Muscat v Health Force Consulting Pty Ltd, Houston Management Services Pty Ltd and Houston
[2012] VCC 28
•14 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00336
| STEVEN LAWRENCE MUSCAT | Plaintiff |
| v | |
| HEALTH FORCE CONSULTING PTY LTD | First Defendant |
| and | |
| HOUSTON MANAGEMENT SERVICES PTY LTD | Second Defendant |
| and | |
| GARY JOHN HOUSTON | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 6 February 2012 | |
DATE OF JUDGMENT: | 14 February 2012 | |
CASE MAY BE CITED AS: | Muscat v Health Force Consulting Pty Ltd, Houston Management Services Pty Ltd and Houston | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 28 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – pain and suffering consequences only – injury to low-back – whether the pain and suffering consequences of the plaintiff’s injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being more than significant or marked, and as being at least very considerable
LEGISLATION CITED – Accident Compensation Act 1985 s.134AB, s.135AB(19)(a), s.134AB(37), s.134AB(38)(b), s.134AB(38)(c)
CASES CITED – Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; Kelso v Tatiara Meat Co. Pty Ltd [2007] VSCA 267; Dwyer v Calco Timbers Pty Ltd (No. 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Goldberg | Robinson Gill |
| For the Defendants | Ms R Kaye | Hall & Wilcox |
HIS HONOUR:
1 Steven Muscat alleges that he suffered an injury to his low-back in the course of his employment with the first defendant. He seeks the leave of this Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
2 His right to do so is governed by the provisions of s.134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by him is a “serious injury”.[1]
[1]Section 135AB(19)(a)
3 The term “serious injury” is defined in sub-s.134AB(37) of the Act insofar as is relevant, as a “permanent serious impairment or loss of a body function”.
4 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33, paragraph [18] to [19]
5 The term “serious” is to be satisfied by reference to the consequences to Mr Muscat of any impairment or loss of the function of his lower spine with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3]Section 134AB(38)(b)
6 The impairment or loss of a body function shall not be held to be “serious” for the purposes of this application, unless the pain and suffering consequences 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”.[4]
[4]Section 134AB(38)(c)
7 The matters in issue and to be determined in this application are:
(a) whether Mr Muscat suffered a compensable injury to his low-back in the course of his employment with the first defendant;
(b) what are the consequences of the injury to him; and
(c) whether the consequences of the injury can fairly be described as more than “significant” or “marked”, and as being at least “very considerable”.
8 The application relates solely to pain and suffering consequences of the injury.
9 The parties were in agreement that Mr Muscat had been employed by the first defendant at relevant times. It appears that there was some doubt as to the identity of the employer at the time proceedings were issued and the additional two defendants were included. No application was made to discontinue against either of them. For simplicity, in these reasons I shall refer to Health Force Consulting Pty Ltd as the defendant.
Background
10 Mr Muscat is aged forty-six years. He is married with adult children. He was educated in Melbourne, completing Year 9 at Caulfield Technical School when aged fifteen years. He has no other formal education or training.
11 After leaving school, he worked in manual jobs, including carpet laying, and installing maintaining and repairing office equipment such as typewriters, photocopiers, printers and the like. He performed this latter type of work for various employers over a period of some twenty-seven years, which included three years when he operated his own business. That business was unsuccessful.
12 Mr Muscat had suffered from an episode of low-back pain when in Queensland in about 1995. There were no ongoing symptoms from this incident.
13 In about 2003, Mr Muscat’s son was diagnosed with and died from cancer. At that time, Mr Muscat was treated for depression, anxiety and stress. He ceased employment for a time but later obtained employment with Panasonic, with whom he worked for about eighteen months.
14 Prior to commencing employment with the defendant in March 2006, Mr Muscat had consulted his general practitioner on occasions in relation to low-back pain. Such complaints were made in May 2004, August 2004, November 2004, May 2005 and August 2005. The clinical notes from the Liberty Avenue Clinic at Rowville were tendered.[5] The notes indicate that the complaints of back pain were intermittent. Between dates on which low-back symptoms were referred to, there were other attendances at the clinic for unrelated issues at which there was apparently no mention of any back problems.
[5]PCB 130-135
15 Dr Nicolettou, of that clinic, reported in August 2005 there had been some referral of pain to Mr Muscat’s right lower limb. On that occasion, he had diagnosed him with a “possible lumbar disc injury” and prescribed physiotherapy. He did not consider that there was any indication for a scan of Mr Muscat’s spine, given that neurological examination was normal.[6]
[6]PCB 57
16 Shortly prior to commencing work with the defendant in March 2006, Mr Muscat had applied for a job with Australia Post, an application which required him to undergo a medical examination. He underwent that examination and was later offered employment with Australia Post. However, by the time that job had been offered to him, he had accepted employment with the defendant.
17 Mr Muscat’s employment with the defendant involved a good deal of physical work, including the loading and unloading of trolleys, pushing and manoeuvring loaded trolleys and transferring prepared meals to various healthcare centres. The work involved repetitive movements of his back, bending, flexing, twisting and stretching when unloading and loading containers known as “gastros” on and from trolleys. He suffered low-back pain in early July 2006. He recalls suffering from some symptoms on a Thursday and increased symptoms on the following day. He rested over the weekend and then visited his general practitioner at the Liberty Avenue Clinic on 17 July 2006. He was certified unfit for work and referred for physiotherapy. The note taken by his general practitioner on that occasion[7] refers to him already taking Herron anti-inflammatories, and that he would continue with these. He acknowledged that he had had several earlier instances of low-back pain but denied that any of them were ongoing. He could not recall already being prescribed Herron anti-inflammatories before the attendance on his general practitioner in July 2006. That medication may have been available over the counter at pharmacies or even supermarkets without prescription from a medical practitioner.
[7]PCB 135
18 I am satisfied that Mr Muscat did suffer from relatively isolated complaints of low-back pain in the years leading up to July 2006. It is clear from the medical evidence (to which I will later refer) that he suffered from pre-existing degenerative changes to his lumbar spine. It is likely that these degenerative changes resulted in him suffering intermittent strains of his low-back with accompanying symptoms of pain. I am satisfied that these were relatively short-term in nature and did not, at least up until July 2006, interfere with his work capacity other than for brief periods.
Post-Injury
19 Following his attendance at the Liberty Avenue Clinic in July 2006, Mr Muscat remained off work for some time. He suffered from constant low-back pain. He began to experience shooting-like pains into his left buttock and left leg which were, at times, severe and disabling.
20 His general practitioner arranged for a CT scan, performed on 13 October 2006. The scan was reported as showing a very small disc bulge at the L4-L5 level which could “potentially” irritate the budding left L5 nerve root, but which did not result in any significant central canal or exiting foraminal stenosis.[8]
[8]PCB 40
21 He attempted a return to work with the defendant but was unable to continue as a consequence of ongoing persistent low-back pain and left leg pain. The severity of this pain fluctuated unpredictably.
22 He lodged a WorkCover claim in early August 2006, which claim was accepted. He received weekly payments of compensation for 130 weeks.
23 In December 2006, he was referred to Dr Clayton Thomas, a pain management and rehabilitation specialist. He participated in a rehabilitation program which did not result in any improvement of his low-back symptoms. He remained under the care of Dr Thomas for most of 2007. In August 2007, Dr Thomas arranged for an MRI scan, which was reported as showing no disc protrusion or foraminal narrowing between the levels of T12-L1 down to L4‑L5. There was a small disc bulge reported at L5‑S1, which was described as “non-neural compressive”. The report concluded that there was no neural compromise shown.[9]
[9]PCB 41
24 During his period under the care of Dr Thomas, Mr Muscat was treated with a number of strong prescription analgesic medications, including Baclofen, Panadeine Forte, Valium, Norspan patches, and later Durogesic patches. Pain in his low-back and into his left buttock and leg continued. Those symptoms fluctuated and were frequently made worse by activity. He became increasingly anxious and depressed because of ongoing problems he was having with his back and leg and his inability to return to work. He concedes that his psychological and emotional health deteriorated markedly.[10] In due course, he was referred for counselling and was prescribed anti-depressant medication, which he has continued to take.
[10]PCB 14
25 In about April 2007, Mr Muscat changed general practitioners and since then has attended upon various different doctors at the Wellness on Wellington Clinic in Rowville. It is there that he has frequently been seen by Dr Ringelblum.
26 In mid-2008, he attended a security training course and successfully obtained a security licence. Thereafter, he obtained some casual and part-time security work. He was required to drive vehicles. He found that driving, getting in and out of vehicles, walking, standing for long periods and negotiating steps caused havoc with his back. He was unable to cope with this work because of back pain, and ceased after approximately five months.
27 He continued to take Panadol Osteo, Effexor (anti-depressant) and also used Durogesic patches.
28 In June 2011, he obtained employment as an equipment assessor with Mobile Repairs Pty Ltd in and around Croydon. His duties are light and include the inspection and assessment of wheelchairs, scooters, bed lifting hoists, walker frames, commodes, hospital beds and other similar equipment. Mr Muscat carries out visual checks of the equipment for faults, breakages and the like, and makes minor repairs. More major repairs and overhauls are carried out by sub-contractors.
29 He performs these duties largely on his own and is able to dictate his own working pace and able to take breaks when he needs to. About one third of his working time is spent at a computer entering various information. He is unable, because of back pain, to remain seated for more than an hour or to remain standing for a similar period. On occasions, he is required to deliver equipment to clients at various locations in and around Melbourne. Although he has been able to cope with such duties, deliveries can be physically very difficult for him as a consequence of back pain. At times, his work duties cause serious flare-ups with low-back pain and left leg pain. From time to time, he has been forced to take time off work as a consequence.
30 At times, he has not coped with his pain and has used cannabis and alcohol in an attempt to control pain. His mood and behaviour became unpredictable, placing great strain on his relationship with his wife and adult children.
31 Counsel for Mr Muscat tendered a list of medication prescribed for him by the Wellness on Wellington Clinic between April 2007 until December 2011.[11] It shows regular prescriptions of painkilling medication, including Panadeine Forte, Norspan patches, Valium, Durogesic patches, Celebrex (anti-inflammatory), Baclofen (muscle relaxant), Panadol Osteo and anti-depressant medication consisting of Avanza, Effexor and Lexapro.
[11]PCB 123-125
32 Mr Muscat ceased the Norspan or Durogesic patches for some time from 2010 because he believed some of his behavioural problems involving increased anger and aggression were side effects of that medication. Nevertheless, as a consequence of ongoing low-back pain, he has since resumed Durogesic patches earlier this year
Diagnoses of Injury
33 Mr Muscat tendered reports from treating practitioners, Dr Nicolettou, Dr Ringelblum and Dr Thomas. In addition, medico-legal reports were tendered from Mr Khan (orthopaedic surgeon), Dr Serry (psychiatrist), Mr King (orthopaedic surgeon), and Dr Horsley (occupational physician). He also tendered a report from Dr Robert Lefkovits (physician), who had provided an impairment assessment report to the WorkCover claims agent.
34 Dr Ringelblum gave oral evidence and was cross-examined.
35 The defendant tendered reports from Dr Mutton (occupational physician), Mr Shannon (general surgeon) and Mr Michael Dooley (orthopaedic surgeon).
36 In many respects, the medical evidence was not contentious. There was little issue that the Mr Muscat had suffered from pre-existing degenerative changes in his lumbar spine.
37 The overwhelming medical opinion was that Mr Muscat:
(a) had aggravated those pre-existing degenerative changes to his lumbar spine in his employment with the defendant;
(b) as a consequence, he had experienced increased pain; and
(c) it was inadvisable for him to consider returning to employment, such as he had with the defendant, or any other employment involving lifting, bending or twisting on a repetitive basis.[12]
[12]Dr Thomas at PCB 46; Dr Nicolettou at PCB 58; Dr Ringelblum at PCB 69 and 66; Mr Khan at PCB 83; Mr King at PCB 97; Dr Horsley at PCB 105 and 106; Dr Lefkovits at PCB 128; Dr Mutton at DCB 14 and Mr Shannon at DCB 23, 37 and 38.
38 The CT scan taken on 13 October 2006 was reported as showing a very small disc bulge at L4-L5 which could potentially irritate the budding left L5 nerve root.[13] The MRI scan taken nearly a year later found disc desiccation at the L1-L2 and L4-L5 levels, but no disc protrusion or contact with any nerve root was reported. I am satisfied that the CT and MRI scans show evidence of disc degeneration and I accept the medical opinion that it was pre-existing. I am not satisfied that Mr Muscat suffered any frank prolapse or any associated neurological injury at the lumbar level in the course of his employment with the defendant.
[13]PCB 40
39 In September 2007, Dr Thomas thought that Mr Muscat clearly had an incapacity to his lumbar spine and he rated this incapacity as being quite significant, but not total. He did not think there was anything else medically that could be done to assist him outside of generalised support.[14] Dr Thomas, in his letters to the general practitioner, acknowledged that Mr Muscat was suffering from significant low-back pain and required the strong pain relief prescribed. He does not, however, proffer any other specific diagnosis of the injury to his low-back.
[14]PCB 46
40 Dr Nicolettou described the injury as being a low-back soft-tissue strain caused by the work in question and exacerbation of a lumbar disc degenerative condition.[15] This was on a background of what appears to be previous and ongoing degenerative disease of the lumbar spine discs. He provided a report dated 24 February 2009 but does not appear to have seen Mr Muscat since 2007. His opinion then was that Mr Muscat would make a full recovery from the soft-tissue strain and from the exacerbation of the lumbar disc degenerative condition. However, he considered that the pre-existing degenerative lumbar disc disease was likely to deteriorate with time. He considered that he was totally incapacitated from previous employment and that this was in part due to the injury and in part due to the fact that he had degenerative disease in his lumbar discs. Even if the injury fully healed, he thought it was unlikely that Mr Muscat would ever return to any work that involved repeated bending at the back or lifting because of his degenerative disease.
[15]PCB 57
41 Dr Ringelblum, in July 2010, reported that Mr Muscat’s back pain was caused or aggravated in July 2006 when he repeatedly bent and twisted his back whilst lifting trays of food. He considered that there was a bulge at the L4-L5 disc, although he had not sighted the films or report concerning this.[16]
[16]PCB 68-69
42 In December 2011, Dr Ringelblum reported in similar terms.[17] He thought, in the long-term, Mr Muscat was more likely than others to suffer back pain and problems in the late, middle and old age. He considered that surgery was presently not required, but it was possible that surgery would be required in the future. He considered he would not return to his previous employment and, to that extent, was partially incapacitated in respect of future employment. He should only work in jobs that would not expose him to the risk of further back injury and that did not involve repeated bending, twisting or lifting. He required the capacity to regularly and preferably freely change from sitting to standing/walking positions.[18]
[17]PCB 66
[18]PCB 66
43 Dr Ringelblum gave oral evidence that it was clear that Mr Muscat had significant back pain and this would affect him lifelong. He considered that this was organic back pain.[19] However, in addition, it was clear to him that there were psychological problems and that it was very difficult to delineate how much that pain is exacerbated by his psychological state and how much his psychological state is exacerbated by his back pain. He considered that he had significant back pain which significantly restricted his daily function. Much of his back pain was due to organic causes. Some was due to psychological causes, but he was not able to delineate between the two in terms of percentages. However, he was able to say that if there were no psychological issues, there would still be significant back pain.[20]
[19]T 75
[20]T 75
44 In cross-examination, Mr Muscat’s prior history of complaints to the Liberty Avenue Clinic of backache from time to time from 2004 was put to Dr Ringelblum. Knowledge of that history did not cause him to amend the views expressed in his reports. He stated that he could not distinguish between pain that was due to his psychological state and pain due to a physical injury. The two had impacted on each other. There was no doubt that his pain had aggravated his depression and his depression had made his pain significantly worse. It was due to a combination of both.[21]
[21]T100-101
45 In November 2009, Mr Khan, orthopaedic surgeon, saw Mr Muscat at the request of his solicitors. He apparently had seen the report of the CT scan but made no mention of the MRI scan. He concluded that Mr Muscat did sustain an injury to his lower back during the course of his occupation on or about 13 July 2006, in that he had, as a consequence of the repetitive strenuous work involving bending, twisting and turning of his spine, developed symptoms of flare-up of disc degeneration with discogenic pain at the L4-L5 level associated with referred pain down the left side of the back and intermittently down the left leg. He described that pain as chronic.[22] He considered that the condition was substantially stabilised at that time and that he continued to need medication, as well as anti-depressant tablets. He was likely to require continuation of pain management for his residual chronic pain as a result of his injury. He had limited work capacity.
[22]PCB 82-83
46 Mr Kevin King, orthopaedic surgeon, saw Mr Muscat in September 2011 at the request of his solicitors. Accepting that symptoms of back pain came on, on a particular day at work whilst doing moderately heavy repetitive work, and accepting that there were “no significant problems with backache in the past”, Mr King thought it was a reasonable clinical assumption that the onset of back pain was related, at least in part, to the work that he was doing on that particular day. The mild degenerative changes in his lumbar spine had made him more susceptible to the onset of back pain. The work that he was doing on that day had precipitated the onset of symptoms in a previously mildly degenerate but symptomless spine. He considered that the work that he was doing has therefore been a significant factor in the persistence of his back pain ever since. He considered it was reasonable to assume that approximately half of his current back pain radiating into the legs was a result of superimposed stress at work and the other half of his symptoms were due to pre-existing, normally developing middle-age degenerative changes. He had been left with chronic impairment of low-back function of moderate severity and had a restricted work capacity.[23] Mr King considered there was no indication for surgery.
[23]PCB 97
47 The history taken by Mr King was that for most of Mr Muscat’s work history with office equipment, it was busy, active work that he had managed without trouble. Mr Muscat told him of a few minor bouts of back pain over a period of some years, but without ever having time off work. The history was that backache was never a significant problem to him.[24] This history, or lack of history of significant earlier back pain, was consistent with Mr Muscat’s evidence which I accept.
[24]PCB 94
48 In October 2011, Dr Horsley, occupational physician, considered that Mr Muscat suffered from mechanical back pain and that he had symptoms suggestive of radicular pain. She found a reduction in muscle bulk in the left thigh and calf without any other specific radicular features. She considered that his symptoms were likely to persist and that he would continue to have a restricted work capacity in terms of reaching, pushing, pulling, working in confined spaces, lifting of items greater than 10 to 12 kilograms, and avoidance of repetitive bending, lifting and twisting. She appears to have accepted that he had a reduced sitting, standing, walking and driving tolerance. She noted his current employment as an equipment inspector working 37.5 hours per week, and she had some concerns that the job may not have been within the restrictions outlined. Nevertheless, she thought there were a number of jobs identified by vocational assessors, such as electrical equipment technician, security control - gatehouse, customer service, warranty office and electrical equipment and sales assistant, which were within his capacity.
49 Dr Mutton, occupational physician, saw Mr Muscat in February 2007 at the request of the claims agent. He had been provided with a surveillance report, log and video. Dr Mutton comments that the video shows Mr Muscat undertaking a range of activities that would suggest that he has very little in the way of ongoing back disability. He considered that the video showed him riding a motorcycle without any impediment and, more importantly, that he was seen to do a number of car repairs, lying on his back, lying on his side and getting into awkward positions, and working under the wheel arch of the motor vehicle.
50 The film in question was shown to Mr Muscat during cross-examination. It was taken on 12 November 2006, approximately five months after the injury. I have, since the hearing, watched the video in entirety. It shows Mr Muscat with another gentleman performing work on a motorcycle. Mr Muscat is seen to be cleaning the motorcycle and from time to time he leaned forward, briefly flexing his lumbar spine to a minor degree. He walked normally and without any limp. At no time did the video show Mr Muscat work on any car, lie on his back, lie on his side or get into any awkward position working under any wheel arch of a motor vehicle. It is correct that the other gentleman depicted in the film did adopt certain positions which would fit the description provided by Dr Mutton. It is clear to me that Dr Mutton has incorrectly identified that gentleman as being Mr Muscat. It is clear that Dr Mutton has taken the film and the actions and positions adopted by the other gentleman into account when forming his opinion concerning Mr Muscat’s condition. This was plainly a mistake and counsel for the defendant did not seek to argue otherwise. Accordingly, I consider that I can place little, if any, weight on the views adopted by Dr Mutton in February 2007.
51 Mr Shannon, orthopaedic surgeon, saw Mr Muscat in September 2008 at the request of the claims agent. He considered that pre-existing degenerative change at the L4-L5 level may well have been aggravated or precipitated by the lifting incident at work. He considered that there was no evidence of radiculopathy. Mr Shannon had been given a copy of the report from Dr Mutton referred to above. It is clear that Mr Shannon placed weight on Dr Mutton’s description of the video evidence. On that basis, Mr Shannon was of the view that it is:
“… difficult to imagine that his claimed incapacity relates significantly to his work-related injury.”[25]
[25]DCB 23
52 Mr Shannon considered he was by no means totally incapacitated and could probably work on light duties. He thought it was reasonable for there to be lifting restrictions up to 10 kilograms. However, for the reasons referred to above, Mr Shannon’s views are, at least in part, based on a misunderstanding as to what the surveillance film showed.
53 Mr Dooley, orthopaedic surgeon, saw Mr Muscat in December 2011 at the request of the defendant’s solicitors. He was not provided with the surveillance film. He considered there had been a mild loss of lumbar spine function as a result of the compensable injury and he thought that this loss would persist for the foreseeable future. He expected Mr Muscat would experience intermittent low-back pain and occasional lower limb pain. He thought he would be best to avoid regular, heavy physical activity or regular activity involving a lot of bending or lifting. He considered that he would be capable of carrying out a wide range of light physical work and clerical duties.[26] He accepted that Mr Muscat had aggravated underlying degenerative disc disease in his lumbar spine and considered that his psychological condition was contributing significantly to his ongoing symptomatology. His pain and his level of analgesic intake were greater than he would have expected for a soft-tissue injury of the lumbar spine.[27]
[26]DCB 37-38
[27]DCB 37
54 I am satisfied that Mr Muscat suffered a compensable injury to his lumbar spine in the course of his employment with the defendant. I accept that he had pre-existing degenerative disease which predated his employment with the defendant. However, I accept that such disease was largely asymptomatic until July 2006. Clearly, he did have some prior incidents of low-back pain but I accept Mr Muscat’s evidence that such flare-ups were relatively brief and did not interfere with his ability to work on a full-time basis in a variety of manual jobs. On the balance of probabilities, I find the nature of the work performed by him in about July 2006 has resulted in an aggravation of pre-existing degenerative changes to his lumbar spine with resultant pain and restriction of movement.
55 With regard to the video tendered, I am of the view that it does not advance the case of the defendant in that it does not depict Mr Muscat performing any act or manoeuvre inconsistent with his evidence.
Consequences of Injury
56 Counsel for the defendant submitted that the evidence disclosed that the pain and suffering consequences of Mr Muscat’s impairment or loss of function of his lumbar spine was not, when judged by comparison with other cases in the range of possible impairments or losses of such body function, fairly described as being more than “significant” or “marked” and as being at least “very considerable”. Counsel for the defendant brought to my attention a number of evidentiary matters:
(a)Mr Muscat had returned to work on two occasions since the onset of symptoms in July 2006. Firstly, he had undertaken and completed a course as a security guard and obtained employment in that field for about five months. It was uncontested evidence that he left that work because it aggravated his low back pain. Secondly, since June 2011, he has been employed full-time as an equipment assessor involving a range of duties, including inspection of equipment, deliveries of equipment, paperwork and work involving transfer of data onto a computer. From time to time, he is required to manhandle beds during the course of deliveries. He has been able to cope with such employment.
(b)He is able to perform a number of gardening activities, including mowing of the lawn and the use of a Whipper Snipper.
(c)He rides a motorcycle as his normal means of transport.
(d)He has been able to attend to various car repairs, including being able to change the muffler on his wife’s motor vehicle.
(e)He is able to partake in a number of household duties, including vacuuming and mopping, which, she submitted, were at the heavier end of the spectrum of household duties.
(f)He has been able to undertake a number of items of maintenance in regard to a boat owned by him, including the removal of the floor of the boat.
(g)He is able to lift and carry items, including cases of beer on occasions. He is able to lift items up to and past shoulder level.
(h)He has performed various tasks using a power drill, a power saw, a power sander and a manual saw and had performed such tasks since Christmas 2011. In addition, he has been able to build a wheel for use in moulding clay.
(i)He has been able to attend to repairs and servicing of his motorcycle, involving some bending and squatting on a number of occasions. Although he gave evidence that his involvement in such activities caused later pain, that level of pain had apparently not deterred him from continuing to perform such activities.
57 Counsel for the defendant submitted that I should not look at these activities individually, but that I should look at the totality of the evidence in determining whether Mr Muscat had made out his case. I accept that that is the correct approach.
58 Counsel for Mr Muscat submitted that the consequences of his injuries were indeed at least very considerable.
59 It was submitted that his capacity for work had been significantly and permanently impaired. He did not submit that Mr Muscat was unable to work, but that the range of duties that he was able to perform had been reduced significantly by his injuries. He is now limited to relatively light duties, complicated by the fact that he is unable to sit for periods exceeding an hour without a break.
60 I accept that, in normal circumstances, Mr Muscat would have anticipated working until a normal retirement age. Although there is no medical evidence that he will not be able to continue in his current occupation, I consider it relevant to pain and suffering consequences of injury that he has a reduced range of employment options as a consequence of his injuries. In the event that he lost his employment for any reason, his prospects of finding alternative employment must, in all the circumstances, be reduced. He would find it more difficult to find alternative employment than would have been the case but for his injuries.
61 Mr Muscat’s evidence was that his recreational pursuits have been significantly impaired as a consequence of his injuries:
(a)Prior to his injury, he played golf regularly and had done so since he was a teenager. It seems he has not played since.[28]
(b)He owned a boat and enjoyed boating and fishing. His evidence was that he had last used his boat in about February 2009 and found it difficult to launch, retrieve and remain in the boat in open water, because of the problems caused with his back.[29]
(c)He has difficulties with bushwalking, which he previously enjoyed, mainly in the Churchill National Park. He finds it difficult to negotiate hilly, sloping, uneven terrain and broken surfaces. He is only able to handle such conditions for short periods of up to about an hour before experiencing symptoms in his back and left leg.
(d)Prior his injury, he owned a 900-cc motorcycle, which was relatively large and heavy. Since his injuries, he tried to ride that motorcycle a couple of times but was unable to do so because it was too heavy and he was unable to lift and control it as a consequence of problems with his back and leg. He now rides a smaller bike as his main means of transport. He rides it to and from work (twenty minutes each way) along good quality roads. Longer trips on his motorcycle are more difficult for him, especially if the roads are of poorer quality or if traffic is congested. Prolonged periods of riding a motorcycle caused him increased back pain.[30]
(e)He suffers from constant pain in his low-back, with referred pain in the left buttock and leg. He has been required to take powerful, prescribed, analgesic medication regularly. The level of his pain was sufficient to cause him to turn to cannabis and alcohol as a means of controlling it.
(f)He is presently on Fentanyl (Norspan) patches, which he attaches to his upper arm. They are replaced every two or three days. These is strong narcotic, morphine-based medication. He has, from time to time, attempted to dispense with the need for them. He was, at one stage, of the view that they caused side-effects, consisting of increased events of anger, and has attempted to dispense with them. He experienced increased levels of pain and resumed that medication in late 2011. I consider this to be a real indication as to the level of pain suffered by him.
[28]PCB 16
[29]PCB 16
[30]PCB 38-39
62 It is correct that in the clinical notes of the Liberty Avenue Medical Centre, there is reference to Mr Muscat already taking Herron anti-inflammatories at the time that he attended that centre in July 2006 with complaints of lumbar back pain. Mr Muscat could not recall having taken such medication at that time. The report of Dr Nicolettou indicates that in August 2004, he was prescribed analgesics and anti-inflammatories following an episode of low-back pain, but there is nothing to indicate any further prescription following that time. The clinical notes of that centre were tendered.[31] There was nothing to indicate any later prescription of medication for his back, although it was possible that Herron anti-inflammatories might have been available over the counter without prescription at that time or obtained by him at some earlier time. In any event, I accept that the plaintiff did have incidents of low-back pain prior to July 2006 but that such events involved a relatively short period of discomfort and were quite different to the symptoms of low-back pain and leg pain suffered by him since July 2006. I accept that he has continued to suffer from ongoing persistent low-back pain which radiates into his left buttock and left leg. I accept that he is never free of pain, notwithstanding the use of powerful analgesic medication.
[31]DCB 130-5
63 Whilst I accept the submissions of counsel for the defendant that Mr Muscat is able to work and to engage in the various activities referred to above, I do not accept that this is indicative that his pain is mild or insignificant. The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.[32] I consider that he has been somewhat stoic and has done his best to get on with his life. That commendable attitude ought not be held against him.[33]
[32]Kelso v Tatiara Meat Co. Pty Ltd [2007] VSCA 267 at paragraph [199].
[33]Dwyer v Calco Timbers Pty Ltd (No. 2) [2008] VSCA 260 at paragraph [3]; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [47]
64 I accept Mr Muscat as an honest witness, albeit with an incomplete memory concerning a number of earlier events.
65 I consider that the consequences of Mr Muscat’s compensable low-back injury can fairly be described as more than “significant” or “marked” and as being at least “very considerable”. Although there was no specific evidence as to his life expectancy, it is likely that he has another forty years or so ahead of him. There was no evidence that his condition was likely to improve to any degree.
Disentanglement
66 Pursuant to s.134AB(38)(h) of the Act, the psychological or psychiatric consequences of a physical injury are only to be taken into account for the purposes of paragraph (c) of the definition of “serious injury”. That is, they are not to be taken into account for the purposes of an application under paragraph (a) of the definition, as is the case here.
67 Here, the defendant submits that Mr Muscat has not adequately disentangled the consequences to him of his non-organic problems from those of his organic or physical injuries.
68 In his report of 16 December 2011, Dr Ringelblum said:
“His back pain was caused or aggravated in July 2006 when he repeatedly bent and twisted his back while lifting trays of food in a cool room. CT scans subsequently showed a disc bulge at the spinal L4‑5 level. I believe this is the cause of his back pain. His subsequent problems, including depression, mood swings and anger issues can, to a large extent, be attributed to the consequences of that injury or the resulting treatments and incapacities.”[34]
[34]PCB 66
69 In his oral evidence, Dr Ringelblum said:
A:“…it’s very difficult to distinguish in a single person which elements of their symptoms are psychological and which are physical. …It’s clear that he has got significant back pain …and those problems have affected him and in my opinion will continue to affect him lifelong.
Q: Do you say that’s on the basis of organic back pain?---
A:On the basis of organic back pain. But whether that pain is – how much that pain is exacerbated by his psychological state and how much his psychological state is exacerbated by his back pain is very difficult to delineate clearly. So in descriptive language he has significant back pain which significantly restricts his daily function. … He has back pain much of which is due to organic causes, some of which is due to psychological causes but I am not able to delineate between those two in terms of percentages other than to say he has – if there were no psychological issues there would still be significant back pain, if that’s helpful.”[35]
[35]T 74-5. See also similar comments at T 99 and T 100
70 Likewise, Mr Dooley considered that Mr Muscat’s psychological condition was contributing significantly to his symptomatology.[36]
[36]DCB 37
71 In Jayatilake v Toyota Motor Corporation Australia Ltd,[37] Ashley JA said:[38]
“If a question arises whether, because there is said to be a psychological aspect (say) of pain and suffering, the plaintiff has made out the necessary proof, that question might, as a matter of theory, be resolved by identification of the ‘quantum’ of psychologically based symptoms, and their exclusion from the whole. But it is another thing to say that such an approach is required. A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.” (Emphasis added)
[37][2008] VSCA 167
[38]at paragraph [19]
72 Later in that judgment, Ashley JA said:[39]
“’Where an application is made under s134AB of the Act, and the evidence is consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required. These concepts rest upon the often false assumption that there will be a need to work backwards from the plaintiff’s condition as found at trial and which may be the consequence of multiple causes.”
[39]at paragraph [21]
73 In this matter, I consider that the evidence discloses that Mr Muscat suffered a compensable physical injury to his back in the course of his employment with the defendant. I consider that as a consequence of that physical injury, he has also suffered from various psychological symptoms, including depression and anger issues. In accordance with s.134AB(38)(h) of the Act, I shall not take into account such psychological consequences of the injury when assessing whether those consequences are sufficient to justify the conclusion that Mr Muscat’s physical injury amounts to a “serious injury” as defined.
74 The evidence is that Mr Muscat’s symptoms of pain may have been exacerbated by psychological issues. That is, his pain may be being caused in part by his physical injury and in part by psychological issues. In other words, there may be multiple causes for his pain. I accept the evidence of Dr Ringelblum that a precise identification of the degree to which his symptoms of pain are contributed to by psychological issues may not, “in the real world”, be possible. I am satisfied that Mr Muscat’s physical injury has and is a significant cause of the symptoms experienced by him and the consequences of injury previously referred to.
75 I have reached the conclusion that the consequences of Mr Muscat’s compensable back injury are “more than considerable” for the reasons set out above. I consider that the principal consequence of the injury is the consistent pain from which he suffers in his low-back, left buttock and left leg. I consider that the physical or organic injury caused to Mr Muscat’s spine is a significant contributor to that pain. It may be the case that psychological issues, such as depression, are also playing a contributing role. In the real world it is not possible to make a calculation as to the degree of such contribution.
Aggravation
76 This is a matter where I find that Mr Muscat suffered from pre-existing injury in the form of degenerative change in the lumbar spine. I accept that that condition was aggravated in the course of his employment so as to render a largely asymptomatic condition symptomatic. I am required to make a comparison of the extent of the impairment of the function of his lumber spine before the injury suffered in the course of his employment with the first defendant and his condition thereafter. I must assess any additional impairment.[40]
[40]Petkovski v Galletti [1994] 1 VR 436 at 443; De Agostino v Leatch & Anor [2011] VSCA 249.
77 I consider that Mr Muscat’s condition before July 2006 was such that, notwithstanding a degree of degenerative change in the vertebrae of his lumbar spine, he was able to hold down full-time employment and that he suffered from only occasional short term episodes of back pain. These had a minimal impact on his occupational and recreational lifestyle. I find that there has been a severe effect on his occupational and recreational activities brought about by the injury suffered in the course of his employment by the first defendant such as to constitute a serious injury as defined in s.134AB(37) of the Act.
Conclusion
78 For the reasons expressed above, I am satisfied that Mr Muscat suffered a compensable injury to his low-back in the course of his employment with the defendant. I am satisfied that the pain and suffering consequences to him of that injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, can fairly be described as more than “significant” or “marked” and as being at least “very considerable”.
79 Accordingly, pursuant to s.134AB (16)(b) of the Act, there will be leave to Mr Muscat to commence a proceeding for pain and suffering damages in respect of injuries suffered by him in the course of his employment with the defendant.
80 I shall hear the parties in relation to costs.
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