Morrow v Asteria Services Inc
[2016] VCC 1465
•22 September 2016
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05762
| WAYNE FRANCIS MORROW | Plaintiff |
| v | |
| ASTERIA SERVICES INC (ABN 18 908 141 137) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 19, 20 and 21 September 2016 | |
DATE OF JUDGMENT: | 22 September 2016 | |
CASE MAY BE CITED AS: | Morrow v Asteria Services Inc & Anor | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1465 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – low back impairment – Adjustment Disorder with Anxiety and Depression – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; Acir v Frosster Pty Ltd [2009] VSC 454; Richter v Driscoll [2015] VSC 457; [2016] VSCA 142
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr J H Mighell QC with Mr D J N Purcell | Arnold Dallas & McPherson |
| For the Defendants | Mr W R Middleton QC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
1 This fifty-five-year-old man was working as a support worker for the disabled. His duties involved some aspects of personal care. He was injured fourteen years ago when helping a disabled cerebral palsy client into a mini-bus on 17 September 2002. She started to fall. Instinctively he tried to save her. He said he took her weight and felt “three pops go” in his back.
2 This application for leave is both under paragraph (a) for a low back impairment, as well as paragraph (c) for an Adjustment Disorder with Anxiety and Depression.
3 The issue articulated by the defendants as to the paragraph (a) application, was that while the back injury was an admitted compensable injury, the plaintiff had failed to disentangle.[1] In other words, the plaintiff has failed to establish the impairment of his back had a substantial permanent organic cause.
[1]Transcript (“T”) 28 – 29
4 As to paragraph (c), the defendants said the evidence did not prove a severe mental or behavioural disorder that was permanent.
5 The difficulties faced by a court in making an assessment that is replete with various medical issues, both physical and mental, when no doctor has been called to explain an opinion, have been well documented. This case is a particularly good example of the onerous task of assessing written reports, radiology and clinical notes without hearing from their authors.
6 Just to indicate the extent of the problem in this case, one doctor was sent no less than sixty medical reports and enclosures.[2] It is also rare in this jurisdiction to have to evaluate an injury suffered now more than fourteen years ago. Many years of treatment for both the physical injury to his back and mental or psychological reaction are covered in the materials embracing that fourteen years. Different doctors saw the plaintiff at different times, with different treatment objectives in mind and with different conditions to treat.
[2]Plaintiff’s Court Book (“PCB”) 66 – 68
7 Understandably, the focus of their reports and notes tended to be on a particular problem at a particular time. But that does not necessarily lead to any probable conclusion that other problems were not troubling the plaintiff at that particular time. They were just not the main focus in his mind or the mind of the practitioner he was with.
8 The plaintiff himself, when attending different doctors with different specialities, was probably focused in a particular direction linked to the particular speciality of the expert he was then seeing. If it was a psychiatrist or psychologist at that particular attendance, then the probabilities are that would have been the major focus in the plaintiff’s mind as well as that of the practitioner.
9 This understandably leads, at times, to matters being less than clear when the Court is just left with a written report of that practitioner who is dealing with that particular problem at that particular time. In my opinion, this means that caution should be adopted before reaching any firm conclusions about an absence of, or limited comment on, another injury. Just because a general practitioner for example was focusing on the plaintiff’s particular injury or set of symptoms which is at the forefront of the complaints at that particular time, it does not necessarily mean undue weight should be given to that particular opinion to the exclusion of the plaintiff’s health or on other matters.
10 What also has to be borne in mind in this application is that over such a long period of time, there can be a variation in the level of both physical and mental health symptoms. The plaintiff said this himself, as did many doctors, how the back pain was constant and chronic but could vary in severity.
11 Similarly, in terms of his psychological condition, it was not surprising that different doctors point to such variations and fluctuations in that arena also – see Dr A Emmanuel;[3] Dr H Georgeous;[4] Mr J Honey[5] and Dr G D'Ortenzio.[6]
[3]PCB 54
[4]PCB 60
[5]PCB 58
[6]PCB 43
12 The treating psychiatrist, Dr Emmanuel, for example was relied on by the defendants in terms of minimising the depression when that doctor said a little over two years ago that the plaintiff was “travelling reasonably well at the moment”.[7] What that doctor went on to say was that such a depressive illness had a relapsing nature about it, and “it will be difficult to predict whether he remained well and for how long”.[8]
[7]PCB 54
[8]PCB 54
13 Another example was from the treating psychiatrist, Dr G D’Ortenzio. That doctor reported how, with respect to symptoms, there was something of a waxing and waning over time.[9] On another occasion the same doctor probably summed it up even better when he said, in the context of a psychiatric treatment referral:
“Certainly up till 2005 his back pain was a significant factor. Subsequent to that, it was not a major factor in his presentation to myself. However, it was not a focus of our consultations, focusing rather on his ongoing anxiety and depressive symptoms.”[10]
[9]PCB 43
[10]Defendant’s Court Book (“DCB”) 19 – 20
14 This understandable difference and change in focus by both the patient and by the doctors within the parameters of their own speciality is a matter to be kept in mind in dealing with the defendants’ submission that the plaintiff has failed to disentangle. I reject the defendants’ submission that there is a need to disentangle after considering the evidence with those qualifications that I have just indicated. This is particularly so in relation to such an old problem treated over many years by so many practitioners.
15 The conclusion I have reached after reviewing the copious evidence in this case is that there are a number of findings that, on the probabilities, are established.
16 Firstly, the plaintiff has suffered ongoing constant low back pain, sometimes extending into his right leg which has now become chronic.
17 Secondly, in time there has been a mental reaction to this chronic physical problem that understandably at various times has been the centre of his focus, particularly when following up referrals he has had for psychiatric treatment.
18 Thirdly, his substantially organically-based low back pain which he still suffers, has been the primary condition that has led to an understandable secondary psychiatric condition.
19 Fourthly, he suffers from both at the present time but that does not, of itself, require a disentangling exercise to be undertaken on this evidence.
20 Fifthly, while both conditions of themselves may well now preclude him from any suitable employment, my conclusion about the primary organic low back impairment is that, on its own, it permanently causes a 40 per cent or more loss of earning capacity.
21 For the reasons I have referred to in judging consequences of some fourteen years’ antiquity, I am most helped by the more recent opinions. It is trite, of course, that the legislative scheme requires in every case to judge consequences now, in 2016. Much more assistance is gained from contemporaneous reports than from those years old. When I have not heard any doctor called to explain opinions, the more recent written material is even more important in assessing such old injuries.
22 The plaintiff went to a general practitioner, Dr M Ali, within a few days and was given painkillers and anti-inflammatory medication. This was the start of a course involving years of ingestion of medication that has continued right up to the present day for back pain.
23 The plaintiff did not want to stop work, so he did not report the incident. I accept his explanation that he was a casual employee and was fearful of losing his job. “I just wanted to work. For a long time I put the pain aside.”[11] I also accept he was fearful of putting in a WorkCover claim form after something his CEO had said about WorkCover.
[11]T48
24 Painkillers played up with his stomach, such that he was hospitalised for side effects in May 2003, that had developed into stomach ulcers. This was relatively early on in a significant conservative treatment journey involving a number of general practitioners, specialist referrals, many forms of medication and investigations, as well as chiropractic treatment.
25 He went to another general practitioner, Dr D De Villiers, who ordered scans and injection treatment. He was referred to St John of God Hospital for treatment. A Dr Buirski in Ballarat administered nerve block injections. He was also referred to a neurosurgeon, Mr B O’Brien, in Melbourne. He was also referred for specialist psychiatric treatment to a Dr D’Ortenzio. A referral to a pain specialist, Dr Verrills, at the Metro Spinal Clinic had also been pursued. Further injection treatment took place.
26 After a time, the available work hours open to the plaintiff in his job with the first defendant decreased. He left that work when he found a better job. It was performing a similar role with DHS. Initially he worked at the Sandhurst Centre in Bendigo, and then in Kyneton.
27 He finally went off work in December 2009, due to struggling with his back, depression, and the side effects of medication.[12] He confirmed in oral evidence it was because of his depression, but in a context of being “very very run down” due to being “very very sore”.[13]
[12]PCB 22
[13]T60
28 I have already said I accept the depression was secondary and caused by his main and original problem, organic back pain.
29 Treatment continued and he was referred to another neurosurgeon, Professor P Teddy, in 2015. He ordered and administered further nerve block injections. The plaintiff also had chiropractic treatment from Dr McLindon. His radiological investigations, as part of his ongoing treatment, have included multiple scans and tests of virtually every type seen in a spinal case.
30 For his psychiatric condition, he was referred to another psychiatrist, Dr A Emmanuel, in 2015, as well as to a psychologist, Mr J Honey.[14] He then went to another general practitioner, Dr H Georgeous.
[14]PCB 21 – 22
31 Current treatment for his back includes up to eight over-the-counter Panamax per day, as well as the anti-inflammatory, Mobic, Tramadol, a narcotic painkiller, and Lyrica, for neuropathic pain. He also takes prescription medication for the psychiatric condition.
32 Further specialist options were explored in order to address his organic back pain. He was referred to another pain specialist, Dr R Sullivan. He practises in Melbourne at the Brain, Spine and Pain Centre.[15] This doctor administered radiofrequency denervation. It did not really help the pain.
[15]PCB 52
33 All of this very extensive treatment history has been paid for by the insurer due to this admitted compensable back injury.
34 The direction of such treatment has been very much focused on an organic back complaint. I accept the back pain is chronic. The level of pain can vary. At times it is so severe he has to lie down and can really do very little else.[16]
[16]PCB 23
35 I have already discussed the extensive ongoing need for his current medication directed to physical pain.
36 The point about the widespread conservative treatment suggestions this plaintiff has followed on the advice of his doctors, is that they are very much focused on a physical injury. This has been the case now for many years. His back pain has been such that he has not been able to return to work as a support worker, or in social work involving, as it does, care duties of a physical nature.
37 His work experience has largely been in hands-on type jobs. Through an employment agency he did a computer course. I accept he has only limited computer skills, in spite of undertaking the course. It went “in one ear and out the other”.[17]
[17]T91
38 He does not have any real skills or experience for office work. He failed Year 12 at school. He went to an open day at La Trobe University to enquire about a Bachelor Degree in Psychology, but on the evidence, and after hearing from him, I am satisfied he does not have any real tertiary education potential.
39 I accept his up-to-date evidence that he still suffers persistent ongoing lower back pain. His pain is worsened by sitting, standing, bending or lifting.[18]
[18]PCB 24
40 While the severity of such pain still varies, as it has done over the years, at times he is still bedridden for days by flare ups, and that occurred very recently. This level of pain, in my opinion, is very relevant to any argument about a capacity for pain employment.
41 The only witness called was the plaintiff. It was a great advantage to be able to see and hear him in the witness box over two days. I found no evidence of exaggeration or any lack of genuineness. I accept he was candid, forthright, and above all, reliable. There was not a doctor who found him otherwise.
42 I accept he is a somewhat limited man, but generally one who is motivated to work. His work record was solid. He worked on for seven years, putting up with constant back pain by taking daily medication. In my view, that is a man who is motivated to work.
43 Unfortunately, he was worn down by fourteen years of chronically, physically-based spinal pain, that has not responded to a litany of treatment options and medical opinions. Understandably over time, this has added a mental dimension to his organic impairment. He is now left with both.
44 Looking at all the evidence in the end, no disentangling is required. His back impairment is substantially physical in origin. It remains physically incapacitating, and will be so for the foreseeable future.
45 The plaintiff candidly said he has not seriously looked for work since 2009. He admitted he had lost confidence in regards to work and had not applied for any jobs. His loss of confidence was in the context of constant back pain, and treatment that he undertook that proved in vain. That back pain is “an issue every day”, and affects his confidence, and he has become more confused trying to live with chronic back pain.[19]
[19]T64 and 67
46 I accept back impairment is the main problem in regards to his inability to work.[20]
[20]T65
47 There have been some other health issues, including his neck, dental problems, wrist, hernia and foot problems. But the back pain is the main impediment to him being able to work.[21]
[21]T65
48 He made a number of admissions against interest in that regard. On the probabilities these other health issues do not limit his capacity for work, and the large body of medical evidence in this case is relatively silent about them having any real relevance to work capacity.
49 I accept he is having trouble every day coping with chronic back pain and with depression. He honestly said in court now it was both his emotional state and his back that prevented him from working.
50 There may well be two causes now but I am satisfied one of them is the primary one and it is the organic back impairment. On its own, it is a permanent impediment to work in my view. It has been added to in time by his frustration, leading to the mental condition which has impacted on his confidence and motivation.
51 He was candid in admitting that certain treatment had led to some relief of leg pain. He was also forthright about his father and brother suffering from depression in the past and his own use of cannabis at one stage.
52 I am satisfied the primary cause of why he left work was chronic back pain. Another reason was the lack of confidence and depression that back pain led to. Given the extent of the pain, I accept it is reasonable he has not applied for any work in recent years. Such chronic back pain in effect precludes him from any alternative suitable employment when the evidence is looked at realistically.
53 Turning to the medical evidence, all the radiology has been tendered. In particular the MRI scan of 2004 showed pathology that would explain the right leg pain was organically caused.[22] Pathology was confirmed in a lumbar CT scan in 2014 that recorded significant disc abnormalities at the lower two levels.[23]
[22]PCB 124
[23]PCB 130
54 The more up-to-date MRI scan in December 2014 reported:
“L4-5 posterior disc protrusion causing asymmetric mass effect on the descending right L5 root.”[24]
[24]OCB 132
55 I am satisfied on the probabilities that the pathology supports my finding that low back pain as well as right leg pain the plaintiff has suffered are substantially organically based. That pain is a consequence of the back impairment alone that could be described as “at least very considerable”.
56 It is unnecessary to refer in any detail to the authorities that point to constant pain with an ongoing need for medication being indicative of a “serious injury” consequence.[25] Such is the case here with Mr Morrow.
[25]See Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46, and others
57 I accept that low back pain, physically based, is a consequence that discharges the onus of establishing a paragraph (a) “serious injury” in terms of pain and suffering consequences.
58 The major issue in this case is really the question of whether or not the onus has been discharged with respect to loss of earning capacity. Such pain also impacts on that part of the application and I will discuss it further.
59 A great deal of medical reports were included in the respective court book indexes. There were 29 in the PCB index and 24 in the DCB, and others were tendered after the case started. In addition, radiology reports numbered ten. Thankfully, counsel edited out a lot of earlier reports and sensibly limited the ultimate tenders, exhibit A and exhibit 1.
60 Before turning initially to the treaters’ reports, it seems that there was some gap in treatment around 2007 to 2009. I accept the plaintiff when he said he stopped going to any doctors about that time as he was “pretty fed up with everything”.[26] “There did not seem to be any solution,” he added, and I accept him when he said he just kept working, keeping strong, and taking painkillers, over-the-counter, in that period.
[26]T54
61 That gap in treatment did not affect my ultimate conclusion about this admitted compensable back injury that is ongoing and is still being treated after all these years.
62 The general practitioner, Dr De Villiers, described in detail the physical back in jury.[27] At times his materials indicate the focus was more on the psychiatric than the physical but that is not surprising as over years of attendances a particular focus by the patient and by a doctor would probably vary.
[27]PCB 34 – 35; DCB 1 – 7
63 He diagnosed lower back sprain and noted disc degenerative changes at L3-4 and more advanced at L5. The injury was stable with no apparent change over some years. He also noted that his patient further suffers from depression and anxiety. This comment comes after the doctor has clearly diagnosed organic back pain.
64 In my opinion, a mental reaction of this type after such a long and frustrating treatment regime that has not rectified the back disability is understandable. I accept it is now part of the overall picture. I also accept it has led him to losing some motivation in recent years. Nevertheless, it is an organic back impairment, now added to by a mental reaction.
65 In answer to a questionnaire, the general practitioner further described a physical back pain as:
“Pain from the lower back caused by L3-4 facet joint arthritis and L5-S1 and L4-5 disc degeneration.”[28]
[28]DCB 5
66 As to work, this doctor was critical of the plaintiff’s motivation.[29] Nevertheless, one of his last comments two years ago was that he –
“… should not be exposed to lifting weights more than 5 kilograms, should not bend or squat.”[30]
[29]DCB 1
[30]DCB 5
67 I take those comments as real physical restrictions on working capacity. They are not comments about motivation. The general practitioner obviously saw both physical and mental conditions were now relevant to work capacity. That is consistent with the weight of the evidence about the current situation.
68 The comment I just quoted from the general practitioner, however, is directed to the physical incapacity on its own. The doctor also said:
“His back would make physical work difficult to manage but he would have a capacity to return to work based on his back alone.”
69 He also went on to say “his back makes him fatigued” and that he “then develops pain”.[31]
[31]PCB 34
70 The doctor seemed to express some qualifications in a somewhat equivocal statement when he said:
“There are no hard physical findings relating to his back that would preclude a return to non-physical work.”[32]
[32]PCB 34
71 If work causes fatigue, which it usually does if one applies oneself, and fatigue causes pain, then the plaintiff’s back clearly limits his earning capacity as I read the doctor. I have not heard from him and I must do the best I can with the written word.
72 It remains that after his September 2014 report, which I have just quoted, this same general practitioner referred the plaintiff off in December 2014 to a neurosurgeon, Professor P Teddy. That was clearly for treatment directed to a physical impairment.
73 There was a late tender towards the close of the evidence of a single clinical note from this general practitioner on 13 July 2015.[33] Appellate authority has warned about the need to exercise caution in dealing with clinical notes of this type and according them too much weight. This note is one plucked out of years of clinical notes. It is brief. It can be read in something like 20 seconds. It cannot possibly, in my opinion, be anything like a full account of what was said between the doctor and patient in a clinical context.
[33]DCB 108
74 It refers briefly to WorkCover issues, the plaintiff not doing well, things not happening in his head, him being focused on being unwell, as well as referring to two professional experts assisting him with his mental difficulties. Such a wide ranging conversation cannot possibly be fully recorded in this brief note. The note was not put in any detail to the plaintiff and I have not heard from the doctor. Accordingly, I do not afford it much weight for those reasons.
75 What it does indicate is that the plaintiff was struggling generally with where he was going and that is consistent with his evidence that the duration of his symptoms had more or less got to a stage where his motivation had been diminished.
76 The treating neurosurgeon, Professor Teddy, saw the plaintiff in December 2014. He diagnosed –
“Low back pain that on the history … would appear to represent an exacerbation of symptoms relating to lumbar spondylosis, degenerative changes at L4 and L5-S1 disc with facet arthropathy.”[34]
[34]PCB 52
77 While the degree of symptoms would vary, it was a permanent back pain in the sense of the foreseeable future in his opinion. As to work, he said:
“His prospects of returning to the workforce seem remote, although physical/neurological examination would indicate no specific reason why he could not undertake work of a sedentary nature.”[35]
[35]PCB 52
78 This, of course, presupposes that Mr Morrow is otherwise suitable for work of a sedentary nature in terms of his age, work experience, education and skills. I do not accept that he is. Given the matters I must take into account, as set out in s5 of the Act, and the definition of “suitable employment”, and viewing residual capacity with the realities of the employment marketplace in mind, the probabilities are that he has no capacity for suitable employment.
79 The general practitioner, Dr Georgeous who took over general practice treatment only twelve months ago, diagnosed a clear organic cause of the back pain. He said only last month it was “chronic back pain due to the lumbar disc prolapse”.[36] Again, not surprisingly, he noted his patient had “… also developed mixed anxiety and depression secondary to his pain and disability”.[37] I accept this very up-to-date opinion as accurate.
[36]PCB 60
[37]PCB 60
80 As to work he said:
“Physically I believe that Wayne is unable to do any physical duties, especially handling or assisting disabled patients. He may be able to do some light office work that depends on his qualifications, experience and pain levels if he is required to sit for prolonged periods and that will need to be on a trial basis starting with four hours a day, about three days a week and reassess.”[38]
[38]PCB 60
81 I accept that opinion as a realistic and contemporaneous assessment of the plaintiff’s earning capacity due entirely to the organic chronic back pain. The general practitioner went on to add what is really obvious on the evidence that now anxiety and depression were also a major obstacle in terms of work. Added to these comments, the general practitioner said that the subsequent medical health condition had made the plaintiff “… feel overwhelmed and confused”.[39] I also accept that comment. It is consistent with my conclusion after hearing the plaintiff express those precise feelings and emotions.
[39]PCB 60
82 A worker overwhelmed and confused is likely to present at times as a man lacking in motivation, but the reason for that is the persistent low back condition that he has to endure and which, in the end, has got to him mentally. This current general practitioner’s views amount to the plaintiff having no more than a theoretical capacity for some light office work for which he is not suitable and even then it would only be on a trial basis. Viewed realistically, this is no capacity at all. Unfortunately for the plaintiff, his general practitioner also said “back injury and chronic pain has stabilised”.[40]
[40]PCB 60
83 The most recent treaters’ report includes a brief one from the pain specialist, Dr R Sullivan. Only last month he supported an application for a disability pension by speaking of “… the chronicity of his condition and being completely precluded from returning to the workforce in any meaningful capacity”.[41]
[41]PCB 52A
84 Without hearing from him, it is difficult to read much into this very short report except that he clearly saw no work capacity but he does not really disentangle in any way the physical and mental. He does refer to some medications that are directed to a physical impairment with an additional psychological overlay treated by Dr Honey, but it is really just speculation to make any other conclusion about Dr Sullivan’s opinion as to why his patient has no work capacity.
85 Turning to the medico-legal opinions with respect to the back injury, the more recent opinions include one from Dr Clayton Thomas, consultant in rehabilitation and pain medicine. He reported in April 2016. He reviewed a host of medical reports, attachments and radiology that must be almost the longest list I have seen sitting in this jurisdiction.[42] His opinion could not be clearer:
“Mr Morrow has chronic lumbar spine pain and I think the L5-S1 level is the problem here. The nature of his back problem is organic.”[43]
[42]PCB 65 – 68
[43]PCB 62
86 The prognosis was for pain going forward.
87 As to work, he thought there was some capacity but he put real limits on it:
“He needs to find back friendly work but he could work within restrictions of up to 20 hours per hour (sic). He can work in a position which involves lifting between the waist and chest height, 5kgs frequently, 10kgs infrequently. He needs to be in a position where he is not in one spot for any long periods of time. He needs to have the flexibility to be able to alter his posture as required. A sit/stand position would be ideal for him.”[44]
[44]PCB 63
88 When considering the matters that s5 dictates and bearing in mind the realities of the labour market, I accept the plaintiff has no real capacity for work on Dr Thomas’ report. I take Dr Thomas’ opinion when one looks at Mr Morrow’s age, work experience, education and lack of skills, as amounting to really no more than a theoretical capacity and even then, Dr Thomas has put real limits in terms of that capacity.
89 The last report the plaintiff tendered was from Mr P Moran, orthopaedic surgeon, who reported only last week. He reported:
“I found Mr Morrow to be open and frank about his condition with no evidence of exaggeration and no evidence of abnormal illness behaviour.”[45]
[45]PCB 81C
90 PCB 81C. That was how I found the plaintiff after hearing him and observing his demeanour in the witness box. The diagnosis was one of organic pathology. "There is on MRI scanning clear evidence of multi-level discogenic pathology with a more discrete prolapse at L4-5 consistent with his history of right-sided sciatica in the past. The aetiology of Mr Morrow's condition is essentially a traumatic aggravation of underlying constitutional disc degenerative change."
91 Mr Moran went further when discussing the plaintiff attempting to arrest the fall of the cerebral palsy client and said the mechanism of injury:
“… is certainly sufficient to provoke significant structural damage to the lower lumbar discs.”[46]
[46]PCB 81D
92 Predictably, Mr Moran also found a significant depressive mood disorder that I accept the plaintiff suffers from as a result of the work injury and the lower back pain it caused. I also accept Mr Moran’s well-reasoned analysis that it is:
“…secondary to his chronic spinal pain and diminished capacity for activities”.[47]
[47]PCB 81D
93 His most recent report is comprehensive, in my opinion, and easily understood. More to the point, it accurately described an organic chronic low back condition over many years that has led to a secondary mental illness which causes incapacity in its own right but also adds to the plaintiff’s physically caused incapacity. I also accept this surgeon when he considered:
“… his prognosis for recovery and for resumption of any form of employment to be poor.”[48]
[48]PCB 81D
94 A number of reports from experts engaged by the insurer and focusing on the back injury were tendered. Some were relied on by the plaintiff and some by the defendant.
95 In chronological order, Mr K Elsner, orthopaedic surgeon, saw the plaintiff over ten years ago, in early 2006. That is too long ago to assist me in judging consequences now but he clearly found an organic injury when he described:
“… aggravation of previously asymptomatic lumbar degenerative changes and probably contributed to his L5-S1 small disc protrusion.”[49]
[49]PCB 84
96 Even in those very early days he thought there may be a permanent impairment as a result of this back injury.[50] He was correct in that pessimism.
[50]PCB 85
97 In May 2014, Mr B Love, orthopaedic surgeon, diagnosed a lumbar disc disease principally at the L5-S1 level. He considered the plaintiff had chronic pain. He found there was no capacity for his normal pre-injury duties or hours. He had some capacity for other work but within limits:
“This man could engage in suitable modified or alternative duties but the duty would have to be tailored to his current impairment, with an inability to stand for long periods of time or work in a role that involved lifting or standing for long periods.”[51]
[51]PCB 96
98 Further on he described a work capacity as being extremely limited due to backache as well as a psychological impairment. So he was really combining the two, as I read his report. But I am satisfied that he was commenting in a context that supported the view that the chronic back pain was substantially organic in cause and had come first in time, before the psychological reaction.
99 The report from Mr T Gale, surgeon, was written in January 2015. He noted he did not have the radiology films but only the reports.[52] He seemed somewhat hesitant in regard to the precise pathology involved but said:
“As a result of a straining incident at work in September 2002, the worker may have suffered intervertebral disc injury in the low lumbar spine area. He did have some pain radiating down the right leg for a period of time but this resolved after some facet joint injections in 2004. Currently, the worker has ongoing low back pain.”[53]
[52]PCB 118
[53]PCB 118 – 119
100 Mr Gale was basically engaged to perform an AMA permanent percentage impairment assessment, which he did. He said: “The pathology is disc arthrosis”.[54] Such a percentage impairment obviously involved an organically-caused back injury. Not being required to specifically go beyond the AMA assessment required of him, he did not comment at length about work capacity.
[54]PCB 119
101 He did say however that:
“It is probable the worker’s low back condition will compromise to a variable degree his future … employment capabilities.”[55]
[55]PCB 119
102 He also said that the clinical presentation was consistent with primary and secondary effects of the workplace incident. From that, I infer he was talking about the primary organic back impairment, followed by the secondary psychological reaction.
103 The most up-to-date surgical opinion from people engaged by the defendants is from the surgeon, Mr P Battlay. He reported in June 2015. He diagnosed an organic cause of pain described as “discogenic mechanical back pain”.[56]
[56]DCB 64
104 He thought there was no capacity for his old job. He felt the plaintiff could perform work but:
“… he should avoid sustained or repeated bending below waist level and manual handling in excess of 15kgs.”[57]
[57]DCB 65
105 He thought the conservative treatment involving medication and radiofrequency denervation should continue. This is clearly treatment directed towards an organic impairment.
106 He dealt with some job suggestions put to him no doubt in some covering letter. They were cashier, meter reader, ticket collector, and disability support worker. Counsel did not really put all of these specifically to the plaintiff for his comment, nor did they address me at any length about them. I will still briefly deal with them as they comprise part of Mr Battlay’s report.
107 I find the opinion of Mr Battlay that the plaintiff was capable of these jobs somewhat inconsistent and generally unsatisfactory. He does not go into any adequate analysis at all of the tasks involved in such jobs. For example a meter reader, one would think, would be required to be bending at times. On the very page before Mr Battlay discussed the meter reader job, in his report he took a history of a “…deep stabbing pain which is aggravated by bending”.[58]
[58]PCB 63
108 A cashier would presumably be required to sit for long periods of time. Mr Battlay recorded that the plaintiff complained that he was worse after sitting for more than 15 minutes in terms of that “deep stabbing pain”.[59]
[59]DCB 63
109 What ticket collectors there are out there in the employment market these days of online ticketing is just guesswork, it seems to me.
110 A disability support worker is the position the plaintiff tried for some seven or so years after he was injured and which I accept he found was too much for him because of ongoing back pain. Mr Battlay said he was fit for the suggested job.
111 How this is consistent with Mr Battlay’s opinion that he is not fit for his pre-injury duties.[60] I cannot reconcile his two statements.
[60]DCB 65
112 Evidence is not required to convince me that a person employed to support the disabled has to be able to attend to a number of manual tasks if those unfortunate clients are to be properly supported and attended to as they endure the challenges in their daily lives.
113 Mr Battlay also does not seem to give any consideration to the fact that the plaintiff is still on very large amounts of daily medication, both over-the-counter and by prescription. He took no adequate or proper history of the plaintiff’s background regarding the factors as s5 of the Act requires. Nor did he take account of chronic pain that at times keeps the plaintiff in bed for several days when he stated the man was capable of these suggested jobs.
114 I do not accept Mr Battlay’s opinion about these job suggestions.
115 A chiropractor’s report in 2009 is too dated to assist in judging now.[61]
[61]DCB 47
116 Two Medical Panel Opinions of four doctors each were tendered. In July 2015, the Panel found the plaintiff had a permanent impairment from the lumbar spine.[62] In February 2016, a second panel of four different doctors found the plaintiff had a dysfunction of the lumbosacral spine and the presence of the lower lumbar degenerative change.[63]
[62]DCB 54
[63]DCB 55
117 These Panel Opinions support an ongoing back impairment that is significantly physically based, when assessed respectively thirteen and fourteen years after the injury was suffered in 2002.
118 Several other documents were tendered, including a transferrable skills analysis. These documents were not really relied on by the parties and they do not warrant any significant discussion presently.
119 A report from the doctor concerning the plaintiff’s ulcer condition that followed as a side effect from his back medication was also tendered. But it does not really assist me now, other than it was another unfortunate consequence of his back pain and the medication required for that.
120 A vocational assessment from Recovre was also tendered but the contents were not really put to the plaintiff for his comment, nor were they relied on in any material sense by either party. They do not warrant any further discussion.
121 Authority dictates that the realities of the labour market need to be kept in mind when dealing with an alleged residual capacity for alternative suitable employment.)[64]
[64]See Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; Acir v Frosster Pty Ltd [2009] VSC 454; Richter v Driscoll [2015] VSC 457; [2016] VSCA 142 for example
122 To suggest that there is a working capacity in this man who turns fifty-six in a few months and is still taking the amount of daily medication he requires for his physical back pain that he has suffered now for fourteen years is unrealistic, in my opinion.
123 Similarly, the uncontested evidence that the pain is such that he needs, at times, to lie down for several days due to severe back pain, of itself renders him probably unemployable. Even the limitations that I have described, as laid down by those doctors who consider he does have some work capacity, are very real limits when they are looked at carefully for a man with the work experience and lack of skills Mr Morrow has.
124 In the end, I am satisfied that, on the probabilities, the suggestion he has a capacity for any work is no more than a hypothesis.
125 While the state of the labour market is not, of itself, a matter for me to consider, in the end, it is only some theoretical capacity for work that these doctors point to. A theoretical capacity for employment is no capacity at all in the real labour market for this man. Dealing with the paragraph (a) back impairment alone, on the probabilities, I find the plaintiff has discharged the onus of proving “serious injury” in regard to loss of earning capacity.
126 I give leave to bring proceedings for pecuniary loss damages. In accordance with practice, as well as the comments I have already made, it follows that I also give leave with respect of pain and suffering damages. Accordingly, there is no need to spend time on the paragraph (c) application, nor deal with the medical reports focussed on psychiatric injury. I should say, however, that the psychiatric and psychological evidence, both from treaters and medico-legal experts generally supports the existence of an Adjustment Disorder with Depression and Anxiety that is a consequence of the primary organic low back impairment. In that sense, it is a secondary mental health problem.
127 Also, that body of evidence generally supports a view that I have accepted, that Mr Morrow has suffered a mental or behavioural disorder that fluctuates from time to time, as a result of his work accident. The condition varies in symptoms and in the level of disability, as well as in the presentation of the plaintiff to doctors, from time to time. Given the years involved, as with the paragraph (a) application, I have been more assisted by the up-to-date reports with respect to the mental or behavioural disorder.
128 I am satisfied the plaintiff has discharged the onus of proving it is “severe” in accordance with the Act and that it alone, absent the physical back impairment, renders the plaintiff permanently unemployable. However, having granted leave with respect to the paragraph (a) application, it is not necessary to discuss further this part of the application for leave.
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