Musai v Skilled Group Ltd
[2016] VCC 386
•14 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01557
| FATMIR MUSAI | Plaintiff |
| v | |
| SKILLED GROUP LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March 2016 | |
DATE OF JUDGMENT: | 14 April 2016 | |
CASE MAY BE CITED AS: | Musai v Skilled Group Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 386 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application for leave in respect of pain and suffering damages only – injury to low back – plaintiff remains in full employment – effectively no specialist treatment – plaintiff a witness of truth – whether burden of proof has been discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin QC with Mr C O’Sullivan | Zaparas Lawyers |
| For the Defendant | Mr P Elliott QC with Ms L Glass | Hall & Wilcox |
HIS HONOUR:
General background
1This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages only. In so doing, he relies upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. The physical injury relied upon is one to the low back. The plaintiff relies both upon the course of employment and an incident on 31 March 2009 (“the accident”). The occurrence of injury is not in dispute. The case is one of those that is typically described as a “range case” – see Transcript (hereinafter referred to as “T”) 14.
2 Mr T Tobin QC with Mr C O’Sullivan of counsel appeared on behalf of the plaintiff. Mr P Elliott QC with Ms L Glass of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
3 The case was conducted with a minimum of time wastage and in accordance with the recent Practice Note, including the provision of a Joint Court Book. The parties are to be congratulated for this.
Factual background
(a)The plaintiff’s background, training and employment prior to commencing work with the defendant and prior to the accident
4 The plaintiff is aged 33 years, he having been born on 23 July 1982. He is a married man with four young children. The plaintiff was educated to Year 12 level. He then worked for his father in a small business making leather jackets and also for one period as a packer. As no leave is sought in relation to loss of earning capacity, the amount of information required in relation to the plaintiff’s employment and earnings over the years is limited.
5 It would appear that the plaintiff commenced employment with the defendant in approximately 2008. The defendant is a labour hire company, and placed him at Pilkington Glass, later known as Viridian Industries. The plaintiff’s work involved him in working with containers holding sheets of glass. It is submitted that this work was heavy. In any event, as earlier stated, the occurrence of injury in the workplace was not disputed for the purpose of this application.
6 The accident occurred on 31 March 2009. The plaintiff was standing upon a ladder removing crossbars from a container. It was then that he felt pain in his lower back. Subsequently, when bent over and using a nail gun, he found that he could not straighten up because of back pain. He saw a doctor on-site. A couple of days later he returned to work and performed light duties. However, on Good Friday of that year, he received a call from a manager at Pilkington Glass to the effect that his services were no longer required.
7 It should be said that, whilst the plaintiff was born in Australia, he is of Albanian heritage and takes an active interest in matters to do with the Albanian community. As shall be discussed, this includes assisting with the welfare of Albanian youths.
(b) The plaintiff as a witness
8 The plaintiff was an impressive witness. I have no hesitation in accepting him as a witness of credit. Mr Rodney Simm, orthopaedic surgeon, examining the plaintiff at the request of the defendant, described him as presenting in a straightforward and co-operative manner. Mr David Brownbill, consultant neurosurgeon, examining the plaintiff at the request of his solicitors, described him as being alert, co-operative, without embellishment and appearing straightforward in his presentation. I agree with these observations and have no hesitation in accepting the plaintiff as a witness of truth.
(c) The state of the plaintiff’s health prior to the injury
9 I accept that the plaintiff had no prior history of musculoskeletal injuries or complaints. I accept that, prior to sustaining injury, the plaintiff was a very fit and strong man who attended a gymnasium virtually daily, performing quite demanding workouts. He also engaged in other physical activities. Prior to working for the defendant, he was in good physical condition, was taking no medication and was, to quote the history given to Mr Thomas Kossmann, orthopaedic surgeon, “extremely fit and well”.
(d) The injury, its diagnosis and treatment
10 Following the accident on 31 March 2009, the plaintiff saw a doctor on the worksite and was given Mersyndol Forte. He subsequently attended physiotherapy once a week for approximately four weeks. Ultimately, the plaintiff saw Dr Jim Demirtzoglou. This doctor did not like doing WorkCover matters, but organised a CT scan of the plaintiff’s lumbar spine, this being carried out on 7 May 2009. Because of the difficulty which arose with Dr Demirtzoglou, the plaintiff attended upon Dr John Meaney at the Langton Medical Centre on 1 June 2009.
11 In his report of 5 February 2010, Dr Meaney reported that the CT scan of 7 May 2009 revealed central disc herniation at L4-5, causing impingement of the thecal sac and slightly compromising the right and left L5 nerve roots. He referred the plaintiff to a physiotherapist, namely Mr Gerald Lee.
12 The plaintiff undertook a variety of treatment at the hands of Mr Lee, initially seeing him twice a week. There was some improvement over the first month, but there was then no further progress. Accordingly, physiotherapy treatment was suspended, the plaintiff continuing with some exercises at home. Ultimately, Mr Lee resumed treatment on 13 October 2009, by which time the plaintiff had returned to work on modified duties, but with a substantial increase in symptoms. There was little further improvement with the ongoing physiotherapy, Mr Lee claiming that the plaintiff did not attend on some occasions and later gave “absurd reasons” for not so attending. His treatment was again suspended on 14 December 2009. When cross-examined about the comments of Mr Lee, the plaintiff said that, at the time, he was very upset because the physiotherapy was not doing him any good and indeed he was in a lot more pain the following day – see T56.
13 The plaintiff resumed having physiotherapy with Mr Lee in 2015, having some five sessions when government funding was available. Those sessions were apparently more successful, the plaintiff describing them as “a lot better”. However, as the plaintiff has sworn in his affidavit of 23 February 2016, the improvement was temporary.
14 Returning to the plaintiff’s treatment at the hands of Dr Meaney, he participated in the plaintiff’s attempted return to work plan in September and October 2009. Overall, this was not successful, the plaintiff saying he could not work two days in a row on the limited hours of light duties because of exacerbation of pain.
15 Dr Meaney referred the plaintiff for another CT scan, this being carried out on 19 January 2011. The conclusion of the radiologist was as follows:
“The main abnormality is at L4-5 disc level demonstrating narrowing of the disc space with a broad based disc herniation causing pressure on the thecal sac and abutting but not displacing the right and left L5 nerve roots.
Bilateral multilevel mild facet joints osteoarthritis.”
16 The particular episode of low back pain which caused the plaintiff to attend Dr Meaney at this time seems to have involved his reaching up and lifting plastic chairs, followed by going to the gymnasium for a light workout. By 27 January 2011 he was improving. It would appear that the plaintiff attended upon Dr Meaney following exacerbation of back pain on 29 July 2013, this following a slip on wet stairs. An x-ray taken on 5 September 2013 was normal, but no further CT scan seems to have been performed. It would appear that the plaintiff also attended upon Dr Meaney in February 2014 with lumbar pain aggravated by flexion. I gather that he continues to attend the Langton Medical Centre for prescriptions. Whilst Mr Lee suggested to Dr Meaney referral to an orthopaedic specialist for an opinion, the plaintiff does not appear to have ever seen such a specialist. It would seem that the plaintiff also undertook five or six sessions of acupuncture, which was not of assistance.
17 The plaintiff has also been examined for medico-legal purposes. At the request of his solicitors, the plaintiff was seen by Mr Thomas Kossmann, orthopaedic surgeon, who reported originally on 29 May 2014. The plaintiff’s principal complaint was of low back pain extending into the left leg, telling Mr Kossmann that such pain was occasionally feeling better, but could be triggered by anything. For example, he referred to severe pain when leaning forward to wash his hands of a morning. He also complained of a dramatic change in his lifestyle since the accident. The diagnosis of Mr Kossmann was of discogenic and mechanical back pain experienced in the lumbar spine and on the basis of a central broad based disc herniation at the L4-5 level, causing impingement of the thecal sac and abutting, but not displacing, the right and left L5 nerve root, along with bilateral multilevel facet joint osteoarthritis. Mr Kossmann considered the plaintiff’s prognosis to be poor. He believed that the plaintiff would require further conservative treatment, along with pain medication.
18 Mr Kossmann saw the plaintiff for a second time, reporting on 10 November 2015. On this occasion the plaintiff stated that the pain, which was in the low back and extending to the left leg, was present all of the time, although there were occasions when it felt better. However, anything could trigger the pain again. He said that his pain was worse in the mornings and at night it intermittently wakes him. He also stated that he feels as if he is limping. By way of medication, he was taking Proxen 1000 and Nurofen when needed, these being for pain relief. He continued to claim that his lifestyle had changed dramatically since the accident. He was limited in undertaking household duties, also referring to the far more limited exercises and the like which he performed at the gymnasium. The diagnosis of Mr Kossmann remained much the same, although he also referred to the plaintiff having clinical signs of trochanteric bursitis of the left hip.
19 Mr Kossmann was of the view that the prognosis remained poor, pointing out that the plaintiff had suffered from discogenic and mechanical back pain for six years. He also stated that the plaintiff would have ongoing pain issues as long as he was working in physically demanding work. He considered that the plaintiff was likely to continue to suffer the consequences and incapacities of his back injury for the foreseeable future.
20 The plaintiff’s solicitors also arranged for him to see Mr David Brownbill, consultant neurosurgeon. The first consultation was on 1 October 2014. He noted that the plaintiff continued to work as a forklift driver. At this time, the plaintiff was not receiving any physical treatment and was taking Naproxen every one to three days. His back pain was present most of the time with fluctuating severity. His left leg pain occurred intermittently and was much improved. Mr Brownbill observed that radiological investigations demonstrated a single level lumbosacral spine intervertebral disc derangement at L4-5, with protrusion. Mr Brownbill was of the view that the plaintiff should avoid heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. He anticipated that some pain would continue in a fluctuating manner indefinitely.
21 Mr Brownbill saw the plaintiff for a second time on 16 December 2015. He noted that the plaintiff continued in employment as a forklift driver. He noted that the plaintiff was taking Naproxen, Panadeine Forte (about five a week) and occasional Nurofen. He was also using Voltaren cream. His low back pain was present all the time, with fluctuations being worse after increased physical activity or with leaning forward slightly, for example when shaving. His pain seems to have plateaued. Mr Brownbill observed that, at examination, the plaintiff had shown painful restriction of thoracolumbar spinal movements, but with no radiculopathy. He believed that the plaintiff’s condition had stabilised and was unchanged from that at the previous examination. He referred to a single level lumbosacral lumbar spine intervertebral disc derangement at L4-5 with protrusion. He also noted that the plaintiff was having intermittent days off work following exacerbation of pain. He thought that the plaintiff would continue to suffer the consequences and incapacities of a physical back injury into the foreseeable future, noting that the injury had affected his capacity to undertake his pre-injury employment to a marked degree. He was again of the view that the plaintiff’s described pain would continue in a fluctuating manner indefinitely.
22 The defendant has also organised medico-legal examinations of the plaintiff. Those of Dr Chris Baker, specialist in occupational medicine, are now out of date to a considerable extent, being reports of 9 September 2009, 10 September 2009 and 28 October 2009. Dr Baker considered that the mechanism of injury was consistent with the diagnosis of an L4‑5 disc bulge, and that the plaintiff had suffered an incapacity for work, whilst not being totally incapacitated. Dr Baker’s attention was largely focused upon a possible return to work plan. A brief note from him of 10 September 2009 does not take matters much further, although he referred to a statement, apparently from representatives of the establishment where the plaintiff worked, to the effect that this was considered to be “a sincere injury and claim”. A further report of 28 October 2009 from Dr Baker is again focused largely upon a return to work and suitable duties.
23 Dr David Barton, consultant occupational physician, saw the plaintiff on 25 January 2012. To a considerable extent, his report has also been overtaken by events. At this time, the plaintiff was working two or three days a week in the family’s leather store at a market. He was having some massage treatment monthly, and typically took approximately two Nurofen tablets per week. Dr Barton did not find any evidence of an ongoing physical problem, and considered the plaintiff’s condition to have stabilised. He did not link the plaintiff’s radiological findings to his employment. In this regard, he can be considered to be the only medical examiner expressing such a view.
24 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff at the request of the defendant on 13 October 2015. By this time, the plaintiff was working full-time as a forklift driver, but not doing any physical heavy work. In recent times, the plaintiff had been taking Naproxen 1000 daily. He was continuing to attend a gymnasium in an attempt to strengthen his back. When symptoms were severe, he was taking Nurofen Forte. The plaintiff told Mr Simm that his pain had been present essentially every day since 2009, although it fluctuated considerably. There had been days in 2015 when the pain had been so severe that he was not able to go to work. The pain occurs in the lumbar region, radiating around the left hip and down to the knee. The plaintiff also referred to nocturnal pain which made it difficult for him to sleep. He felt that there had been some slight improvement in the last year or two. In the opinion of Mr Simm, the plaintiff had L4‑5 disc-space narrowing, consistent with intervertebral disc degeneration, and associated with a central disc protrusion at L4‑5, which, in the opinion of Mr Simm, was not likely to cause true nerve-root irritation or compression. Mr Simm was of the opinion that the plaintiff had pre-existing lumbar disc degeneration at L4‑5. Presumably the damage caused in the accident had been, in Mr Simm’s opinion, sufficient to permanently compromise the structure of the disc, and the plaintiff has had symptomatic lumbar-disc degeneration without any period of sustained recovery thereafter. Thus, the plaintiff had an established pattern of relapsing lumbar symptoms. Treatment should be confined to conservative measures.
25 The diagnosis seems to be comparatively clear. The plaintiff had pre-existing asymptomatic degenerative changes at L4‑5. Leaving to one side any question of injury sustained during the course of employment, the occurrence of the accident caused a single-level lumbar intervertebral disc derangement. This produced symptoms and consequences which have persisted thereafter.
26 I am satisfied that those consequences are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Mr Brownbill has stated that the plaintiff’s pain will continue in a fluctuating manner indefinitely. Mr Kossmann has said that the prognosis is poor, and that the consequences and incapacities will continue for the foreseeable future. Mr Simm has said that the plaintiff’s condition will persist as described into the future. I am satisfied that the plaintiff’s consequences are permanent within the meaning of the Act.
27 I am also satisfied that the injury has occurred against the background of pre-existing lumbar disc degeneration, and thus is in the nature of an aggravation. However, I also accept that the plaintiff was previously symptom-free and was a strong and very fit man. Thus, the symptoms and restrictions from which he suffers result directly from the relevant aggravation.
28 Pursuant to s134AB(38)(h) of the Act, psychological or psychiatric consequences of the physical injury are not to be taken into account. There is little suggestion that there are any of these of note. There was nothing in the plaintiff’s presentation in the witness box to suggest that any exist.
(e) Other developments since the injury
29 I have set out the history of the plaintiff’s treatment. As far as employment is concerned, the plaintiff resumed employment pursuant to a return to work plan on 29 September 2009, working on light duties for effectively six hours per week. However, this involved some bending and twisting, and he was forced to cease because of pain after a few days. He then did some casual work for his father, this relating to the operation of the leather-goods store at a market. Subsequently he worked for a few months with Bread Solutions, a bakery, but was forced to stop because of the repetitive movements involved.
30 In approximately mid-2012 he commenced his present employment with a labour-hire firm who placed him with an entity called Visy Beverages as a forklift driver. This has worked out well, because, effectively, his superior is his uncle. His employment is that of a casual. Apart from forklift driving, he does some sorting of plastic bottles, this involving bending and twisting, and causing some pain. He also does some paperwork in the office, and is able to take a break in this way. He currently does 12‑hour shifts, working four days one week and three days the next. The combination of some forklift driving, some sorting, and some administrative duties, seems to be satisfactory, and doubtless working for his uncle is, as he claims, helpful. At times, during the period in which he has been working at Visy Beverages, the plaintiff has worked in the vicinity of 60 hours per week.
31 In 2012 the plaintiff went to Europe, and in particular to Albania and Macedonia, for a three-month holiday and in order to attend a wedding. Whilst there he went to a soccer match, and used to attend soccer matches in Melbourne, although he now rarely attends. The plaintiff does some socialising, and, to an extent, is involved with a youth group. This is based at a gymnasium and is an endeavour to give young people (and particularly those of an Albanian heritage) something to do and keep them out of trouble.
32 The plaintiff has suffered two incidents of exacerbation of his back pain. One occurred in January 2011 when he was lifting some chairs. On another occasion, in July 2013, he slipped on some wet stairs at his house. It was not argued that either of these incidents had any significant ongoing impact upon his back condition.
33 The plaintiff continues to attend at Langton Medical Centre and obtains medication from there. He ceased taking Naproxen because it upset his stomach, and has been taking a different anti-inflammatory, namely Celecoxib. This helps reduce his pain, and is of some assistance in relation to sleeping. As stated, he returned to the physiotherapist, Mr Lee, when funding for a further five treatments was made available.
Ruling
34 In this matter, I am satisfied that, when the relevant comparison is made, the statutory test has been satisfied and that the plaintiff’s pain and suffering consequences could be fairly described as being more than significant or marked and as being at least very considerable. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance.
(a)As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, in serious injury applications the credit of the applicant is of great importance. This statement was referred to and repeated more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167. This can be particularly so when some of the indicia frequently referred to in cases such as Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 are not present. Credit may be seen to be even more important in a situation where, for example, there has not been a substantial amount of treatment or if a plaintiff is not consuming a particularly large amount of medication.
As I have previously stated, I find the plaintiff to be a witness of truth. I accept his evidence as to the symptoms and consequences of injury from which he suffers.
(b)I accept the plaintiff’s evidence that he has pain all the time. It never goes away – see his affidavit of 23 February 2016. The pain is at its worst in the mornings, and he finds it difficult even to get out of bed and go to the toilet. There is also sharp right-leg pain which occurs often and when he is driving his car or a forklift. I accept this. Constant pain is one of the indicia referred to in Haden Engineering and subsequent cases.
(c)Age is another factor which can be taken into account. The plaintiff is aged thirty-three years. There is nothing that would suggest that his life expectancy is other than normal. He has already been suffering this pain for a period of seven years, and it would appear that he will continue to suffer it for decades to come.
(d)As the plaintiff told Mr Simm, he has nocturnal pain which can make it difficult for him to sleep. The Celecoxib which he takes, and which is prescribed medicine, helps reduce his pain at night and helps in this regard. However, he has sworn that, when he does fall asleep, he is awoken most nights because of back pain. Interference with sleep is another factor of significance referred to in Haden Engineering and subsequent cases.
(e)I accept that the back pain affects the plaintiff’s everyday life in a number of ways. In particular, it makes it difficult for him to play and interact with his four young children. For example, he finds it difficult and painful to bend over and lift his youngest child. He suffers back pain after such activities as mowing lawns or washing his car. As he has said to more than one doctor, he experiences sharp back pain in the morning, and this makes it difficult for him to lean forward over the hand-basin in his bathroom and do such things as shave.
(f)Attendance at the gymnasium was a significant part of the plaintiff’s life. He attended virtually on a daily basis, and used to perform quite demanding exercises and weight-lifting. He now attends approximately three times per week, and can only perform the lifting of lighter weights. He does this in an effort to strengthen his back. He also attends the gymnasium for the purposes of the assistance that he provides in relation to looking after young people. However, the level of enjoyment which he gets from going to the gymnasium is nowhere near the level which he enjoyed prior to the injury. As he said, “I loved it” – see T65.
(g)The plaintiff can no longer play tennis. With friends and other members of the Albanian community, he used to participate in a type of annual tournament which coincided with the Australian Open being played. Further, throughout the year there would be matches on a fortnightly to monthly basis – see T59. He has attempted to play once since the accident, but rapidly threw his racquet down because he simply could not play.
(h)The plaintiff has engaged in some socialising, but has sworn that he also avoids many social events because of his back pain – see T35.
(i)The plaintiff is engaged in full-time employment, and is probably earning more money now than he was capable of earning prior to injury. However, he may be in a fortunate position, in that it is his uncle who is essentially in charge of him. I accept that he is able to mix the type of work which he is performing and essentially take breaks when required. As it is, he misses days because of aggravation of back pain. He is a casual employee. I appreciate that, as far as security of employment is concerned, he was probably in much the same position prior to suffering injury, but the fact of the matter is that he is now to some extent protected in relation to the duties performed, but realistically has no security of employment. When the evidence is considered as a whole, in accordance with the decision in Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, it does not seem to me that the plaintiff’s employment capacity since the injury should play a major part in the consideration of his pain and suffering consequences.
35 Having considered all of the above, I am of the opinion that the pain and suffering consequences of the impairment or loss of body function which the plaintiff has in relation to his back are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than “significant” or “marked” and as being at least “very considerable”.
Conclusion
36 The plaintiff is successful. He is a witness of truth who has discharged the burden of proof. Leave is given to him to bring proceedings in which he seeks pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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