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [9]
These are not, of course, rigidly separated categories. For example, evidence about the disabling effect of the pain may enable inferences to be drawn about the intensity and frequency of the pain, and vice versa.[26] But the distinction remains important for the purposes of the pain and suffering assessment, as this appeal shows.
[26] See for example Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraphs [46]-[47]
The experience of pain as such
[11]We deal first with [the] experience of pain as such. The approach suggested in Haden, and subsequently endorsed in Sutton v Laminex Group Pty Ltd,[27] was as follows:
[27] (2012) 31 VR 100
The experience of pain
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
…
As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.[28]
[28] Haden Engineering Pty Ltd v McKinnon (supra) at 109-10, paragraphs [46]-[48]
…
The disabling effect of the pain
[19] As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (Ashley JA) said in Dwyer v Calco [Timbers] Pty Ltd (No 2):[29]
[29] [2008] VSCA 260
‘[l]mpairment is concerned with what has been lost. But the significance of what has been lost ... may be informed, to an extent, by what is retained.’[30]
[30]Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [27]. See also Haden Engineering Pty Ltd v McKinnon (supra) at 4-5, paragraphs [9]-[14]
[20] As suggested in Haden (and endorsed in Sutton),[31] the disabling effect of the pain is to be assessed by considering the impact of the pain on the worker’s capacity for work and the degree to which it interferes with the ordinary activities of life, as follows:
[31] Sutton v Laminex Group Pty Ltd (supra) at 110-111, paragraphs [49]-[50]
‘As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her].’
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”[32]
[32] Haden Engineering Pty Ltd v McKinnon (supra) at 5-6, paragraphs [15]-[16]
The Plaintiff’s evidence
35The plaintiff was the only witness called to give viva voce evidence. His evidence-in-chief consisted of adopting as true and correct his two affidavits and of updating his current medication list to include Norspan 20 milligrams.
First affidavit, sworn 8 August 2019[33]
[33] Exhibit B
36The plaintiff was born in 1949 and at the date of hearing was aged seventy-one years. He is married, living with his wife, one of his sons, his daughter-in-law and his granddaughter.
37The plaintiff was educated at Oakleigh Technical School. In approximately 1970, he completed an apprenticeship at General Motors in Fishermans Bend, where he remained until 1971. Between May 1971 and October 1972, he completed National Service at the Australian military bases at Puckapunyal, Balcombe and Liverpool. Between 1972 and 1973, he returned to General Motors to work as a fitter and turner/pattern maker. Thereafter, the plaintiff held various jobs and was in constant employment. Between 2004 and 2009, the plaintiff worked as a contractor for different employers, mostly performing manual labour roles.
38In approximately 2004, the plaintiff commenced working for the defendant as a contractor. During this time he was employed for approximately 24 hours per week. In addition, the plaintiff also performed contract work elsewhere.
39The defendant’s business is an aged care centre consisting of a nursing home and independent living units. At the time the plaintiff worked there, there were approximately 67 beds within the nursing home, approximately 16 apartment units and more than 50 independent living units. The nursing home was then more than fifty years old and some of the units were more than thirty years old.
40The plaintiff’s duties for the defendant required him to perform all of the property maintenance for the nursing home and units. His direct manager, whom I shall only refer to as “Craig”, provided the plaintiff with job cards outlining the duties that the plaintiff was to perform each day.
41Between 2004 and 2010, the plaintiff was the only person responsible for the property maintenance work for the defendant. A part-time maintenance worker managed the lawn and gardens.
42On or about 1 July 2009, the plaintiff was formally employed by the defendant as a maintenance officer on a full-time basis. His usual hours of work were Monday to Friday, 7.00am to 3.30pm or 8.30am to 5.00pm. In addition to working these hours, the plaintiff was also asked to perform overtime and on-call work. More often than not, he was not paid extra for his overtime work.
43As mentioned earlier, the plaintiff is encumbered by a number of injuries and other health conditions unconnected to his work for the defendant. Some of these conditions were diagnosed prior to his employment with the defendant and some were diagnosed after September 2013 when he retired.
44In 2002 and 2006, the plaintiff suffered from depression, for which he took medication for a period of time. In late 2010 or early 2011, the plaintiff had basal cell carcinomas removed from his right and left temples.
45In December 2012, the plaintiff was diagnosed with prostate cancer. In February 2013, he underwent a radical prostatectomy. Between November 2013 and January 2014, the plaintiff underwent radiation treatment for a period of approximately six weeks. Since September 2015 he has had to undergo regular hormone injections every three to six months, depending on his Prostate-Specific-Antigen reading.
46In 2012 and September 2013, the plaintiff underwent hernia repair surgeries.[34]
[34]There is also reference to a hernia recorded in the 2006 clinical notes – DCB 89
47In 2013, the plaintiff was diagnosed with familial essential tremors. This is an incurable genetic disease.
48In January 2015, the plaintiff was diagnosed with facioscapulohumeral muscular dystrophy. This is also an incurable genetic disease.
49In July 2018, the plaintiff was diagnosed with epilepsy. This condition is managed with medication.
50Addressing the circumstances leading up to the subject claim, the plaintiff deposed that over the course of his employment with the defendant he was required to perform a significant number of maintenance duties. Many of these duties involved heavy and repetitive lifting and strenuous and awkward manual labour.
51By way of example, the plaintiff described how he was regularly required to move beds without assistance. There were two types of beds that were used at the facility – a low line bed which weighed approximately 250 kilograms, and hospital beds that weighed approximately 150 kilograms. When moving low line beds, the plaintiff had to dismantle the bed into four parts and then move each part separately through doorways and hallways and then either into a different room or into storage. Because of their heavy weight, often the plaintiff had to drag each component part of the bed on the ground, as it was too heavy for him to carry alone. The process for moving a hospital bed was different. The plaintiff had to stand the bed up on one end and manoeuvre it on two wheels through doorways and hallways. Again, this task was performed unassisted. It was a difficult task for the plaintiff to perform as it required him to balance the heavy bed so that it would not fall to the ground should he lose control of it.
52When required to move the beds into storage, the task was even more difficult as the plaintiff had to move the beds into an old and unused independent living unit that was approximately 200 to 300 metres away from the nursing home. This was a particularly strenuous task as it involved moving heavy parts or balancing and wheeling a heavy bed down long, narrow corridors then down a hill along a road with potholes, and then manoeuvring it around garden beds until it was finally placed into the unit. Sometimes the plaintiff was required to fetch these beds from the storage unit and return them to the nursing home, in which case the task was performed in reverse order.
53The plaintiff’s duties also involved performing a series of general maintenance jobs which often included heavy, repetitive and/or awkward manual labour. For example the plaintiff was required to move and change carpets, plaster walls, perform tiling, paint internal and external parts of the buildings, clean kitchen exhaust canopies, clean gutters and roofs, change lighting and clean and wash wheelchairs. In order to perform many of these duties, the plaintiff was required to use ladders and other equipment and tools. In order to access the ladder and equipment, he had to fetch them from the maintenance shed and then move them to the nursing home or units. The only trolley available was a bag trolley, which the plaintiff deemed unsuitable. In order to perform his duties, he was frequently required to carry the heavy ladders and equipment back and forth as they were needed. The plaintiff estimated that the ladders each weighed approximately 30 kilograms.
54The plaintiff claimed that as a result of this heavy, repetitive and/or awkward manual labour over the course of his employment with the defendant, over time he suffered a back/lumbar spine injury which progressively deteriorated over the course of his employment.
55The plaintiff described the onset of his lower back pain as follows:
“38.During my time … [with the defendant] I would occasionally experience pain in my lower back. I believe I may have first experienced some back pain and symptoms in around 2009. However, I would often put up with it as I did not want to come across as a complainer and risk losing my job. Given my age, I was concerned that should I lose my job … [with the defendant], I would not be able to find new employment elsewhere.
39.In sometime of 2009, I recall notifying [my supervisor] Craig that I had back pain and needed a bit of time off work.
40.Until 2010 or 2011, I was the only Maintenance Officer at … [the defendant]. As a result, I was required to perform all of my duties alone between 2004 and 2010/2011. In 2010/2011, another Maintenance Officer was finally employed to assist me.
…
42.In sometime of 2012, in response to my ongoing back pain, I recall Craig organising me a back brace to wear while working. However, the back brace was not particularly helpful.
43.In mid-2013, I recall having a conversation with Craig regarding what I could and could not do by reason of my back pain and symptoms according to my doctor. For instance, I told Craig that I could not climb ladders anymore and bend too much. Although Craig verbally agreed to comply with this, it was not adhered to in practice. I was still expected to complete my duties.
44.On or about 29 November 2012, I recall specifically aggravating my back while I was cleaning the range hood in the kitchen. The task required me to twist and turn while on a ladder in order to properly reach and clean the range hood which was over a stove with six burners. I believe I lodged an incident report for this particular incident.
45.In around July/August 2013, I also recall needing to repair a shower in one of the resident’s room[s]. This task required me to twist, turn and bend in awkward positions and was a task that my doctor had told me not to do. I recall telling the Sales and Admissions Manager, Sandra … that I was not meant to be doing such a repair as it was causing me severe pain and it was a task that my doctor had not approved. However, Sandra told me that I had to do it regardless as Craig had said that I had to complete it. I ultimately completed the task as I was scared of losing my job.”[35]
[35] Exhibit B, at paragraphs [38]-[45]
56I note here that the defendant did not challenge the plaintiff’s evidence as set out above.
57Regarding medical treatment, the plaintiff deposed that while employed by the defendant, most of his medical needs were managed by his General Practitioner, Dr Sahhar. If Dr Sahhar was not available, the plaintiff would see another doctor at the practice.
58The plaintiff deposed: “I recall attending Dr Sahhar on a number of occasions regarding my back pain and symptoms.”[36] The defendant submits that there were few such consultations, and that most of the documented consultations about back pain and symptoms arose from heavy work that the plaintiff undertook at home and were not work related.
[36] Exhibit B, at paragraph [46]
59The plaintiff deposed that between 2009 and 2012, his back pain and symptoms were primarily managed by pain-relief medication, including Panadeine Forte and Tramadol, when needed. On a number of occasions in 2009, the plaintiff attended a chiropractor, Dr Heather McColl, for treatment. The treatment provided only limited relief of his pain and symptoms.
60In late 2011, the plaintiff was referred for a CT scan of his lumbar spine after a period of severe back pain. The report of the CT scan states:
“CONCLUSION:
Lower lumbar spondylosis, dorsal disc bulge L3/4, L4/5 disc with mild to moderate secondary canal stenosis and left lateral bulge of L5/S1 disc contacting the left L5 nerve.”[37]
[37] Exhibit D
61Subsequent to the CT scan, the plaintiff was referred to Gippsland Physiotherapy Group for further management.
62In approximately February 2012, the plaintiff had a CT-guided nerve root canal injection after his back pain was particularly aggravated and he was experiencing radiating pain down his left leg and foot. For a short period of time the injection provided some relief from pain and symptoms.
63In approximately July 2013, the plaintiff had another CT-guided nerve root canal injection at L4-5 after his back pain was aggravated again and he was experiencing pain and numbness down his left leg and foot. The plaintiff claimed that on this occasion the injection provided no relief.
64As mentioned, the plaintiff retired in approximately September 2013. He was then aged sixty-four years.
65In approximately late 2014, the plaintiff was again referred to Gippsland Physiotherapy Group after a period of persistent lumbar spine pain. He ceased physiotherapy treatment after a period of time as he found it did not help.
66As at 8 August 2019, the date of swearing his first affidavit, the plaintiff was no longer receiving medical treatment for his back as he was told there was nothing further that could be done. He was then taking Panadol Osteo for pain relief. He also gained relief from placing a hot water bottle on his back.
67Since retiring, the plaintiff has not resumed any other form of paid employment. He deposed that he retired because of his “ongoing health concerns, including … [his] ongoing back pain and symptoms”.[38]
[38] Exhibit B, at paragraph [56]
68The plaintiff deposed that he suffers the following consequences:
“58.I suffer from almost constant back pain that varies in intensity throughout the day depending on what I do. The more physical tasks I engage in during the day, the worse the pain becomes.
59.Sometimes my back pain radiates into my buttocks and down the back of my thighs and into my knees. The pain is worse in my left lower limb than the right. I suffer from some pins and needles in my feet.
60.I have developed a left foot drop and have difficulties with balancing [caused by facioscapulohumeral muscular dystrophy and unconnected with the claimed compensable injury]. In order to get around, I have become reliant on a walking stick or rollator/wheeled walking frame. I also have a mobility scooter that I use regularly when I am outdoors for any length of time.
61.I struggle to stand for more than 5 to 10 minutes at a time before experiencing increased back pain. I therefore avoid standing in one spot where possible.
62.I have difficulties climbing up stairs.
63.I avoid heavy lifting, bending and twisting which all aggravate my back pain. As a result, I am very limited in what manual work I can perform around the house. This saddens me as this was something I was very fond of doing as I have always been very good with my hands. Most of the household cleaning and gardening is done by my family now.
64.I regularly go to church with my wife, however, I have had to cease singing in the choir because I am no longer able to stand in one position for any length of time. This was something I had previously enjoyed doing.
65.I am no longer able to ride a bike. This is particularly saddening for both my wife and I as taking our bikes for rides was part of our retirement plan.
66.I have been deeply physically impacted by my work injury. My back injury has affected and limited what I can do on a day to day basis and stripped me of my capacity to do the things that I am good at and love. I[t] has taken away some of my retirement plans and dreams.”[39]
[39] Exhibit B, at paragraphs [58]-[66]
Second affidavit, sworn 22 February 2020[40]
[40] Exhibit B
69In his updated affidavit, the plaintiff deposed that in addition to the conditions from which he suffers as set out in his first affidavit, he has since been diagnosed with osteopenia, which he manages by taking Calcium and Vitamin D-2. He also suffers from headaches, the cause of which is unknown.
70Regarding his lower back, the plaintiff currently receives no treatment as he has been told that there is nothing that can be done to fix it. He continues to take Panadol Osteo for pain relief. He takes approximately four tablets per day, although he tries to avoid taking medication where possible because “I don’t want to become a ‘pill-popper’ as my father was one”.[41]
[41] Exhibit C, at paragraph [8]
71The plaintiff also uses hot water bottles and hot showers to relieve his back pain and symptoms. He tries to prevent aggravating his back by avoiding tasks that he knows will trigger pain.
72Regarding consequences, the plaintiff deposed:
“10.I continue to suffer from ongoing back pain. I have just learned how to live with it as best I can.
11.The pain varies in intensity. For about three to four days per week, I would describe the pain to be about a 4 out of 10. My pain levels change depending on what I have done during the day. For example, my back pain will be worse after a day of lots of bending and standing. When my pain is really bad, I would describe my pain levels to be 8 or 9 out of 10.
12.I aggravate my back about two to three times per month on average. Once my back flares up, it can take up to four days to settle down again. When my back pain flares up, the only thing that seems to make it go away is if I do almost nothing at all for consecutive days until it gets better.
13.The pain continues to radiate down my left lower limb in particular. This radiating pain occurs once per month on average.
14.When my back pain is particularly bad, I often experience numbness as well.
15.My standing tolerance is still not good. I struggle to stand for longer than 5 to 10 minutes at a time. I need to keep moving all the time to avoid aggravating my back. After a while of standing, I need to hang onto things or sit down for a break.
16.My sitting tolerance is also limited. I can sit for about 30 minutes at a time on average. Sometimes more, sometimes less. After sitting for a period of time, I try to get up and move around.
17.I can walk, but only gently. I struggle to walk fast. I use a walking stick or walker sometimes. I usually use a walking stick or walker when I am walking for long distances.
18.There are still many things that I do not do or am restricted from doing. For instance, I no longer mow the lawn or cut the hedges of our garden. My daughter in law or son assists me with the gardening now.
19.We are in the process of repairing our house so that we are able to sell it and purchase a property that is not on a slope (as our current property is on a slope). Due to my injury, walking up and down our property is difficult for me. However, I am basically unable to perform any of these repairs without the assistance of my son. My son does almost all the repairs and I am often standing beside him as a Tool Assistant. I find this incredibly frustrating as repairs and maintenance was a forte of mine previously. I used to be able to do most repair and maintenance jobs. I have always been someone who worked with his hands. I have simply learnt to restrain myself. Otherwise, I will aggravate my back, end up in agony and pay for it for days.
20.I am still limited in what I am able to do around the house. I no longer vacuum the house. I do not do anything that involves the lifting of heavy weights. I try to help around the house by putting on the washing and hanging up the washing and the dishes. I want to help around the house insofar as I can. I need to be doing something to feel useful, otherwise, I will have no purpose in my life anymore.
21.When I go shopping, I help by pushing the trolley around.
22.I still no longer sing as part of our church choir each week. I simply cannot stand long enough to sing.
23.Overtime [sic], I have learnt to adjust to and live with my condition. It is frustrating and saddening, but I am trying to get on with my life as best I can. I have no alternative.”[42]
[42] Exhibit C, at paragraphs [10]-[23]
Cross-examination
73Under cross-examination, the plaintiff confirmed that while working for the defendant he also performed maintenance work for other employers, making up a total of approximately 48 hours’ work per week, half of those hours being for the defendant, and half with other employers. The plaintiff stated that the work for other employers during that time involved various tasks, such as electrical tag and testing, painting rooms, general maintenance work, and a small amount of gardening.[43] He agreed that this work involved lifting ladders and working on ladders.
[43] Transcript (“T”) 26
74When asked whether he would do any heavy lifting at jobs other than with the defendant, the plaintiff stated that when compared to his work with the defendant, he would not call it heavy lifting.[44]
[44] T26-27
75The plaintiff agreed that he was diagnosed with prostate cancer in about 2012 before having surgery in February 2013 to have his prostate removed.[45] He stated that he continued to work for the defendant until 13 September 2013, undergoing radiation treatment for his prostate cancer in late 2013.[46] The plaintiff continues to have hormone treatment for his prostate cancer which involves an injection once or twice a year. He takes no other medication for that condition. He testified that the cancer has no impact on his day-to-day activities.[47]
[45] T27
[46] T27
[47] T27
76When asked about the surgeries he had had in 2012 and 2013, the plaintiff stated that they were a combination of prostate surgery and surgery for work-related hernia injuries.[48] He clarified that he was given a doctor’s certificate from Dr Sahhar after his prostate cancer surgery, specifying that he must not bend or do any work up a ladder. The plaintiff asserted that although he gave the letter to his boss, Craig, Craig denied receiving it.[49] The plaintiff accepted that he did not lodge a WorkCover claim against the defendant for the hernia injuries, stating that he “didn’t want to because … [he] had [had] enough.”[50] Following the hernia operations in 2013, he took time off work. When asked whether his hernia injuries had now resolved, the plaintiff stated that he had not been back to the doctor and while he sometimes felt a little pain in the lower abdomen, it caused him no restriction.[51]
[48] T28
[49] T28
[50] T28
[51] T28-29
77The plaintiff confirmed that he, his mother and his brother had all been diagnosed with familial essential tremors and that he had suffered from it since he was ten years old.[52] Although this illness causes his hands to sometimes shake, it does not prevent him from using them.[53] When questioned about symptoms of dizziness, the plaintiff replied that that was due to his epilepsy.[54]
[52] T29
[53] T29
[54] T29
78The plaintiff confirmed that he was diagnosed with muscular dystrophy in 2015 and that it is this illness that is responsible for his left foot drop.[55] He denied that his muscular dystrophy was the reason he used a motorised scooter. He explained that he used a walker and a walking stick for two reasons; first, due to balance issues brought on by epilepsy and, second, because both devices take pressure off his spine, helping his back pain.[56] The plaintiff added that he would only experience dizziness from his epilepsy once a month and that it had nothing to do with his back.[57]
[55] T29
[56] T29-30
[57] T30
79When asked to identify the restrictions caused by his epilepsy and associated dizziness, the plaintiff testified that this condition prevented him from climbing ladders as “[t]he doctor said I’m not allowed to”.[58] He added that he had given up driving, fearing that he could pose a danger to other road users.[59]
[58] T30
[59] T30-31
80Taken to paragraph 37 of his first affidavit, which he agreed was correct,[60] the plaintiff was asked why he wrote that he remembered first experiencing back pain in 2009.[61] The plaintiff responded that he could not think of any specific incident that triggered this memory, but that he knew he went to see Dr Sahhar in 2009 about his back.[62]
[60] Exhibit B
[61] T31
[62] T32
81When asked about the reports from McColl Chiropractic,[63] the plaintiff agreed that the notes from his two attendances with Heather McColl on 14 and 18 August 2009 made no mention of the defendant when they described him having moved boxes at night, as having trouble sleeping, and having tripped three weeks prior.[64] He could not recall if the incidents described in exhibit 5 (the notes from McColl Chiropractic Centre) had happened at work, but he thought that they could have happened there, as he had worked nights at Fairview and the defendant’s number was recorded in the notes.[65]
[63] Exhibits 5 and L
[64] T33
[65] T33
82Taken to the report of Dr McColl dated 11 November 2015[66] which explicitly stated that “there were no notes taken pertaining to [the consultations of 14 and 18 August 2009] being work related”,[67] the plaintiff denied that the report refreshed his memory about the reason for the consultations.[68]
[66] Exhibit L
[67] Exhibit 5, Question 3
[68] T34
83The plaintiff explained that he had not made contemporaneous complaints about his back pain and that he did not go to his general practitioner to report any incident at work because he was frightened of losing his job.[69] He stated that during the period of his employment with the defendant, the onset of his back pain would occur one or two days after he performed tasks such as moving a bed, cleaning a rangehood or slipping off a ladder.[70] When pressed on why he could not talk to his general practitioner about his work, the plaintiff said that he was not a complainer and just put up with the situation despite suffering “terrible pain”.[71] He compared his reticence to complain to his general practitioner with his reluctance to take painkillers, and that in hindsight he wished that he had spoken up sooner about his pain. He stated:
“I had a father and a sister that did nothing but complain about their pains and hurt and I was not going to be one of those people that complained about how painful – how much they hurt and I now admit I made a mistake … I wish I did speak up but time has gone, water’s under the bridge, I cannot change what happened. I wish I did speak up.”[72]
[69] T34-35
[70] T34-35
[71] T35
[72] T35-36
84With reference to his earlier assertion that he knew he went to his general practitioner to complain of back pain in 2009, the plaintiff was taken through his medical records of the West Gippsland Medical Clinic.[73] After being shown several entries unrelated to back pain, the plaintiff was taken to the entries of Wednesday, 23 September and Thursday, 1 October 2009, which recorded cervical spine pain and pain in the neck respectively.[74] The plaintiff agreed that there was no mention of back pain in any of the 2009 records, nor was there mention of back pain in the records of 15 February 2010 or 19 July 2010.[75]
[73] Exhibit 7
[74] Exhibit 7, DCB 86
[75] T39
85Taken to his resignation letter dated 25 September 2013 addressed to [#name deleted] of 25 September 2013,[76] the plaintiff agreed that he had a reasonably good relationship with the addressee and that he had an extremely good relationship with the defendant.[77] He agreed that before his hernia operation he and his wife had discussed the possibility that he might continue to work with the defendant, on a casual basis, after he retired.[78]
[76] Exhibit 8
[77] T41
[78] T41
86When asked whether it was his hernia operation and prostate cancer treatment that prompted his decision to retire, the plaintiff answered by accusing Craig of forcing him out by making the plaintiff perform tasks he should not have been doing, such as climbing ladders, kneeling down and bending.[79] The plaintiff denied that he retired because of his prostate cancer, the associated treatment, or his hernias. He insisted that he decided to leave work because of the way Craig treated him.[80] The plaintiff further denied that the decision to issue these proceedings was motivated by a desire to seek revenge against Craig.
[79] T41-42
[80] T42
87When taken through the 2013 records of his general practitioner,[81] the plaintiff agreed that the entries documented attendances for various reasons, none of which were recorded as work related:[82]
[81] Exhibit 7
[82] T43-45
· 1 February in relation to prostate enlargement;
· 6 February for prostate cancer counselling, light-headedness, nausea, stress at work, and the need for time off work before surgery;
· 26 February in relation to his prostate surgery wound;
· 1 March consultation post prostate surgery;
· 5 March for a nurse to dress his surgery wound;
· 12 March consultation post prostate surgery;
· 8 April noting the plaintiff felt fit to return to work;
· 19 April reporting worsening familial essential tremors and left L4-5 disc prolapse, prescribed Betaloc, 25 milligrams, warned of asthma and lethargy;
· 31 May with the note that the plaintiff complained of dizziness at times, with the plaintiff agreeing that he had not been diagnosed with epilepsy at that stage;
· 4 June with a lesion under his left eye;
· 26 June reporting dizzy spells on and off, shortness of breath and sweating, with the medical notes stating “no chest pain, left arm pain or back pain”;
· 28 June for a stress test;
· 19 July complaining of paraesthesia of the lateral left thigh for three to four months;
· 2 August for a nerve root injection;
· 27 August with dizziness and nausea, as well as a left inguinal hernia for which he was referred to Dr Mansiston for radiotherapy; and
· 19 September, the notes record:
“Had incisional hernia repair, no lifting for four weeks. To commence radiotherapy for cancer of the prostate. To go on disability pension, forms completed.”[83]
[83] T47
88The plaintiff conceded that he could not recall the attendances of 19 April and 26 June 2013.[84] Similarly, the plaintiff could not recall how long he was off work following his prostate surgery.[85]
[84] T44-45
[85] T45
89When put to the plaintiff that there was no record in the general practitioner’s notes of him complaining of any back pain associated with work, the plaintiff agreed, but added that every night he would put hot water pads on his back and that this was witnessed by his wife and son.[86] He remarked that he had to lift a bed weighing 40 or 50 kilograms and that he had to climb up and down ladders fifty times a day, implying that this was the cause of the symptoms in his lumbar spine.[87]
[86] T47-48
[87] T47-48
90Despite being read the clinical note of his general practitioner of 12 November 2011 that stated: “following heavy physical work at home, severe back pain gradually increasing,”[88] the plaintiff claimed no memory of doing heavy work at home or laying floorboards precipitating this consultation, but conceded that he could have.[89]
[88] Exhibit 7, DCB 81
[89] T48
91The plaintiff then conceded that the email from Ms Butt, his physiotherapist, dated 9 December 2011[90] would have contained accurate information about him having injured his lower back laying floorboards at home in early November 2011, but denied any recall of the actual instance.[91] Similarly, the plaintiff could not recall reducing his work hours to four days per week as stated in Ms Butt’s email, taking time off work in November 2011 after injuring his back at home laying floorboards, or going to another physiotherapist around that time for his back.[92] The plaintiff did however concede that he laid floorboards at home with the assistance of his son and daughter-in-law.[93]
[90] Exhibit 10
[91] T49
[92] T49-50
[93] T50
92The plaintiff was then taken through the documents from Gippsland Physiotherapy Group.[94] He accepted that the notes showed that he had attended on 24 November 2011 presenting with lower back pain he had been experiencing for two weeks as a result of laying timber flooring. After an attendance in December 2011 where the plaintiff was given some exercises, his next attendance at the Gippsland Physiotherapy Group was on 10 September 2014, on which occasion it was noted that the plaintiff complained of lower back pain, right side, past four to five years.[95]The plaintiff was taken through attendances on 17 September, 26 September, 10 October, 20 October and 24 October 2014 which recorded progressive improvement in the plaintiff’s back pain.[96] The plaintiff agreed that he never returned to that physiotherapist after 24 October 2014.
[94] Exhibit 6
[95] T51
[96] T51
93Despite there being no mention of back pain associated with work for the defendant in the medical records he had been taken through, the plaintiff was adamant that he had experienced back pain before the note was made about back pain associated with laying floor boards.[97] In response to questioning as to why he did not see a doctor about his back pain before 2011, the plaintiff answered that if he complained to his doctor about back pain caused by work, the defendant would find out and use it as an excuse to “put … [him] off”.[98]
[97] T51
[98] T52
94The plaintiff accepted that the note in the general practitioner’s records dated 12 November 2011 detailing his back pain following heavy physical work at home[99] was accurate.[100] He agreed that he did no digging in the garden when working for the defendant but stated that as a maintenance worker he did a lot of physical work, including lifting.[101] The plaintiff also agreed with the accuracy of the entry of 9 February 2012,[102] which stated that he had presented with flared up lower back pain from digging in the garden at home.[103]
[99] Exhibit 7, DCB 81
[100] T53
[101] T55
[102] Exhibit 7, DCB 80
[103] T56
95After a statement the plaintiff wrote and attached to a 2014 WorkCover Claim Form[104] was read to him, the plaintiff agreed that it was accurate to say that following his prostate surgery he took seven weeks off work and reduced his working hours to 24 per week.[105]
[104] Exhibit P
[105] T57
96In respect of the reference he made in the statement to periods of nausea, dizziness and light-headedness forcing him to sit and rest, the plaintiff stated that those symptoms were related to his epilepsy rather than to his prostate.[106]
[106] T58
97The plaintiff was then taken to that part of his statement in which he had written that he had four to five hours of surgery for a hernia in August 2013, was subsequently off work for more than six weeks, and was prohibited from doing any lifting or anything strenuous.[107] The statement also explained the timing of his retirement. It was put to the plaintiff that he stopped working in September 2013 because of his prostate cancer and hernia operation, to which he replied that he retired because:
“When I was laying in bed, I thought to myself I wasn't going to let Craig put me in a box – a six foot box under the ground. Because he was making me do what I shouldn’t be doing. As I said before, he made me go and do a room and do a job I shouldn’t have been doing.”[108]
[107] T58
[108] T58
98The plaintiff went on to agree that he retired because of the restrictions imposed following the prostate cancer surgery, adding:
“He [Craig] didn’t care about me, he really didn’t.”[109]
[109] T59
99I should add here that the statement contains this passage:
“At this time I made the decision that I needed to retire from work and I claimed Income Protection from my Superannuation Company for my cancer and not being able to work.
My back has continued to deteriorate and the diagnosis is continuing degeneration of the spine.
Currently I am only allowed to perform household tasks for a half hour at a time and then must rest for an hour. I sleep with a hot water bottle on my back, I take continual pain medication. I have had two cortisone injections into my back but these have not been of great help.
…
I am lodging a Workcover claim for the back injury. This occurred during my time … [with the defendant] and it is hard to pinpoint the exact time of injury. I am never going to be out of pain for the rest of my life.
… .”[110]
[110] Exhibit P, DCB 109
100The plaintiff agreed that his left foot drop and the problem he had with his balance were caused by his muscular dystrophy.[111] He was unsure whether it was the muscular dystrophy or his epilepsy that caused his difficulty in climbing stairs.[112]
[111] T59
[112] T59
101The plaintiff agreed that on doctor’s advice he could no longer ride a bike because of bending his back. He agreed, however, that his epilepsy also prevented him from riding a bicycle.[113]
[113] T59
102Despite claiming restrictions with sitting, standing and walking, the plaintiff conceded that he had been able to travel to Europe for ten weeks within the previous twelve months. He stated, however, that those restrictions somewhat inhibited his capacity to enjoy the full benefits of the trip. For example he was unable to go to certain places sometimes due to his back injury, although sometimes this was because of his epilepsy.[114] The plaintiff conceded that his back injury did not prevent him from travelling by plane, although he took his walker with him.[115] On this trip, the plaintiff travelled by train around Italy, Holland, Germany, France and England, staying in hotels or in rented accommodation.[116] The plaintiff stated that while in Europe he did not climb up a lot of stairs because of his back, specifically rejecting the suggestion that his epilepsy would also have prevented him doing that.[117] He acknowledged that sometimes his epilepsy would prevent him from going places such as into confined spaces, but stressed that at other times it was his back that was the problem.[118]
[114] T59
[115] T60
[116] T60-61
[117] T61
[118] T61
103On the subject of other recreational pursuits, the plaintiff agreed that he planned to go caravanning with his wife, although the trip had to be deferred due to the COVID-19 pandemic. He stated that his son had bought a caravan the previous year, and the plan was to drive around Australia with his wife for two months.[119] As the plaintiff is no longer able to drive, he stated his wife would drive and that he would be merely a passenger.[120] The plaintiff stated that he was not sure whether his back injury would have prevented him from going on the trip because the trip never happened.[121]
[119] T61
[120] T61
[121] T61-62
Re-examination
104In re-examination, the plaintiff was taken to the 2009 clinical notes of McColl Chiropractic.[122] The plaintiff clarified that the phone number of the defendant was written on the page that recorded him having a history of moving boxes two nights prior and tripping three weeks before that.[123] He was unsure why the defendant’s telephone number appeared there but explained that it could be because he used to have to work overtime or attend at work at night for emergency calls.[124] The plaintiff could not identify the other telephone number written on the report. He thought that another name that also appeared on the page might have been a cleaner at work who later became a “PC”.[125]
[122] Exhibit 5, DCB 43
[123] T62-63
[124] T63
[125] T63
105When asked whether he could recall any other examples of tasks he performed at work for the defendant that caused him back pain, the plaintiff explained that there were many, including having to climb up ladders to clean light covers at a fast rate and then missing rungs when descending, resulting in back pain one or two days later.[126] He also noted that he would have to clean gutters on the units and paint the inside of the units, both of which caused him back pain.[127]
[126] T64
[127] T64
106The plaintiff reiterated that the reason he did not go to the doctor when he had work-related back pain was because he was afraid of losing his job.[128]
[128] T64
107Asked to compare the work he did laying floorboards at home with the work he did for the defendant, the plaintiff stated that the floorboards were very light and that it was a light job, whereas the beds he had to move at work each weighed between 200 and 250 kilograms, with frames of 50 kilograms and bed ends of 75 kilograms. He admitted that he had never laid floorboards at work, although his work did involve laying carpet unassisted.[129]
[129] T67-68
108The plaintiff elaborated on his earlier testimony about the difficulties he encountered because of his back pain during his ten-week trip to Europe. He explained that he could not climb the Leaning Tower of Pisa because of the many stairs and that there were other places he did not go because they also had a lot of stairs.[130]
[130] T68
The Plaintiff’s treating healthcare professionals
Dr Sahhar, general practitioner[131]
Dr Sahhar’s first report, dated 3 June 2015[132]
[131] Exhibits F, G, H and J
[132] Exhibit F
109Dr Sahhar was one of several general practitioners who saw the plaintiff at the West Gippsland Medical Clinic. In his first report, Dr Sahhar outlined two of the plaintiff’s previous presentations at the clinic. At the first, the plaintiff was seen by Dr Vincent Xu on 14 November 2011:
“[The plaintiff] presented stating that he had severe back pain and he had taken an anti-inflammatory, Naprosyn, which had caused indigestion.
Dr Xu noted that he had a very stiff back with tenderness over the lumbar spine it was on this basis that a CT scan was organised.
The CT scan showed Lower lumbar spondylosis, dorsal disc bulge L3/4, L4/5 disc with mild to moderate secondary canal stenosis and left lateral bulge of L5/S1 disc contacting the left L5 nerve.”[133]
[133] Exhibit F, page 1
110The plaintiff then presented at the clinic on 16 February 2012 where he was seen by Dr Sonali Jain for continuing lumbar spine pain. He was given a CT guided cortisone injection into the L4 and L5 nerve roots on 24 February 2012.[134]
[134] Exhibit F, page 2
111Dr Sahhar eventually saw the plaintiff on 13 February 2014 when he was still suffering from lumbar spine pains. The report records that the plaintiff was finding it difficult to attend work and that he was unable to recall a single precipitating event at work but that he did maintenance work for the defendant, requiring him to do bending and lifting.[135] The plaintiff reported that his lumbar spine was gradually getting worse while attending work and had been deteriorating since about 2009.[136]
[135] Exhibit F, page 2
[136] Exhibit F, page 2
112Dr Sahhar opined that the plaintiff was unfit for any work duties and prescribed Mobic, 7.5 milligrams. The report notes that the plaintiff had been highly motivated and very loyal to his work. Previously he had not wished to make a WorkCover claim, but in 2014, because of his ongoing back problems, the plaintiff felt obligated to lodge a claim.[137] Notwithstanding that the plaintiff had been unable to identify any specific incident at work that caused his low back symptoms, Dr Sahhar was of the view that the plaintiff’s work for the defendant was a significant contributor to his injury.[138]
Dr Sahhar’s second report, dated 31 March 2016[139]
[137] Exhibit F, page 2
[138] Exhibit F, page 2
[139] Exhibit G
113Dr Sahhar reported that the plaintiff is very hardworking and highly motivated, having performed heavy duties at both home and at work.[140] Dr Sahhar opined that the plaintiff –
“… is currently not fit for any work due to cervical and in particular lumbar spine spondylosis and chronic pain as a result. I believe that his spondylosis is progressive and it is very possible that he will have episodes of relapse of his pain and he may require a further root injection.
In my opinion heavy work at Fairview Homes may be a contributing factor but unfortunately I could not see any entry in the clinical notes by any of the doctors stating that there was a specific injury at work whilst working for [the defendant]. That does not imply that work for Fairview [H]omes was not a contributing factor but I suspect with … [the plaintiff] that he is a non-complainer and may have chosen to [scil. not] to report any injury at Fairview Homes as it occurred.”[141]
[140] Exhibit G, page 1
[141] Exhibit G, page 2
114I note that there is a subtle difference expressed on the question of causation in this report when compared to the first: in the first report, Dr Sahhar assessed the plaintiff’s work as a “significant contributor” to his injury, whereas in this report, he concluded work “may be a contributing factor”.
Dr Sahhar’s third report, dated 12 October 2018[142]
[142] Exhibit H
115In this report, Dr Sahhar repeated some of the plaintiff’s presenting history:
· In 2014, the plaintiff had lumbar spine pains, making it difficult for him to attend work;
· The plaintiff’s work for the defendant required him to do lifting and bending;
· Although the plaintiff could not remember a single event at work, his pain got worse while he was working;
· The plaintiff believed his lumbar spine symptoms started in 2009;
· X-rays on 15 November 2011 showed left L4-5 disc prolapse with impingement of the nerve fibre; and
· A CT scan on 15 November 2011 showed lower lumbar spondylosis with a dorsal disc bulge at L3-4 and L4-5 with mild to moderate secondary canal stenosis and left lateral bulge of L5-S1 disc contacting the left L5 nerve.
116Dr Sahhar concluded:
“In summary, this man suffers from lumbar spine spondilousis, and disc proplase associated with his work as a maint[en]ance worker. He has been highly motivated and not sought to proceed with a workcover claim but in 2014 because of ongoing problems with his back he felt he was obliged to commence [a] workcover compensation claim. I support his claim and believe that his work is [a] significant contributor to his injury.”[143]
(sic)
[143] Exhibit H, page 2
117This conclusion represents a return to the opinion expressed by Dr Sahhar in his first report, namely that the plaintiff’s work was a significant contributor to his injury.
Dr Sahhar’s fourth report, dated 22 July 2020[144]
[144] Exhibit J
118Comprising five bullet points, Dr Sahar’s final report confirmed that the plaintiff’s diagnosis is lumbar spondylosis, L4-5 disc prolapse with spinal canal stenosis, causing the plaintiff to suffer from restricted movement of the spine, and pain with prolonged sitting, standing, and lifting. Dr Sahhar opined that the condition was chronic with no expectation of improvement, and that despite cortisone injections and physiotherapy in the past, the only ongoing treatment option was to prescribe morphine for the pain.
119On the question of causation, this time Dr Sahhar opined:
“In my opinion, his lumbar spine spondylosis and disc prolapse is due to hard work and has been contributed to [by] hard work and lifting associated with his workplace.”[145]
Mr Scott Lindsay, physiotherapist, report dated 17 November 2015[146]
[145] Exhibit J, page 1
[146] Exhibit K
120Mr Lindsay first treated the plaintiff on 10 September 2014. At that time, the plaintiff presented with a complaint of a four to five-year history of lower back pain and stiffness since working in aged care.[147] The plaintiff reported to Mr Lindsay that for no apparent reason his back pain had worsened in the few months leading up to this first appointment.
[147] Exhibit K, page 1
121Mr Lindsay opined that the plaintiff was suffering from degenerative discogenic spondylitis of the lumbar spine.[148] In his opinion, the degeneration of the plaintiff’s back condition “would have been accelerated due to the repetitive and heavy nature of the work in aged care.”[149] In terms of treatment for this diagnosis, Mr Lindsay considered that because of the chronic nature of the plaintiff’s injury, he would benefit from specialist management and physiotherapy, adding that without physiotherapy and exercise, the plaintiff’s condition would deteriorate.[150]
[148] Exhibit K, page 2
[149] Exhibit K, page 2
[150] Exhibit K, page 2 and 3
122With regard to work capacity, Mr Lindsay recommended that these restrictions be imposed:
“[N]o lifting greater than 5kg, no repetitive bending and lifting, no sitting or standing greater than 15min at a time, breaks every 30min for stretching.”[151]
Dr Heather M McColl, chiropractor, report dated 11 November 2015[152]
[151] Exhibit K, page 3
[152] Exhibit L
123The plaintiff consulted Dr McColl of McColl Chiropractic on two occasions: 14 and 18 August 2009. Dr McColl’s report records that the plaintiff presented with acute lower back pain on 14 August 2009, two days after lifting boxes and three weeks after tripping. Dr McColl noted that the plaintiff had had a history of sciatica years before this episode, for which he had consulted another chiropractor some years prior. The plaintiff’s first examination at McColl Chiropractic revealed –
“… biomechanical dysfunction at L5, L2 and his Sacrum. Reflexes even but reduced responsiveness at S1, a straight leg raise test positive at 90 degrees on the left, prone leg extension test even but difficult with 20 degrees extension only, cervical compression test negative, tenderness to touch at right lumbosacral junction, no numbness or tingling evident, valsalvas [scil. valsala] test was negative and poor quality of sleep the night prior to this initial consultation.”[153]
[153] Exhibit L
124In his second consultation on 18 August 2009, the plaintiff showed –
“a 75-80% improvement and sleep quality had improved also. … [The plaintiff] did not continue with further recommended care at this time.”[154]
[154] Exhibit L
125The report makes reference to Questions 2, 3, 4, 5 and 6, which are neither described in nor attached to the report, but to which the report gives responses. In response to Question 2, Dr McColl noted that she had not consulted with the plaintiff in recent years and could therefore not determine whether he had an ongoing condition.
126Dr McColl’s response to Question 3 is that there were no notes taken that indicated the plaintiff’s back injury was work related.
127Dr McColl responded to Question 4 by stating that because there had been no recent consultation, she was not in a position to say whether the plaintiff would need ongoing therapy. In response to Questions 5 and 6, Dr McColl gave the same answer: “consultation information not current enough to comment.”[155]
[155] Exhibit L
The Plaintiff’s medico-legal reports
Associate Professor Love, orthopaedic surgeon[156]
Associate Professor Love’s first report, dated 24 October 2018[157]
[156] Exhibits M and N
[157] Exhibit M
128Associate Professor Love saw the plaintiff on 24 October 2018. He had to hand:
· “Medical report and records of the general practitioner, Dr Cleopas Sahhar;
· Medical report and records of the chiropractor, Dr Heather McColl;
· Medical report and records of the physiotherapist, Mr Scott Lindsay; and
· Independent Medical Examination by Mr Peter Grossberg, general surgeon, dated 22 October 2014.”[158]
[158] Exhibit M, page 3
129Associate Professor Love provided a history of the plaintiff’s back injury based on the consultation and on the reports and records of Dr Sahhar, Dr McColl, Mr Lindsay and Mr Grossberg:
“Essentially, [the plaintiff] has backache and he attributes the backache to the demands of his employment when working for … [the defendant], a retirement village in Warragul.
He is now 69 years of age but commenced working for [the defendant] at 53 years of age. He said for most of that employment time, he was the sole Maintenance Officer and his work was demanding in terms of the requirements to lift and move beds and other equipment, as well as to engage in building maintenance, which included painting and gutter cleaning.
He stated many of the beds that he had to move were of considerable weight and sometimes the weight was so great that they were unable to be lifted but rather had to be dragged along floors.
His wife handed me a long list of the tasks that he was expected to perform and I suggested she hand that list to you.
He states that at certain times, because of the shortage of materials and assistance he would bring equipment from his home to perform the necessary tasks at work.
He said beds would need to be moved on a daily basis because when residents reached the end stages of life alternative bedding was required.
He believes the backache commenced in about 2009 although he cannot recall any specific incident.
He stated that often backache would be delayed by one or two days after engaging in heavy work-related tasks.
He expressed fear of being sacked if he complained. He frequently would arrive home in the evening, apply a hot water bottle to his back, and take Panadol.
He states that in early 2013, he was diagnosed as having prostate cancer and shortly thereafter in about August 2013 because of the heavy nature of his work, he developed hernias which required surgical repair. His restrictions were such that he was incapable of returning to work from that moment.
It appears that the prostate cancer has progressed and more recently, he has been diagnosed with a muscular dystrophy syndrome.”[159]
[159] Exhibit M, pages 1 and 2
130The plaintiff complained to Associate Professor Love of pain in the midline of the lumbar spine. He had no other back or significant leg pain, was not bothered by the hernias and he had recently developed epilepsy.[160] The plaintiff was being treated with hormones for prostate cancer, and was taking medication for epilepsy and Panadol for pain relief. He used a walking frame.
[160] Exhibit M, page 2
131The report notes a history that “[t]here is very little that … [the plaintiff] can do during the average day but he does manage to cope with personal care”.[161]
[161] Exhibit M, page 2
132Upon physical evaluation, Associate Professor Love recorded that the plaintiff was:
“… extremely sensitive to even light touch in the mid line of the lumbar spine and becomes quite unsteady on his feet when asked to unilaterally weight bear or walk on heels and toes.
He does however have power to stand on his heels and stand on his toes.
I was unable to detect any abnormal neurological sign in is lower limbs in terms of loss of power, sensory disturbance or reflex changes.
Motion of the lumbar spine was moderately restricted with flexion reaching 45 °, extension 10 ° and lateral flexion was 10 ° to each side.”[162]
[162] Exhibit M, pages 2 and 3
133Associate Professor Love initially only had one image of the plaintiff’s back, a CT scan of the lumbar spine dated 15 November 2011 and the accompanying report, which described lumbar spondylosis, bulging L3-4 and L4-5 discs, and spinal canal stenosis.[163]Other images subsequently provided to Associate Professor Love were over seven years old and revealed changes to the plaintiff’s lumbar spine consistent with his age. They showed nothing to indicate “significant pathology that would explain the cause of his back pain in their own right”.[164]
[163] Exhibit M, page 3
[164] Exhibit M, page 3
134Associate Professor Love was unable to provide a precise diagnosis of the current cause of the plaintiff’s back pain but observed that it could be assumed that it was caused by his advancing spondylosis or secondary tumours from the prostate cancer. Although he considered that further radiology was required to make a precise diagnosis, after taking account of the nature of the plaintiff’s work and the physical demands inherent in it, Associate Professor Love concluded that the plaintiff’s job as a maintenance worker would, in all probability, have aggravated any constitutional degenerative changes in a man beyond middle age.[165] Associate Professor Love opined that the plaintiff’s back pain was caused by “aggravation of constitutional spondylosis of the lumbar spine due to the nature of his work”.[166]
[165] Exhibit M, page 3
[166] Exhibit M, page 3
135In relation to the plaintiff’s prognosis, Associate Professor Love’s view was that the plaintiff was unlikely to improve over time; to the contrary, he thought the plaintiff’s condition would probably deteriorate.[167]
The Plaintiff’s submissions[266]
[257]Exhibit 11, Defendant’s written submissions, at paragraph [2]
[258]Exhibit 11, at paragraph [4]
[259]Exhibit 11, at paragraphs [5]-[6], [9]-[13]
[260]Exhibit 11, at paragraph [15]
[261]Exhibit 11, at paragraphs [6] and [14]
[262]Exhibit 11, at paragraph [7]
[263]Exhibit 11, at paragraph [8]
[264]Exhibit 11, at paragraph [16]
[265]Exhibit 11, at paragraphs [17], [18] and [19]
[266]Exhibit R, Plaintiff’s written submissions at paragraphs [2]-[21]
213In summary, Ms Ryan submitted that there is an underlying unity in the uncontroversial medical evidence which establishes the causal nexus between the nature of the plaintiff’s work with the defendant and his injury. The injury is compensable because it arose out of, or in the course of, or due to the nature of the plaintiff’s employment with the defendant. It is not to the point that there may be many overlapping causes of injury.
214Ms Ryan submitted that the plaintiff has made some contemporaneous complaints of compensable injury to his doctor, to his supervisor at work, and when he completed an entry in the register of injuries at work. In any event, his explanation for failing to complain every time he had symptoms associated with his lumbar spine is genuine. The failure to complain does not detract from the fact that his work with the defendant is responsible for his current condition.
215Ms Ryan rejected the defendant’s suggestion that the plaintiff’s treating general practitioner, Dr Sahhar, has become an advocate for the plaintiff’s cause. Ms Ryan commended Dr Sahhar as a credible witness who is best placed to express an opinion about the plaintiff’s lumbar spine condition and its causes. Moreover, Dr Sahhar’s opinion is largely supported by all other experts.
216Ms Ryan contended that the defendant’s criticism of Associate Professor Love is misplaced. She submitted that Associate Professor Love’s opinion was based soundly on all of the relevant facts, matters and circumstances and should be accepted by the Court. Of note, it was not in dispute that the plaintiff’s work with the defendant consisted of physically demanding work, and this was a critical fact upon which Associate Professor Love based his opinion.
217As to the contribution made by work with the defendant to the plaintiff’s current condition, Ms Ryan relied on the defendant’s expert, Mr Simm, who stated:
“I remain of the view that his back condition is therefore probably, in part, due to unresolved work-related aggravation of the constitutional degenerative lumbar spine pathology.”[267]
[267]Exhibit 4 – Emphasis added by Ms Ryan in exhibit R, at paragraph [21]
Analysis
218It is common ground that the plaintiff is not required to establish that work with the defendant was a significant contributing factor.[268] The plaintiff is not required to prove that the work with the defendant must have been the dominant contributing factor. There may be a number of factors all of which have made a material contribution to the injury.
[268]The parties provided written submissions to the Court, stating that s82(2C)(c) of the Act and authorities such as St Mary’s School v Askwith [2011] VSCA 90 and Zlateska v Consolidated Cleaning Services and Anor [2006] VSCA 141 had no application to the present case
219In assessing whether work with the defendant was a cause of the plaintiff’s injury, I have taken into account all of the matters referred to by counsel including (but not limited to):
(i) the unchallenged evidence regarding the physically demanding nature of the plaintiff’s work with the defendant;
(ii) the period of his employment, including the fact that the plaintiff did manual work outside his employment with the defendant, both with other employers and in a domestic capacity;
(iii) the objective medical evidence pertaining to the plaintiff’s lumbar spine condition;
(iv) the plaintiff’s explanation for failing to make contemporaneous complaint to his general practitioner about his work-related symptoms; and
(v) the fact that the defendant’s experts, in particular Mr Simm and Mr Grossberg, acknowledged the contribution made by the plaintiff’s work with the defendant to the aggravation of his current degenerative lumbar spine condition.
Conclusion
220I respectfully agree with Ms Ryan. It is immaterial that the contribution made by the plaintiff’s work with the defendant to the plaintiff’s injury may not be the only cause. The preponderance of the medical evidence accepts that due to the physically demanding nature of the plaintiff’s work with the defendant, the plaintiff’s underlying degenerative lumbar spine condition has been aggravated.
221I accept the plaintiff’s submissions. I am satisfied that the plaintiff has suffered a compensable injury that arose in the course of his employment due to the nature of his work with the defendant. The element of causation has been established.
(2)Have the consequences of the Plaintiff’s compensable injury been disentangled sufficiently from his various non-compensable medical conditions?
The Defendant’s submissions[269]
[269]Exhibit 11, at paragraphs [3], [21]-[27]
222Mr Dunstan submitted that in order to make a proper assessment as to whether the compensable injury satisfies the “at least very considerable” test, the Court must first determine which, if any, consequences flow from it. He added that the plaintiff must disentangle the consequences that flow from any other injuries, impairments or medical conditions from which the plaintiff suffers as at the date of hearing.
223Mr Dunstan referred to the many conditions from which the plaintiff suffered as at the date of hearing and suggested that the plaintiff had failed to disentangle their consequences from the consequences of the compensable injury. He emphasised that it was common ground that the plaintiff had complained of back pain after engaging in activities outside of the workplace, such as when he laid the wooden floor and when he was digging in the garden. He contended that no effort had been made by the plaintiff to tease out the consequences flowing from these activities although they had been serious enough to warrant medical attention.
224Mr Dunstan submitted:
“23.… In relation to the plaintiff’s non work-related back injury the defendant relies on the medical reports of Mr Rodney Simm. In particular, the defendant refers the Court to this passage from Mr Simms’s second report (Exhibit 3) at page 6,
‘I concluded that he probably has symptomatic multilevel degenerative pathology in the lumbar spine. The degenerative pathology is constitutional. The clinical and pathological course of that degenerative pathology has been influenced by the ageing process and by physically demanding activities, which were associated with back pain, both inside and outside the workplace. The main contributing factors to his current condition are constitutional and age-related. The heavy physical nature of his work, which at times was painful, has probably led to the onset of higher levels of lumbar back pain and leg symptoms than would have occurred if he had worked in a lighter occupation. Considering he has had severe exacerbations of pain from the underlying degenerative pathology undertaking physical activities outside the workplace, indicates that it was probably inevitable that the degenerative lumbar pathology would cause significant problems in later life for this man.’”[270]
[270]Exhibit 11, at paragraph [23]
225I consider that in the passage cited above, Mr Simm is addressing the question of causation. He makes two distinct points about the plaintiff’s physical work, both in the course of his employment and outside it. First, in respect of the work for the defendant, Mr Simm acknowledges that “[t]he heavy physical nature of his work, which at times was painful, has probably led to the onset of higher levels of lumbar back pain and leg symptoms than would have occurred if he had worked in a lighter occupation”. I take this to mean that Mr Simm concedes that it was the plaintiff’s work with the defendant that has increased the levels of lumbar back pain and leg symptoms. More simply, work has aggravated the plaintiff’s condition. Second, the reference to the “exacerbations” (as opposed to aggravation) of pain from the underlying pathology experienced from non-work-related physical activities addresses a different point, namely, whether, in any event, the plaintiff would have ended up later in life in the same position.
226Mr Dunstan identified the consequences of the various illnesses, injuries and medical conditions suffered by the plaintiff as at the date of hearing:
·“The plaintiff resigned his employment with the defendant primarily because of his prostate cancer, his epilepsy and his treatment for his hernias (see Exhibit P page p 108-109, Exhibit 8, T59.2-3),
·The plaintiff suffers left foot drop because of his muscular dystrophy (T25.13-14),
·The plaintiff has problems with his walking capacity and his balance because of his epilepsy (T.29.28-30),
·The plaintiff uses a walker primarily because of his epilepsy (T30.11-12),
·The plaintiff cannot use ladders primarily because of his epilepsy (T30.22-24),
·The plaintiff has problems with climbing stairs primarily because of his epilepsy (T.59.15-18),
·The plaintiff had to give up driving a car in 2018 because of his epilepsy (T30.25-31, T31.14-16),
·The plaintiff could no longer ride a bike because of his epilepsy ([T]59.29-31).”[271]
[271] Exhibit 11, at paragraph [24]
The Plaintiff’s submissions[272]
[272]Exhibit R, at paragraphs [25]-[30]
227Ms Ryan submitted that the evidence before the Court was sufficient to enable the consequences of the compensable injury to be disentangled from those that flow from the plaintiff’s other medical conditions.
228Ms Ryan submitted:
“26.… The consequences solely referable to the Plaintiff’s lumbar spine condition are readily identifiable and are as follow:
(a)Almost constant back pain that worsens with physical activity that has required daily Panadol Osteo tablets, hot water bags and hot showers (Exhibits B and C) and since June 2020 has required 30mg of Norspan;[273]
(b)The lower back pain varies in intensity from 4 out of 10 to 8 or 9 out of 10 (Exhibit C);
(c)Sitting tolerance limited to 30 minutes (Exhibit C);
(d)Standing tolerance of 5-10 minutes (Exhibit C);
(e)Inability to lift heavy weights, bend and twist (Exhibit C);
(f)ability to garden is restricted.
27. The Plaintiff conceded that he can no longer climb ladders (T30.21-24) or ride a bike as a result of his epilepsy (T59.28-31). The Plaintiff does not contend, therefore, that his inability to climb ladders or ride a bike is a consequence of the lumbar spine impairment.”[274]
[273] Exhibit 7, DCB 93
[274]Exhibit R, at paragraphs [26]-[27]
229Ms Ryan identified the overlapping consequences flowing from the plaintiff’s epilepsy and the compensable injury:
“28. …
(a)requirement for use of a walker and walking stick which, according to the Plaintiff, is due ‘to both my epilepsy and my back because sometimes using the walker takes the pressure off my spine so I find it good for doing both, my epilepsy and my back’.[275]
(b)the Plaintiff’s ability is climb stairs which is affected by both his epilepsy (due to balance issues) and his back. He gave evidence of a recent occasion on which he started walking up some steps and his back started aching so he walked back down again: T61.9-10.
29. The consequences referred to in 28 above are properly referable to the lumbar spine injury. The fact that the Plaintiff’s epilepsy also causes the consequence does not disentitle the Plaintiff from relying on those matters in this application, so long as he satisfies the Court that they are consequences of the lumbar spine injury. A plaintiff does not have to prove that the subject injury is the sole cause of the consequence … .”[276]
[275] T29, L29-31 – T30, L-2
[276]Exhibit R, at paragraphs [28]-[29]
230Ms Ryan noted that both the plaintiff’s compensable injury and his epilepsy had impacted adversely on his recent holiday to Europe where the activities in which he could engage were restricted.
231In terms of pain and suffering arising from the compensable injury, Ms Ryan drew attention to the medical evidence:
“31.The medical evidence supports a finding that the Plaintiff’s lumbar spine condition causes him chronic lumbar spine pain with consequent restrictions. In his most recent report Dr Sahhar opines that the lumbar spine condition is chronic and not expected to improve. The Plaintiff has had previous cortisone injections to the spine with little benefit and is on morphine for pain: Exhibit J. Mr Simm opines that the Plaintiff has ‘chronic mechanical low back pain with intermittent referred symptoms into the left lower limb’. (Exhibit 4). Although Mr Simm questions whether Dr Sahhar’s prescription of Norspan for the lumbar condition is appropriate, he does not raise issue with the genuineness of the Plaintiff’s complaints of lumbar spine pain. Similarly, Mr Doig accepts that the Plaintiff ‘continues to suffer from pain and restrictions’, opining that his clinical presentation is consistent with the diagnosis: Exhibit Q. A/P Love was of the view that the Plaintiff suffers from ‘severe lower back pain’ with a poor prognosis: Exhibit M.”[277]
[277]Exhibit R, at paragraph [31]
Analysis
232With respect, I agree with Ms Ryan. So far as was necessary, the plaintiff has disentangled sufficiently the consequences of the compensable injury. I adopt the list of consequences that Ms Ryan identified. I also note that Mr Dunstan was able to disentangle the consequences of the compensable injury, as is apparent from his cross-examination and from the list he included at paragraph 24 of his written submissions, cited above.
233There is no clear evidence to say that the plaintiff’s prostate cancer is responsible for the plaintiff’s lower back pain. Although it was raised initially as a possibility by Associate Professor Love and also by Mr Simm that the cancer might be contributing to the plaintiff’s lower back pain, both Mr Simm and Associate Professor Love also acknowledged that no such medical diagnosis has been made.[278] Moreover, in his second report, Associate Professor Love noted that a bone scan reported on 1 July 2020 that there was no evidence of osteoblastic bony metastasis that may relate to the plaintiff’s prostate cancer.[279] I consider the suggestion that the plaintiff’s prostate cancer is responsible for his lower back pain stands as no more than an untested hypothesis.
[278] Exhibit 4, page 5; Exhibit M, page 3
[279] Exhibit N, page 2
234There is no evidence that the plaintiff’s epilepsy contributes to the plaintiff’s back pain. It causes him dizziness and limits his capacity to walk unaided and his ability to drive a car. His ability to climb stairs has also been impacted by both conditions, as has his ability to gain the full benefit of a holiday.
235Regarding the plaintiff’s resignation from work, I am satisfied that a number of factors combined to prompt his decision. These factors included the difficulties flowing from his cancer surgery, the problematic relationship he had with his superior, Craig, his lower back pain, and the fact that the restrictions imposed by his doctor on his work duties were not respected. The loss of work has been upsetting for the plaintiff.
236In addition to the matters to which Ms Ryan referred, the plaintiff has also lost the ability to sing in his church choir, an activity he previously enjoyed. This loss is a consequence of his inability to stand for prolonged periods.
Conclusion
237The plaintiff has identified the consequences of the compensable injury with sufficient clarity to enable an assessment to be made as to whether those consequences satisfy the definition of “serious injury”.
(3)Do the pain and suffering consequences of the compensable injury satisfy the definition of “serious injury”?
238I have earlier identified the consequences that flow from the plaintiff’s compensable injury.
The Defendant’s submissions
239Mr Dunstan submits that while these consequences cannot be dismissed as trivial, they fall short of satisfying the “at least very considerable test”.
240In respect of the level of pain that the plaintiff suffers and the medication he takes for it, Mr Dunstan submits:
“27.The defendant notes that up until very recently the plaintiff was only taking Panadol Osteo for his back pain (Exhibit C, paragraph 8), he has not received any treatment for his back for many years (Exhibit B, paragraph 54 and Exhibit C, paragraph 6) and he has not had any physiotherapy treatment since September 2014 (T51.21). In relation to the Plaintiff’s current prescription of Norspan (T25.6), the Defendant notes that this was not prescribed for the plaintiff until nearly 7 years after he had ceased his employment with the defendant and relies on what Mr Simm says about this prescription in his most recent report dated 17 July 2020 (Exhibit 4). Mr Simm notes at page 5 that,
‘His pain levels are extremely high and his doctor is now prescribing Norspan, which is a very strong opioid analgesic. This is in stark contrast to his relatively low analgesic requirements when I first examined him in February 2019, when he was taking Panadol intermittently. The severity of his pain is unusual for moderate degenerative lumbar spine pathology and suggests some pain amplification due to the development of a chronic pain condition. (emphasis added)’
At page 6 of the same report he states,
‘It is most unusual to prescribe Norspan for symptoms associated with degenerative lumbar pathology. This pathology is extremely common across the general population and the pain from this pathology is usually controlled with non-opioid analgesic medication and measures. Norspan is an opioid analgesic medication, which is indicated for intractable pain from malignant disease, but is now used more frequently for the treatment of chronic pain conditions. (emphasis added)’
In relation to the use of this medication the defendant doesn’t accept that this is a consequence of his work-related back injury as opposed to the progression of his underlying degenerative changes. Mr Simm at page 6 of his third report dated 16.7.20 (Exhibit 4) states
‘This man has had increasingly sever pain in the years since ceasing work and this deterioration is a reflection of the progressive nature of the age-related degenerative lumbar spine pathology, which becomes increasingly problematic with increasing age.’[280]
The defendant also note that in relation to his use of medication he said in cross examination that he was not a ‘complainer’ and he did not like taking pain killers for his back pain (T35.18-25), however, in relation to his other health problems that he takes medications, including medication for his neuropathic pain including Topamax, Propranolol, Carbamazepine and the regular injections for his prostate cancer (Exhibit 4, page 3 and Exhibit B, paragraph 29).”
[280]Exhibit 11, at paragraph [27]
241Addressing the question of whether the consequences of the compensable injury can be regarded as satisfying the statutory definition, Mr Dunstan referred the Court to the recent decision of TTB SMS Pty Ltd v Reading.[281]In that case, the worker had suffered an injury to his hand. The Court of Appeal observed:
“[31] …
·Whilst [the] impairments [identified] are certainly not trivial, in our view, they cannot be fairly described as ‘at least very considerable’. The evaluation required of the trial judge, and this Court, involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work.”[282]
[281][2020] VSCA 203
[282]TTB SMS Pty Ltd v Reading (ibid) at paragraph [31]
242Mr Dunstan submitted:
“28.… The defendant accepts that the plaintiff’s back injury, an aggravation of pre-existing degenerative changes of the lumbar spine, is certainly “not trivial” but it does not accept that the Court should find that the impairment of the lumbar spine, once the consequences of the plaintiff’s non work-related back injury and other health problems or conditions have been ‘disentangled’ (if this is realistically possible), can be described as ‘at least very considerable’. Therefore, the plaintiff’s application should fail.”
The Plaintiff’s submissions[283]
[283]Exhibit R, at paragraphs [24], and [32]-[33]
243Ms Ryan submitted that when comparing the state of the plaintiff’s underlying degenerative lumbar spine condition before he commenced work with his condition thereafter, it is clear that the level of aggravation of the condition satisfies the statutory test: before commencing work with the defendant the plaintiff’s lumbar spine condition was asymptomatic; by the time he resigned, that condition had been rendered symptomatic with all the associated consequences referred to.
244Ms Ryan submitted that the severe level of pain that the plaintiff experiences on a constant basis as a result of his lower back pain is chronic and cannot be cured. He has undergone cortisone injections, the first of which provided only temporary relief, and the second of which provided no relief. The plaintiff takes medication on a daily basis to alleviate his pain. There is no surgery or other medical treatment that can be offered to improve the plaintiff’s suffering. To the contrary, his prognosis is poor.
245Ms Ryan emphasised that the defendant did not challenge the evidence about the consequences flowing from the compensable injury, and that in these circumstances, the Court should be satisfied that the statutory test has been satisfied. As Ms Ryan put it:
“33.The weight to be attached to the Plaintiff’s account will depend upon an assessment of the Plaintiff’s credibility: Haden at [12]. It is submitted that the Plaintiff was a witness of credit who made appropriate concessions under cross-examination. His complaints of ongoing pain and restriction are accepted by the medical experts whose opinions are before the Court. It is submitted that the Court ought to find that the consequences set out in 26 and 28 [of the plaintiff’s written submissions] above are referrable to the lumbar spine injury. The conclusion that such consequences are ‘at least very considerable’ is inescapable.”[284]
[284]Exhibit R, at paragraph [33]
Analysis
246The present case involves aggravation of the plaintiff’s underlying degenerative lumbar spine condition. I have made a comparison of the plaintiff’s “before” and “after” condition. I respectfully agree with Ms Ryan that as a result of the nature of the plaintiff’s work with the defendant and the physically demanding duties inherent in it, the plaintiff’s previously asymptomatic underlying degenerative condition of the lumbar spine has been rendered symptomatic.
247It must be noted that the time for assessment is the hearing date. Although the plaintiff’s pain levels have increased over time, requiring more potent painkillers, that does not mean that the consequences should be disregarded. I respectfully agree with Ms Ryan that as at the date of assessment, the high degree of pain and suffering consequence due to the loss or impairment of the plaintiff’s identified body function enable the Court to be satisfied, on the balance of probabilities, that when judged by comparison with other cases in the range of possible impairments or losses of a body function, the plaintiff’s impairment or loss of a body function is fairly described as being “more than significant or marked”, and as being “at least very considerable”.
248I have weighed all of the consequences of the plaintiff’s impairment or loss of a body function as identified earlier.
249I should note that in respect of the plaintiff’s loss of the ability to sing in his church choir, this evidence was not challenged; however, the evidence did not touch upon whether the plaintiff would be able to participate while seated, either in a wheelchair or on some other sort of chair. If I were to omit counting this loss as a consequence of the compensable injury, I would nevertheless be satisfied that the pain and suffering consequence of the plaintiff’s impairment or loss of a body function is fairly described as being “more than significant or marked”, and as being “at least very considerable”.
Conclusion
250The plaintiff has satisfied the Court that the statutory definition of “serious injury” has been established.
Final conclusions and proposed orders
251On the balance of probabilities, the Court finds:
(i) The plaintiff has suffered a loss or impairment of the lumbar spine, constituted by an aggravation of an underlying degenerative condition;
(ii) The loss or impairment arose in the course of employment with the defendant due to the nature of the employment and the physically demanding duties inherent in it;
(iii) The impairment or loss of body function is permanent. The prognosis is poor, with no prospect of treatment to achieve improvement. The evidence does not suggest that physical therapy, surgery, or any other form of treatment will improve the situation;
(iv) The loss or impairment has pain and suffering consequences which, when judged by comparison with other cases in the range of possible impairments or loss of a body function, may be fairly described, at the date of hearing, as being at least “very considerable” and more than “significant” or “marked”.
252In all the circumstances, the plaintiff is entitled to be granted leave to bring common law proceedings to recover pain and suffering damages as a result of the injury sustained during the course of his employment with the defendant.
253I shall hear the parties on the question of costs.
- - -
0
21
0