Moss v Barwon Health

[2011] VCC 1206

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-02362

NOEL PETER MOSS	Plaintiff
v
BARWON HEALTH	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March, 1 and 4 April 2011
DATE OF JUDGMENT:	9 May 2011 (Revised)
CASE MAY BE CITED AS:	Moss v Barwon Health
MEDIUM NEUTRAL CITATION:	[2011] VCC 1206

REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – serious Injury application in respect of pain and suffering and economic loss consequences associated with injury to lumbar spine – findings as to credit and relevance of both non-organic presentation and pre-existing physical disability .

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P A Jewell SC with	Clark Toop & Taylor
Mr M J Ruddle
For the Defendants	Mr R Meldrum QC with	Hall & Wilcox
Ms R L Kaye
HIS HONOUR:

1          In this application, the plaintiff seeks leave to commence a proceeding claiming damages for injuries sustained over the course of his employment with the first defendant, and in particular, as the result of an incident which occurred on 9 December 2004. The injury the subject of this application involves an injury to the spine, and the impairment of function which is relied upon is the function of the spine. The plaintiff seeks leave pursuant to the provisions of the Accident Compensation Act 1985 (as amended) to commence a proceeding for both pain and suffering and economic loss consequences caused by his injury.

2          In opposing the leave sought by the plaintiff, the first defendant asserts:

[1]             See the defendants’ list of issues

(i)	that the plaintiff’s injury “was an aggravation of a pre-existing degenerative spine and the aggravation itself is not a serious injury”;
(ii)	that the plaintiff was not working full-time pre-injury and his retained capacity for work is such that any incapacity which he has for work does not meet the statutory economic loss threshold imposed by the Act.[1]

3          In the proceeding, the plaintiff relies upon two affidavits sworn by him, the first on 21 January 2010 and the second on 20 March 2011. The plaintiff was required to attend the proceeding and was cross-examined. In addition, Mr Richard Angliss, an orthopaedic surgeon, gave viva voce evidence and was cross-examined. Otherwise the parties rely upon medical and like material tendered by them in the course of the proceeding.

The Plaintiff’s Affidavit Evidence

4          In his first affidavit, the plaintiff deposed as follows:

•  He had worked in unskilled labouring-type occupations, in the course of which he had suffered back strains in May 1988, August 1988 and July 1992 from which he had recovered.

•  In July 1994, he had applied for a position as a nursing attendant with Barwon Health and was accepted as an employee after passing a pre- employment medical examination. The plaintiff said that in the course of this work, he injured his low-back in December 1994; that he was off work for about two months as the result of that injury and that he then returned to normal duties. He said that in 1999 he was employed by Rice Village Nursing Home and that between 1999 and 2001 he completed his Division 2 Nursing Certificate at the Gordon Institute.

•  In 2001, he commenced employment with Barwon Health and whilst engaged in that employment, he completed a Graduate Diploma of Palliative Care. He said that in 2001 he developed carpal tunnel syndrome, in treatment for which he underwent bilateral carpal tunnel release surgery in April 2001 from which he made a good recovery.

•  In November 2002, by reason of the presence of bilateral hip pain, he underwent an MRI scan which revealed the presence of a vascular necrosis in the femoral head of his left hip. In treatment of that condition he underwent a Birmingham hip replacement which was performed by Mr Richard Angliss in April 2003. He said that following this surgery he was absent from work for approximately five months and that, whilst he had suffered from some back pain prior to his hip replacement, “I was cleared to go back to full-time work in about October 2003 and my back and left hip were okay”.[2]

•  He suffered an injury on 9 December 2004 when he stepped off a concrete footpath into wet mud and fell, his backside hitting the concrete. He said that following this incident he returned to work the next day but was unable to complete his shift. He then consulted his general practitioner, Dr Peter Hales, and was prescribed medication and given two weeks off work. He said that in February 2003, he attempted to return to work performing light duties and that in April or May 2005, he went back to full time duties:

[2]             Plaintiff’s Court Book (“PCB”) 14

“However, my back was still sore. By May 2005, one morning I
couldn’t get out of bed due to pain.”[3]

[3]             PCB 15

Whilst the plaintiff subsequently returned to office duties, initially one day a week and then three days per week between 9.00 am and 1.00 pm, he said:

“I couldn’t cope due to the low back pain and pain going down my

right leg and also my groin.”[4]

• His back condition was initially managed at the Geelong Hospital Pain Clinic where he was an out-patient for approximately eighteen months. During this period he was administered nerve blocks on five different occasions.

In February 2007, the plaintiff was referred to Mr Steven Jensen, specialist in musculoskeletal medicine, who increased his pain medication regime and referred him to Mr Paul Verrills to assess the plaintiff for a spinal cord implant. After undergoing a successful implant trial, the plaintiff was fitted with the spinal cord implant at the Masada Hospital. The plaintiff said that whereas before being fitted with the implant he was using significant amounts of medication both in tablet form and in the form of “Norspan patches” to manage his pain, with the insertion of the spinal cord implant he was able to wean himself off his medication over a period of two months and thereafter he relied “… on the spinal cord stimulator and opiates”.[5]

[4]             PCB 16

[5]             PCB 16

• He suffered from symptoms of low-back pain and pain in his sacral area and thoracic area, together with his right hip. He said he had been unable to return to work involving lifting, repetitive movement; or standing or sitting for lengthy periods. He said that before his left hip replacement he had enjoyed surfing, swimming and bike riding and that he had run in marathons and that after the hip replacement he had been given the go ahead to start performing his normal sporting activities but had not taken them up by reason of the intervention of the fall in December 2004. He said that he had always liked gardening and “I was in the garden a lot”.[6] He said he had continued to garden even when he had problems with his hip but that since the subject incident his gardening had been greatly restricted. He said before the accident he had been able to renovate his house; he had undertaken painting, plastering and the sanding of the floors. He said that after the accident he had been unable to undertake these tasks and had to employ people to help him. [6]             PCB 18

5          In his second affidavit, the plaintiff deposed that:

• He suffered from pain in his low-back and upper back; pain extending from hip to hip but mostly in his right hip; and severe pain in his coccyx area. He said that if he stood for too long or walked for too long he had to rest, but he tried to do as much around the house as he could. He said that he had purchased a self-propelled mower which he used in short bursts, and that he tried to help his wife when they went shopping and that the housework which he undertook for short periods aggravated his pain.

• His condition was currently managed by Dr Hales who he consulted on a monthly basis; that Dr Hales was prescribing him with OxyContin (which he took in 20 milligram doses twice a day); Lyrica (which he took in 75 milligram doses twice a day); Panadeine Osteo (which he took in 65 milligram doses four times a day); and Endone and Readron, the latter being a hormone replacement. He said he was also using Caverject for erectile dysfunction.

• Whilst his spinal cord stimulator –

“was okay at the start, it has declined in its response”.[7]

• By reason of the fact that he had been unable to return to work he had commenced studying nine hours a week for a Diploma of Ministry at the Reform Theological College, Geelong. He described this course as being a three-year course which he commenced in June 2010 and said that if he obtained his degree he was hopeful of working three hours on alternate days performing pastoral care in hospitals. [7]             PCB 19.2

The Plaintiff’s Evidence in Cross Examination

6          In the course of cross-examination, the plaintiff:

•  said that he suffered from symptoms of pain in his upper back and in his lumbar spine. He said that these symptoms had been present from the time he first consulted his general practitioner;

•  described suffering injuries to his back whilst working as an orderly but said that he had recovered from those injuries;

•  said that in the year of his accident he had been working an average of 32 hours a week;

•  described his back condition immediately before the fall as being reasonably good for his age and said that he did not feel that his work was causing him problems for his back or that his back was aggravated by his lifestyle;

•  accepted that he had consulted Mr Angliss for a review of his hip, and when it was put that he had told Mr Angliss that his back pain was increasing if he worked for more than two to three shifts at a time, he commented:

“That meeting … with Mr Angliss … I think is when I was going for review of my hip. So the pain wasn’t actually related to the issue … I went to see him for.”

The plaintiff, however, accepted that it was possible that he did tell Mr

Angliss that his back was worse after a few days of exercise;[8]

[8]             T 32

• said that his problems both with sex drive and sexual performance had commenced with the accident. When it was put to the plaintiff that in July 2000 he had consulted Dr Peter Hales with respect to “only partial erections”,[9] he responded:

[9]             T 33

“I can’t remember that but if it says that’s there that’s there”.

•

described the symptoms of low-back pain which he experienced prior to his accident as being minor;

•

accepted:

(i)	that in his initial injury claim form he had described an injury involving an inflammation around the left hip area and had said nothing about his back;[10]
(ii)	that in his WorkCover claim form, which he completed on 13 December 2006, his injury was again described as an injury to his right hip.

[10]           T 39

The plaintiff described these entries as being a mistake and arising initially by reason of his concern that the fall may have aggravated his previous hip surgery. I accept this evidence, having regard to the fact that twelve months before he completed his 2006 WorkCover claim form, the plaintiff had presented to both Dr Hales and Mr Angliss complaining of the fact that the fall had caused significant back and buttock pain;[11]

[11]           PCB 38 and 33

•

said that by reason of the injury to his back, he had been unable to continue his renovations but accepted that he had –

(i)	undertaken a bit of maintenance painting;[12]
(ii)	continued to do gardening which involved mowing with his self- propelled lawn-mower and using a Whipper Snipper, and commented:

[12]           T 47

“I do the mowing, then I have a break and then I might have a

rest and then I might go back and Whipper Snip”.[13]

[13]           T 48

(iii) undertaken light pruning;

(iv)     it was not uncommon for him to work in his garden for over half an hour at a time[14] but said that if he undertook light pruning for between 20 and 40 minutes, that activity aggravated his symptoms, commenting:

[14]           T 51

“Certain activities aggravate more than others so standing – if I have to bend over, as you were saying, to pick up something then that would aggravate it further. If I had to twist after pruning something and place it in a rubbish bin, that would cause further aggravation. It’s not just those singular pruning actions that you do, when you prune something you’ve got to do something with whatever you prune”.[15]

[15]           T 55

• Commented:

“I’ve explained to the doctors my restrictions as I experience it at that time. There are times when I have more pain than others and there are times when my pain is manageable, but my specialist advised me that I had to keep my activities up to a level that I was able to do them comfortably and that I was not to stop doing anything than just lie around (sic) and do nothing.”[16]

[16]           T 62

• said that the insertion of the spinal cord implant had given him an increased ability to do things but that he still had pain and that when his stimulator was first implanted, it was more effective than it was at the present time;

• agreed that he could go shopping without his wife and accepted there may have been occasions when he carried 4-litres of milk in one hand but commented that he generally avoided lifting and that heavier items were managed by his wife;[17]

• accepted that in August 2008 he had reported to a medical practitioner that he had a standing tolerance of only five minutes, but said that he could not remember his actual tolerance at that time or the detail of that history.

[17]           T 64; T 68

The Plaintiff’s Evidence in Re-Examination

7          In re-examination, the plaintiff said that he had been required to undergo many adjustments of his stimulator in the early stages after its insertion as his body adjusted to its operation and that one such adjustment had taken place on 21 August 2008

8          The plaintiff:

•  said that even with the operation of his stimulator, his pain was always present and that it increased with activity.[18] He said that before his fall he was doing plastering, cornicing and painting in order to finish his renovations and that he was undertaking these activities:

[18]           T 76

“Every time I had a day off, I’d be doing it and we were doing it on
weekends”.[19]

[19]           T 77

• described his previous gardening as involving the building of garden beds which were bordered by volcanic rocks which he had put into position “without any huge difficulty”.[20]

• described working in palliative care as being –

[20]           T 77

“part of my life … I believe my calling was working in palliative care. With palliative care, I did a degree in palliative care, I studied that off campus at Flinders University; it took me three years so for me working in palliative care, that was my life.”

The Medical Evidence of Mr Richard Angliss

9          In a report dated 2 June 2005, Mr Richard Angliss, an orthopaedic surgeon, described the plaintiff as presenting to him with a history of falling heavily on concrete and landing on his hip and back. He said that before the fall, the plaintiff had been progressing very well (I interpret Mr Angliss as referring to the hip replacement surgery which he had undertaken upon the plaintiff) and that he now presented with pain around the low-back which radiated into the buttocks. Mr Angliss referred the plaintiff for x-rays and an MRI scan and reported to the plaintiff’s general practitioner, Dr Peter Hales, that he would re- assess the plaintiff when the results of these investigations were available.

10        In a further report dated 5 June 2006, Mr Angliss commented that the plaintiff had undergone a hip resurfacing procedure on 28 April 2003, in respect of which he had made a good recovery. He said that whilst his recovery was complicated in September 2003 by an episode of trochanteric bursitis, which responded well to an injection performed under ultrasound control, when he examined the plaintiff in November 2003, the plaintiff was working well and was generally much improved. He said that he examined the plaintiff in September 2004 and at that time the plaintiff reported symptoms of bilateral lower back pain radiating out over the buttocks and down to the lateral aspect of his spine. Mr Angliss commented that he thought that the plaintiff was presenting with mild localised tenderness over the left greater trochanter but that most of his pain was emanating from his low-back and was consistent with the presence of multiple level degenerative changes which were present in the lumbar spine.

11        He said that the results of the MRI scan which he had ordered revealed the presence of widespread degenerative change throughout the plaintiff’s lumbar spine, with the presence of a posterior lateral disc protrusion at T9-10; a slightly smaller disc protrusion at L1-2 and L2-3; and disc degeneration at L3- 4 and L4-5.

12        He commented that he had last seen the plaintiff in August 2005 and opined that the degenerative condition in the plaintiff’s lumbar spine had been aggravated by the nature of his work, that the plaintiff had a permanent impairment with respect to his low-back; that the degree of degeneration present in his back was significant; and that the plaintiff may require further intervention in the future should he develop segmental instability and nerve impingement.

13        In a further report dated 14 December 2007, Mr Angliss advised that he had seen the plaintiff on two further occasions, 8 November 2006 and 15 December 2006. He opined that the plaintiff’s fall in December 2004 had exacerbated the plaintiff’s degenerative symptoms and he commented:

“Certainly his pain complaints have been very consistent since that time. I am of the opinion that his pain is caused by the degenerative arthritis in his back and that this was directly exacerbated by the fall he sustained at work in December 2004 which was now solely responsible for the pain which the plaintiff presented.”

The Viva Voce Evidence of Mr Angliss

14        Mr Angliss attended for cross-examination.

15        Mr Angliss said that when he saw the plaintiff in September 2004 he had recorded a history (his usual practice in this regard being to make a note of the history he had obtained from a patient either before he saw his next patient or at the end of a consulting session[21]), that the plaintiff was suffering from low back pain which was made worse if he worked for more than two to three shifts at a time or if he undertook specific activities such as long walks or diving with flippers. Mr Angliss said that he believed that these symptoms were coming from the plaintiff’s back but that he was concerned to exclude the possibility that the plaintiff was presenting with a complication from his total hip joint replacement.[22] He said that in order to satisfy himself that the plaintiff’s pain was not coming from the hip joint, he arranged for an injection of the plaintiff’s bursa. He described this as being a diagnostic test in respect of which the plaintiff went on to obtain good relief and commented:

“So I think that is a fair diagnosis that he did in fact have bursitis.”[23]

[21]           T 89

[22]           T 90

[23]           T 91

16        Mr Angliss opined that the plaintiff had presented to him with mechanical back pain following his fall which arose from the degenerative changes to the structure of the back. He said that an aggravation of degenerative changes may result in symptoms that wax and wane but may be –

“persistent and be consistent.”[24]

[24]           T 97

17        In re-examination, when asked to comment upon the plaintiff’s presentation both before and after the fall, Mr Angliss commented:

“Whereas beforehand the focus had been on his hip, after the fall the

focus really became his back.”

The Balance of the Medical Evidence

18        In a report dated 2 September 2005, Dr Peter Hales, the plaintiff’s treating general practitioner, reported that the plaintiff was suffering from significant back pain, buttock and lateral hip and thigh pain “due to multiple level lumbar disc prolapses”[25] which began after a fall on a wet and slippery path at his workplace on 10 December 2005. Dr Hales opined that notwithstanding that the plaintiff had evidence of extensive lumbar degeneration and a history of osteoarthritis of the left hip with a left hip replacement in 2003, he was functioning well at work, was walking extensively and had been rehabilitated following his hip replacement. He continued:

“I have no doubt that the heavy fall has caused problematic disc prolapses (sic) at or more lumbar levels despite the gradual increase in the extent of his pain and stiffness.”[26]

[25]           PCB 40

[26]           PCB 41

19        Dr Hales opined that the plaintiff was expected to improve slowly but that he would have a better idea of the plaintiff’s functional prognosis twelve months after the incident.

20        In a report dated 3 December 2007, Dr Hales commented that the plaintiff:

• had not worked for twelve months, during which time he had been attending the Pain Clinic at Barwon Health;

• suffered from persistent low-back pain which was severe at times and radiated to the inner aspect of both thighs, together with pain associated with muscle spasm, particularly of the paravertebral muscles;

• employed medication in the form of Tramal SR twice a day for pain management and Edronax twice a day –

“an anti-depressant often used adjunctively for management of

chronic pain”.[27]

[27]           PCB 65

• was unfit to work in any physical capacity due to his pain which despite medication, inhibited his supportive core muscle functions –

“leaving him with stiff easily fatigued and (sic) muscles which
spasm.”

21        In a report dated 30 March 2011, Dr Hales opined:

“Noel Moss, aged 52 years, is stabilised as far as his multilevel lumbar disc disease and chronic pain is concerned. He still suffers back pain which is partially responsive to a spinal cord stimulator which was inserted in 2008. He still requires ongoing treatment with Lyrica at 75 mg twice per day, Oxycontin slow release 20 mg twice a day. His functional level continues to be limited by pain. He tries to walk daily but is unable to do any significant physical household or outdoor duties. He remains unfit to return to his previous level of employment.

In summary, very little has changed since my last report concerning his work-related multiple level lumbar disc injuries.”[28]

[28]           PCB 200K

22        In a report dated 23 January 2007, Dr R A Weaver, the service director of the Pain Management Clinic at Barwon Health, opined that the plaintiff’s pain had persisted for eighteen months and that despite some periods of minimal symptoms, he had suffered from fairly frequent exacerbations of pain; that he supported the concept of the plaintiff returning to work on a graded program without heavy lifting; and that whilst he felt that the plaintiff was positively motivated towards that idea, his longer term prognosis was uncertain and he would be –

“very cautious about suggesting that he is going to recover enough to

return to full time work.”[29]

[29]           PCB 48

23        In a further report dated 12 September 2007, Dr Weaver commented that since January 2007 the plaintiff had attended his clinic on six occasions and that by reason of his lack of progress, he felt that a trial of spinal cord stimulation was an appropriate mode of management.

24        Dr Steven Jensen, musculoskeletal physician, saw the plaintiff at the referral of Dr Peter Hales on 2 April 2007. He opined that the plaintiff presented with “chronic mechanical low-back pain” and said that he had discussed with the plaintiff management strategies, including increasing his Tramal and continuing to increase his use of Lyrica to “maximal dosage”, commenting:

“The goal of such analgesic medication is to enable a reasonable level of

physical activity despite persistent severe pain.”

25        He commented that the plaintiff suffered from episodes of muscle spasm which responded positively to local anaesthetic injections and that he was not an appropriate candidate for surgery.[30]

[30]           T 49-50

26        In a further report dated 6 September 2007, Mr Jensen opined that the plaintiff was –

“… suffering from a neuropathic pain syndrome affecting his

thoracolumbar spine, with referred pain to the lower limbs.”

27        He opined that the plaintiff’s employment was a significant contributing factor to the development of this syndrome; that he was totally incapacitated for pre- injury work or for any suitable duties, but that in theory he could undertake employment which was predominantly sedentary “at least for a few hours per day”. He recommended the only treatment modality which may be of benefit to the plaintiff was that of an implant of the spinal cord stimulator, and referred the plaintiff to this end to Dr P Verrills.

28        On 4 February 2008, Dr Jensen reported to Dr Hales as to the plaintiff’s presentation at that time:

“… we must assume that he probably has discogenic pain with

neuropathic quality leg pain. … .

The only other interventional procedure that may be of benefit here is a spinal cord stimulator. Certainly if we cannot control his pain with medication it would certainly be worth pursuing this.”

29        I note that in the course of this report, Mr Jensen commented that there were no “red flag indicators” associated with the plaintiff’s presentation – I interpret this statement to mean that he was satisfied that the plaintiff’s presentation was explained by, and was proportionate to, his organic condition.

30        In his report dated 18 March 2008, Dr Jensen commented as to the plaintiff’s presentation:

• That he continued to hold the opinion that the plaintiff presented with mechanical lumbosacral spine dysfunction with referred pain to his lower limbs which bore a distinct neuropathic quality;

• That his prognosis was poor given the length of time since his injury;

• That the plaintiff had an excellent sitting tolerance and tolerance to perform standing and walking tasks with limitations and that as such he was capable of suitable employment assuming that he underwent appropriate training;

• That having regard to the identification by Mr Steven Yates, a physiotherapist, of some non-organic features in the plaintiff’s presentation “some cognitive behavioural therapy would be worthwhile in the long-term to help this man better understand his pain state”.[31]

[31]           PCB 128

31        In a report dated 5 February 2008, Dr Robyn Horsley, an occupational physician, opined that the plaintiff presented with an exacerbation of a pre- exiting degenerative condition of the lumbar spine and that he had developed Chronic Pain Syndrome, together with a Chronic Adjustment Disorder. She opined that the plaintiff in theory had a capacity to work on a part-time basis, but noted that the plaintiff’s concentration and attention span were affected by his use of Tramadol and Norspan patches and that:

“This reduction in concentration is likely to impact upon his work capacity even further and result in a lack of work capacity. In theory, with some cognitive behavioural counselling and reduction in pain medication, and better pain coping strategies, he would have the capacity for part time work, 15 – 20 hours … .”

She commented however:

“On presentation today I do not believe he has any capacity for work.

This is likely to continue in the foreseeable future”[32]

[32]           PCB 107

32        In a further report dated 24 March 2011, Dr Horsley noted that the plaintiff had improved functional tolerances following the insertion of a spinal cord stimulator, but that his level of pain remained fairly similar; that he presented with an aggravation of underlying pre-existing degenerative changes in the thoracolumbar spine, together with a Chronic Adjustment Disorder; that he was unfit for physical work, and that his capacity for suitable employment:

“… is likely to be up to 15 hours per week … provided his employer is

flexible.”[33]

[33]           PCB 200J

33        Dr Paul Verrills, in a report dated 11 April 2008, stated that the plaintiff was referred to his management by Dr Jensen and that Dr Verrills had initially assessed the plaintiff in November 2007. He said that on 21 December 2007, he had performed a right L4-5 medial branch block and the right sacroiliac joint block which the plaintiff reported as of significant benefit. He opined that the plaintiff was totally incapacitated for work at that time and:

“In view of the fact that he does have mixed neuropathic and nociceptive pain which is overwhelming and incapacitating and has not responded to medication, simple interventions or a pain management program, I believe that he should be seriously considered for a neuromodulation trial.”[34]

[34]           PCB 132

34        In a further report dated 19 November 2008, Dr Verrills reported that:

•  the plaintiff underwent a spinal cord stimulator trial on 14 May 2008 which was overwhelmingly successful and that whilst the plaintiff noted significant improvements in his activities of daily living in association with that trial, when he turned his stimulator off his pain would return;

•  on 11 June 2008, a permanent spinal cord stimulator implantation was undertaken;

•  as at 21 August 2008, the plaintiff reported:

“great coverage (sic) of his back pain … that he was off all

narcotics and Lyrica.”

• the plaintiff’s prognosis was good following his successful spinal cord stimulator implant;

• he would review the plaintiff at the six-month mark and then be able to provide further recommendations as to his fitness for work duties.

35        Mr David Brownbill, consultant neurosurgeon, examined the plaintiff on 6 August 2009. At that time he opined that:

• The plaintiff suffered an aggravation of longstanding lumbar spinal degenerative changes in the fall of 9 December 2004;

• In all probability, the plaintiff’s lower back pain would continue in a fluctuating manner indefinitely;

• The plaintiff did not possess a realistic capacity to perform his pre-injury employment and that the fall of 9 December 2004 was a major contributing factor to that incapacity.

36        In a further report dated 20 August 2009, Mr Brownbill noted that at the time of his examination of the plaintiff on 5 August 2009, he had been advised by the plaintiff that he had experienced intermittent bouts of low-back pain before his fall but they always resolved, and commented that he saw no indication to modify the opinion previously expressed by him.

37        Mr Brownbill re-examined the plaintiff on 2 February 2011. He commented that his examination of the plaintiff did not reveal any objective neurological abnormality; that he maintained his previous opinion that the plaintiff had suffered an aggravation of longstanding lumbar spine degenerative changes in the fall of 9 December 2004, and that the plaintiff presented with ongoing back stiffness and pain which fluctuated and was aggravated by physical activity. He opined that the plaintiff’s pain would continue in a fluctuating manner indefinitely; Mr Brownbill opined that the fall of 9 December 2004 remained a significant contributing factor towards the plaintiff’s back injury; that on the balance of probabilities the plaintiff was incapable of undertaking full-time employment and that:

“Taking into account his age of 51 years, the aggravation of lumbar spine degenerative changes which has required a spinal cord stimulator insertion, his work experience having always involved physical activities and his rural place of residence and his ongoing activity-related pain, I consider on the balance of probabilities that he is presently incapable of undertaking suitable employment.”

38        Mr John O’Brien, an orthopaedic surgeon, examined the plaintiff on 3 September 2009. On that occasion, Mr O’Brien opined that the incident in December 2004 clearly precipitated the onset of the back pain which appeared to have been related to an aggravation of pre-existing lumbar spondylosis. Mr O’Brien opined that the plaintiff was clearly disabled –

“in relationship to chronic back pain”

and that his

“underlying problem would appear to be symptomatic or lumbar and, to some extent, now thoracic spondylosis which would suggest there is some suggestive signs which indicate the presence of psychosocial factors resulting in a complex clinical presentation and thus influencing the overall clinical course”.[35]

[35]           PCB 197

39        In a further report dated 23 February 2011, Mr O’Brien opined:

“This patient’s clinical condition indeed remains unchanged since my initial examination. As previously indicated, following the initial injury the problem was apparently (sic) confined to the lower lumbar region with the presence of chronic pain but this has now been associated with severe thoracic pain which the patient has indicated has now become ‘an issue’. …

The physical signs remain very subjective and in my opinion are not diagnostic of specific musculoskeletal pathology which could explain the nature and distribution of this patient’s current pain. I would therefore again consider that the patient now presents with a chronic pain syndrome which has emerged following the back injury in association with the fall in the course of his employment. It would appear that the subsequent emergence of chronic pain is not in fact associated with the previous history of episodes of back pain.

The clinical condition is certainly stable. I would consider it appropriate that this patient continue with a conservative course directed towards chronic pain management. This obviously involves the continuing activity of the spinal cord stimulator and the extensive use of analgesic medication. Some further temporary symptomatic benefit might be obtained from the occasional spinal paraspinal injection which may be assistance (sic) in the overall control of chronic pain. … .

The prognosis here is poor and I do not anticipate that this patient’s clinical condition will improve. … .

This patient is now totally and permanently incapacitated and there is no possibility he would return to his pre-injury occupation … . As indicated he is now undertaking some study which he already indicates he physically struggles with and I am sure this situation will continue. In fact I would consider this patient’s general, social, domestic and recreational activities are severely restricted and this is certainly a permanent situation.”[36]

[36]           PCB 200(C) – 200(D)

40        Mr Brendan Dooley, an orthopaedic surgeon, examined the plaintiff on 3 August 2006, at which time he commented that it was difficult to understand why the plaintiff was so disabled following his fall, that he had made an excellent recovery from his hip surgery, and that the probability was that his current disability stemmed from a further soft-tissue injury to his lumbosacral spine. He expressed the opinion at that time that the plaintiff’s condition had not stabilised.

41        Mr Michael Dooley, an orthopaedic surgeon, examined the plaintiff on 19 May 2010. He noted that the plaintiff presented with a spinal cord stimulator and a history of the need to employ OxyContin twice daily for ongoing symptoms of pain. He opined that the plaintiff’s work-related episode had aggravated his underlying degenerative disc disease; that the plaintiff’s presentation in terms of consistency and intensity of pain was greater than would be expected from this aggravation. It was his opinion that the plaintiff’s spinal cord surgery was not appropriate; that the plaintiff presented with inconsistencies in relation to straight leg raising; and that whilst he would have expected the plaintiff to present with ongoing intermittent low-back and buttock pain, he considered that the plaintiff was presenting with a Chronic Pain Syndrome with clinical signs suggestive of a psychological reaction. He opined that the plaintiff would be capable of carrying out light physical clerical duties.

42        In a further report dated 25 February 2011, Mr Michael Dooley opined that the plaintiff had aggravated his underlying disc degenerative disease in his work- related episode; that the plaintiff described a disability greater than he would have expected from the injury sustained; and that from an orthopaedic viewpoint alone, he would have expected the plaintiff to be experiencing intermittent symptoms of low-back and buttock pain with a retained capacity to carry out light physical work and clerical duties.

43        Mr Clive Jones, an orthopaedic surgeon, examined the plaintiff on 27 November 2008. Mr Jones opined that the plaintiff presented with symptomatic disc degeneration, together with a Pain Disorder, and that whilst his accident may have involved some aggravation of his disc degeneration, the effects of that event had receded and the plaintiff’s current presentation was associated with the degenerative change in his spine. He commented that the plaintiff presented with “signs consistent with a non-organic illness” and that he retained a capacity to work in clerical or similar type employment.[37]

[37]           PCB 281-282

44        Dr Gary Davison, a specialist occupational physician, examined the plaintiff on 7 December 2006, at which time he expressed the opinion that the plaintiff’s lower back pain was secondary to his right hip pathology and that:

“The MRI scan of lumbar spine findings are probably not of any clinical

relevance … .”

45        Mr Davison opined that the plaintiff had a capacity for suitable duties on the basis of a graduated return to work.[38]

[38]           DCB 40

46        Having regard to the fact that Mr Davison is the only medical practitioner to express an opinion that the plaintiff’s fall of 10 December 2004 did not involve an aggravation of the degenerative condition in his lumbar spine, I do not find the opinion of Dr Davison to be either reliable or persuasive.

The Issues Raised by the Defendants

47        An issue arises in this application as to whether the plaintiff’s present symptoms and incapacity stem largely from organic or non-organic factors. Whilst Mr Dooley and Mr Jones are clearly of the latter view, a substantial body of opinion is of the former view.

48        Having regard to the fact that as at the time at which the plaintiff underwent the insertion of a spinal cord stimulator on 11 June 2008:

• the plaintiff was being managed with significant doses of prescription strength pain management;

• none of the doctors who were managing the plaintiff suggested that he was presenting with other than a physically-based condition;

• the decision to insert the stimulator was made on the basis of the plaintiff’s successful response to a spinal cord stimulator trial;

• the insertion of the stimulator resulted in the plaintiff initially reporting that he had experienced a very favourable response to that procedure;

I am satisfied that as at June 2008, the plaintiff was presenting with principally organic pain secondary to an aggravation of the underlying degenerative condition which was present in his lumbar spine at the time of his fall.

49        It is put on behalf of the defendants that the increase in both the plaintiff’s symptoms and his level of incapacity which has occurred since the insertion of the spinal cord stimulator is caused by the influence of non-organic factors.

50        Whilst Mr Michael Dooley and Mr Clive Jones are clearly of the opinion that non-organic factors primarily account for the plaintiff’s current presentation, that view is not shared by Mr Brownbill and the plaintiff’s treating general practitioner, Dr Hales.

51        Mr John O’Brien’s position with respect to this issue is not easily determined. In his report of September 2009, he alluded to the presence of psychological factors as influencing the plaintiff’s clinical course, and in his report of 23 February 2011, he described the plaintiff as presenting with a Chronic Pain Syndrome which had emerged following his back injury. The fact that Mr O’Brien opined that it was appropriate to manage the plaintiff’s presentation with the extensive use of analgesic medication, the employment of his spinal cord stimulator and occasional spinal paraspinal injections however, suggests that Mr O’Brien considered the plaintiff’s current presentation to be one which was caused substantially by organic factors, and I am satisfied that I should interpret his opinion in that way.

52        My interpretation of Dr Horsley’s report is that, at the time at which she re- examined the plaintiff on 24 March 2011, she was of the opinion that whilst the plaintiff presented with a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, this was secondary to the plaintiff’s organic problems which were the major factor in the plaintiff’s presentation.

53        Dr Hales has managed the plaintiff from the time shortly after the accident to date. It is clear that Dr Verrills reported to him as to the plaintiff’s progress under his care.[39] I am satisfied, having regard to his continued management of the plaintiff, that Dr Hales is in a very good position to assess whether the plaintiff’s presentation is consistent with his symptoms emanating from organic or non-organic causes. That Dr Hales adopts a considered approach to expressing a prognosis with respect to the plaintiff’s condition is, in my opinion, demonstrated by his care in expressing a prognosis at the time that he authored his report in December 2007.

[39]           See the reports of Dr Verrills at PCB 134 and 138 which were forwarded to Dr Hales.

54        In his reports, Dr Hales makes no suggestion that the plaintiff presents with anything other than an organically-based condition and his management of the plaintiff is consistent with that view. Given his uninterrupted management of the plaintiff which has continued now for a number of years, I am of the opinion that the diagnosis and prognosis expressed by Dr Hales should be accorded considerable weight.

55        When I take into account:

• the opinion of Dr Hales that the plaintiff’s presentation is principally caused by organic factors, which opinion is in turn supported by that of Dr Brownbill, and by my interpretation of the opinions of Mr O’Brien, and Dr Horsley;

• the plaintiff’s attempt to rehabilitate himself by commencing a Diploma of Ministry which, in my opinion, is inconsistent with the typical presentation of a person whose disability is predominately non-organic in nature;

• the plaintiff’s history of recovery from his previous conditions of bilateral carpal tunnel syndrome; necrosis of the femoral head of the right hip, and repeated incidents of work-related back pain without the onset of psychological factors which does not suggest any tendency in the plaintiff to the development of those factors;

I am satisfied that the history of the plaintiff’s presentation is principally

organic in nature, and that it emanates from the aggravation of the pre-

existing degenerative condition which was present in his spine by the trauma

associated with his fall.

56        It is put on behalf of the defendants that I should be persuaded by the opinion of Mr Jones that the effect of any aggravation by the fall of the plaintiff’s pre- existing degenerative condition in his lumbar spine has ceased and the plaintiff’s current presentation relates to the natural progression of his pre- existing condition. Given the large body of opinion which expresses an opinion contrary to that of Mr Jones as to the cause of the plaintiff’s present symptoms, I can see no reason why I should prefer the opinion of Mr Jones on this issue.

57        Although it was put that Mr Dooley expressed a similar opinion to Mr Jones on this issue, I do not accept that submission. Whilst Mr Dooley comments that the plaintiff may well have noted ongoing intermittent low-back pain as a consequence of his naturally occurring degenerative disc disease, he states that this condition was definitely aggravated by the plaintiff’s fall.[40] Whilst he takes issues with the severity of the plaintiff’s symptoms, he does not opine that those symptoms are part of the normal aging process.[41]

[40]           DCB 44

[41]           DCB 48

The Plaintiff’s Credit

58        It was put on behalf of the defendant –

(i)	that the plaintiff deliberately exaggerated his symptoms and the severity of his back pain (an example of the latter point being the plaintiff’s failure to report his back pain at an early time);
(ii)	that the plaintiff deliberately “misstates the absolutes”.[42] (This statement was meant to convey the fact that the plaintiff often said that he was unable to undertake a specific activity when the truth of the situation was that his ability to undertake the activity was limited.);
(iii)	that the plaintiff played down the significance of his pre-accident back symptoms in the presence of a history of attendances upon his general practitioner over the course of a number of years with incidents of back pain;
(iv)	that the plaintiff’s unreliability as a witness was demonstrated by his evidence that his problems with sex drive and sexual performance first manifested themselves after the accident; and yet he had presented to Dr Hales in July 2000 with symptoms of testicular soreness and not infrequent partial erections, and in 1985, he had presented to his general practitioner with a loss of libido and impotence;
(v)	that the plaintiff’s statement in August 2008 that he had a tolerance level for standing of only five minutes must have been a gross exaggeration, and that the plaintiff’s evidence as to the activities which he undertook in his garden, whilst shopping and in working around the house, also fell into that category;
(vi)	that the history given by the plaintiff to Mr Angliss in September 2004 that he was having difficulty performing his work by reason of back pain, and that his symptoms were aggravated by going for long walks or diving with flippers, when considered in the context of the plaintiff’s evidence that his pre-accident back problems were minimal, was an example of the plaintiff’s attempt to minimise the problems which were present in his back prior to the accident.

[42]           T 127

59        Generally, I am of the opinion that the defendants’ attack on the plaintiff’s credit was ill-founded for the following reasons:

(i)	Whilst I accept that the plaintiff often employed absolutes which gave the impression that he has lost all capacity to perform activities when the reality of the situation was that the accident had had the effect of severely interfering with his capacity to undertake those activities without destroying that capacity, and whilst I accept that in the legal setting, where the choice of words is so important, the plaintiff’s description of the activities he undertook in this regard was inaccurate, I am not convinced that in the passages of evidence which the defendants rely upon in making this point, the difference between an inability to undertake an activity and being greatly restricted in one’s ability to undertake an activity is more a matter of style of expression rather than accuracy or reliability;
(ii)	As to the plaintiff’s prior history of back pain, I do not accept the defendants’ position that the plaintiff’s evidence misstated the true position in this regard. In his affidavit of 21 January 2010, the plaintiff deposed to the fact that he had suffered back strains in 1988, 1992 and 1994, and that he had consulted Mr Angliss in September 2004 with respect to increasing pain in his hips and low-back. He said that, following his hip replacement, he was off work for five months and that upon his return to work, “My back and left hip were OK”.[43] In my opinion, the plaintiff’s medical history, insofar as it involved presentations to medical practitioners with complaints of back pain prior to the fall the subject of this application, was not inconsistent with that evidence; nor was his work history with the first defendant. Further, although the defendants point to the history which Mr Angliss obtained from the plaintiff in September 2004 of back pain (which restricted his activity to work and which was aggravated by walking and diving), as providing a true indication of the extent of the plaintiff’s pre-accident back complaint, I note that Mr Angliss subsequently diagnosed that the plaintiff was presenting with bursitis.[44] Having regard to the evidence given by Mr Angliss that, whereas before the fall “the focus had been on his hip, after the fall the focus really became his back”,[45] I interpret the position of Mr Angliss to be that it was the plaintiff’s hip and not his back which was the plaintiff’s major problem as at September 2004;
(iii)	It was put that because the plaintiff was a male, and that he had attended a doctor on one occasion in 1985 complaining of impotence and on one occasion in 2000 complaining of suffering from testicular soreness and partial erections, that the plaintiff could not have forgotten those consultations and that he must have deliberately misrepresented the position about which he gave evidence that his sexual difficulties first arose following the accident.
(iv)	I do not accept that position. I do not find it surprising that the plaintiff may have been unable to recall one attendance upon a medical practitioner in 1985 when he presented with so-called “impotence”[46] in circumstances in which the condition responsible for the presentation was not serious enough to warrant a further presentation or any follow- up. I hold a similar view with respect to the plaintiff’s presentation to Dr Hales on 24 July 2000;
(v)	As to the evidence given by the plaintiff with respect to his ability to complete his renovations; to undertake home maintenance; to work in the garden or to undertake shopping; whilst I accept the defendant’s position that there was some inconsistency in the plaintiff’s evidence with respect to these topics, I am of the opinion that that inconsistency is largely explained by the plaintiff’s evidence that his symptoms varied and that the level of his incapacity was not constant;
(vi)	Finally, as to the statement by Mr Meldrum QC, who appeared on behalf of the defendants, that the plaintiff’s statement in August 2008 that his standing tolerance was limited to five minutes must have been a gross exaggeration, I accept the submission made on behalf of the plaintiff that this may have represented the plaintiff’s incapacity at that particular time, having regard to the adjustment process which the plaintiff was undergoing following the insertion of his stimulator and the variation in the plaintiff’s symptoms at that time.[47]

[43]           PCB 13-14

[44]           T 91

[45]           T 103

[46]           T 136

[47]           See the plaintiff’s evidence at T 75-76 that the plaintiff’s symptoms were increasing as adjustments were being undertaken to his stimulator

60        Taking into account my findings as to the medical evidence in this matter when considered in the context of the following matters which, in my opinion, speak in favour of the plaintiff’s credit, namely:

(i)	the plaintiff’s history of returning to work following both his hip surgery and his bilateral carpal tunnel procedures, which behaviour, in my opinion, is consistent with the presence of an excellent work ethic;
(ii)	the plaintiff’s attempt to rehabilitate himself by commencing a Diploma of Ministry which, in my opinion, provides support for the presence of a continuing work ethic in the plaintiff;
(iii)	the fact that there is no suggestion by the defendants that upon the plaintiff’s return to full-time work following his hip replacement surgery, the plaintiff was restricted in any way in his ability to work by reason of the presence of back pain;
(iv)	the fact that the defendants have undertaken surveillance of the plaintiff for a period in excess of eighty hours between January 2008 and March 2011 and that no surveillance material was relied upon by the defendants;

I am satisfied that I should accept the plaintiff’s evidence that his symptoms have incapacitated him in the manner which he has described.

Analysis as to the Plaintiff’s Capacity for Work

61        Having regard to the fact that I have preferred the analysis of those medical practitioners who have opined in favour of an organic condition as being responsible for the plaintiff’s presentation, the opinions expressed as to the plaintiff’s work capacity by medical practitioners who have opined that the plaintiff presents primarily with a psychological injury become largely irrelevant.

62        Adopting this approach to the assessment of the plaintiff’s capacity for work, I note that Mr O’Brien opines that the plaintiff has no capacity for any form of gainful employment; that Mr Brownbill opines that the plaintiff is presently incapable of undertaking suitable employment; that Dr Hales holds a similar view [48] and that Dr Horsley opines that the plaintiff’s capacity for work is likely to be a maximum of fifteen hours per week.

[48]           Dr Hales opines in his report of 30 March 2011 that the plaintiff “remains unfit to return to his pre- accident level of employment”. He also expressed the opinion at that time that very little had changed since he had authored his previous report. Given that in this report (PCB 66), Dr Hales had opined that the plaintiff was unfit to work in any physical capacity, I interpret Dr Hales’ current position as to the plaintiff’s capacity to work to be similar to that adopted by Mr O’Brien.

63        I am satisfied that the plaintiff’s pre-accident employment involved him working on average 34.22 hours per week during the period between 4 January 2004 and 5 December 2004 and that I should approach the analysis of the plaintiff’s pre-accident earning capacity on the basis of that position. It is accepted that the hourly rate which I should apply in determining the plaintiff’s pre-accident working capacity is $20 per hour. This generates a figure of $684.40 per week.

64        Having regard to my findings as to the plaintiff’s physical capacity, I have considerable doubt that he would have the capacity to work as a school nurse. I will employ the wage available to a school nurse however when applying the formula fixed by the Act to determine the plaintiff’s retained earning capacity as this approach is the one which is most generous to the defendants.

65        Having regard to the period during which the plaintiff’s incapacity has persisted, the absence of any suggestion by Dr Hales in his most recent report that it is unlikely that there will be any improvement in the plaintiff’s condition and the similarity of the positions expressed by Mr O’Brien and Mr Brownbill in this regard, I am satisfied that the plaintiff has established that his current incapacity for work is permanent.

66        I am satisfied that Dr Horsley’s opinion as to the plaintiff’s current capacity for work, namely that he is limited to fifteen hours per week, represents the upper limit of the plaintiff’s retained capacity for employment. In employment as a school nurse for fifteen hours a week, the plaintiff would generate a gross income of $376.95 per week. When this is compared with the plaintiff’s pre-

67        In my opinion, having regard to the plaintiff’s age and the relatively modest level of income which was available to him in his pre-accident employment; a loss to the plaintiff of more than forty per centum of his earning capacity for the foreseeable future must be considered as being a loss which is more than significant or marked and as being at least very considerable when judged by comparison with other cases in the range.

68        Given that he has discharged the burden of proof which is imposed by both Sections 134AB(38)(c) and (e) of the Act, the plaintiff is entitled to leave to bring proceedings for both pain and suffering and pecuniary loss damages.

69        I will hear the parties as to the precise order which is sought in the proceedings and also on the issue of costs.

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