Navon v Victorian WorkCover Authority
[2020] VCC 861
•19 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03650
| EYAL NAVON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 June 2020 | |
DATE OF JUDGMENT: | 19 June 2020 | |
CASE MAY BE CITED AS: | Navon v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 861 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the lower back – whether pain and suffering consequences are “serious” under the Act – credit of the plaintiff
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s327 and s325
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health [2008] VSCA 153
Judgment: Leave is granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering arising out of an injury to his lower back on 27 June 2016 in the course of his employment with Quality Food World Pty Ltd.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Ms K L Bradey | Maurice Blackburn |
| For the Defendant | Mr S D Martin | Lander & Rogers |
HIS HONOUR:
1 This is an application brought by Originating Motion, whereby the plaintiff applied for leave pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) to bring proceedings to recover damages suffered by him arising from his employment with Quality Food World Pty Ltd. The plaintiff alleges he was injured in the course of his employment on 27 June 2016.
2 The plaintiff seeks leave to bring proceedings to recover damages for pain and suffering damages. The plaintiff seeks leave pursuant to the definition of “serious injury”, of serious long-term impairment or loss of body function to his lower back.
3 The following evidence was adduced during the hearing:
·The plaintiff tendered the following exhibits:
§Exhibit “A” – the Plaintiff’s Court Book (“PCB”), pages 9 to 32; 34 to 37 and 43 to 83.
·The defendant tendered the following exhibits:
§Exhibit 1 – the Defendant’s Court Book (“DCB”), pages 11 to 35; 53 to 58 and 89 to 90.
§Exhibit 2 – DVD surveillance film of the plaintiff taken on 8 June 2020.
4 At the commencement of the proceeding, Mr Martin, on behalf of the defendant, identified the following issues as relevant in this application:
(a)the plaintiff does not satisfy the statutory level for pain and suffering damages as a result of the physical injury to his lower back (a range case); and
(b)the credit of the plaintiff.[1]
[1]Transcript (“T”) 12
The statutory scheme
5 The application is brought under the definition of “serious injury” contained in s325(1) of the WIRC Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of body function”.
6 The relevant considerations which apply to such an application are as follows:
(a)the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 1 July 2014;[2]
(b)the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
(c)the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d)subsection 2(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being more than “significant” or “marked”, and as being “at least very considerable”;
(e)subsection 2(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f)a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g)in conformity with Barwon Spinners,[4] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss2(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[2]See s1 of the WIRC Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3]Barwon Spinners (ibid) at paragraph [33]
[4]ibid
7 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
8 The plaintiff was born in Israel in 1981. He is now thirty-nine years of age. The plaintiff migrated to Australia in January 2016.[5]
[5]PCB 10
9 The plaintiff is a married man and has three children. He has two sons, aged nine and six, and a five-month-old daughter.[6]
[6]PCB 18
10 The plaintiff was educated to the Year 12 level in Israel.[7] He subsequently completed a Certificate of Physical Education in Israel at Wingate Institute.[8]
[7]PCB 10
[8]PCB 24 and T36
11 The plaintiff’s work history included two-and-a-half years in the Israeli Defence Force.
12 Between the years of 2003 and 2007, the plaintiff travelled to the United States of America and worked in intermittent employment in that country.[9] In 2007, the plaintiff returned to Israel and worked as a chef. He also spent some extra work hours in personal training.
[9]PCB 10
13 After arriving in Australia in 2016, the plaintiff originally worked as a plasterer at AID Constructions Pty Ltd. In April of 2016, the plaintiff commenced employment with Quality Food World Pty Ltd. The plaintiff was injured on 27 June 2016 and returned to work for a short time with Quality Food World Pty Ltd. He then commenced employment in September 2016 with AID Constructions Pty Ltd, resuming his work as a plasterer.
14 The plaintiff then commenced employment on 25 June 2017 with BMS Project Management as a maintenance worker[10] and the plaintiff has subsequently obtained employment at Telstra, and currently works as an infrastructure designer, and has done so since February 2018.[11] At the time of this hearing, the plaintiff remained in full-time employment as an infrastructure designer at Telstra.
[10]PCB 49
[11]PCB 20
Injury with Quality Food World Pty Ltd
15 The plaintiff commenced employment as a picker and packer at Quality Food World Pty Ltd on 18 April 2016.[12] The plaintiff was employed full time in that capacity. On occasions, he was required to drive a forklift.
[12]PCB 11
16 In his affidavit dated 8 March 2019, the plaintiff set out the circumstances of the injury to his lower back in the following terms:
“Early in the morning on about 27 June 2016, I was completing my duties as normal. I was required to lift boxes of approximately 15 to 20 kgs from the factory floor and place them on a dispatch pallet. About half way through the task, I picked up a bundle of boxes and turned to my left to place it on the pallet. Whilst performing this movement, I experienced immediate intense pain in my lower back. The pain shot into my left buttock and down my left leg.”[13]
[13]PCB 11 at paragraph [15]
17 The defendant in this case accepts that the plaintiff was injured at his place of employment on 27 June 2016.
Medical treatment
18 Immediately after the injury to the plaintiff, he was taken by ambulance to the Monash Hospital.[14] The plaintiff was examined at the hospital and it was found that he had reduced left-knee jerk reflex, reduced sensation to light touch on the dorsum of his left foot, all movements of his leg inhibited by pain, with a possible reduced dorsiflexion of his left ankle, and straight leg raising of the left leg limited to 30 degrees.[15]
[14]PCB 12
[15]PCB 28
19 The plaintiff was provided with pain relief and contact details for a physiotherapist and discharged home. He was not advised to have imaging taken on that day.[16] The plaintiff never returned to the Monash Hospital for further treatment.
[16]PCB 28
20 The plaintiff attended his general practitioner, Dr Zalman Rosenblum, at the Elsternwick Medical Centre on 30 June 2016 for his back injury. On the day of the first presentation, the plaintiff had symptoms of left thoracolumbar and flank pain with no radiation.[17] Dr Rosenblum referred the plaintiff to see Mr Michael Johnson, orthopaedic surgeon. Dr Rosenblum continued to be the plaintiff’s general practitioner until 8 March 2018.[18]
[17]PCB 31
[18]PCB 31
21 The plaintiff then engaged Dr Julian Bitterfield as his general practitioner. Dr Bitterfield is at the Elsternwick Medical Centre. There was no report from Dr Bitterfield contained in the Plaintiff’s Court Book or tendered in this case. The plaintiff gave evidence that Dr Bitterfield remained his general practitioner to the present time. In effect, what this means is that there is no report from the treating general practitioner for the plaintiff for a period of two years and three months at the time of the hearing.[19]
[19]PCB 19
22 The plaintiff first consulted with Mr Michael Johnson, orthopaedic surgeon, on 2 August 2016.[20] Dr Rosenblum had organised for an MRI scan of the plaintiff’s lumbar spine to be performed on 6 July 2016. Mr Johnson had access to the results of the MRI scan of the lumbar spine at the time when he first examined the plaintiff.
[20]PCB 34
23 The plaintiff gave Mr Johnson a history of symptoms, complaining of intermittent left thoracolumbar and flank pain without radiation.[21] When Mr Johnson examined the plaintiff, he made the following observations:
“… He localized his pain to the low back region. The range of thoracolumbar movement was full. Straight leg raising was full and there was no neurological abnormality in the lower limbs. There was a full range of non-irritable hip movement.”[22]
[21]PCB 34
[22]PCB 34
24 The plaintiff returned to see Mr Johnson on 28 February 2017 and 23 March 2017. The plaintiff was continuing to complain of the same symptoms as at his first attendance upon Mr Johnson. The plaintiff was becoming frustrated that his condition was not improving. Mr Johnson recommended an L5 nerve block procedure. This procedure was conducted by Mr Johnson on 26 June 2017.
25 Mr Johnson reviewed the plaintiff on 1 August 2017 and has not seen the plaintiff since that time. At the time of the last examination of the plaintiff, Mr Johnson recommended that the plaintiff cease physiotherapy treatment and continue with a self-managed exercise program.
26 The plaintiff gave a history to Dr Ales Aliashkevich, orthopaedic surgeon, that, as a result of the L5 nerve block procedure, he obtained three to four months’ relief of his back pain and leg pain symptoms.[23]
[23]PCB 49
27 The plaintiff has continued to take pain-relieving medications in the form of Panadol and Nurofen. He has also, on occasion, taken Tramal, Celebrex and Mobic to alleviate more severe onset of pain in his lower back. The plaintiff maintains a fitness regime in order to limit the impact of pain on his lower back and left leg.
Medical opinions
The Plaintiff’s doctors
Dr Zalman Rosenblum, general practitioner
28 Dr Rosenblum prepared a report dated 5 April 2019. In that report, Dr Rosenblum noted that he had not seen the plaintiff since March 2018. Dr Rosenblum was unable to give a status update in respect of the prognosis for the plaintiff because he had not seen the plaintiff for a period of twelve months at the time of writing the report. He noted that in Mr Johnson’s opinion, that the plaintiff had residual symptoms related to the left L5 foraminal irritation.
29 I note, here, that the current general practitioner, Dr Bitterfield, from the same practice as Dr Rosenblum, has not provided a report for this proceeding.
Mr Michael Johnson, orthopaedic surgeon
30 Mr Johnson prepared a number of medical reports in respect to this proceeding, but the most relevant ones were prepared on 23 May 2017 and 5 August 2017. Prior to the L5 nerve block procedure, Mr Johnson’s opinion was stated as follows:
“I am uncertain of the exact anatomical cause of Mr Navon’s symptoms.
They may possibly be related to nerve compression affecting either the left L3 or L5 root in the exit foramen.”[24]
[24]PCB 35-36
31 At that stage, Mr Johnson thought the plaintiff might be at a stage where surgical treatment may need to be considered but he recommended the nerve block procedure to determine the exact extent of the injury to the plaintiff.
32 In his report dated 5 August 2017, Mr Johnson had performed the L5 nerve block procedure to the plaintiff. He noted as follows:
“He can now walk and sit an unrestricted period and he is attending the gym fairly frequently.
His symptoms are troublesome from time to time and he takes anti-inflammatories one or two times per week.
I took the opportunity of reviewing the previous MRI scan.
Whilst it is difficult to make a definite diagnosis, I think it is most likely that his problem is related to left L5 foraminal nerve irritation.”[25]
[25]PCB 37
33 Mr Johnson went on to say that at that time, he did not think surgical intervention was warranted.[26]
[26]PCB 37
Dr Alex Aliashkevich, orthopaedic surgeon
34 Dr Aliashkevich provided a medico-legal report dated 22 February 2020 for the purpose of this litigation. In his usual way, Dr Aliashkevich gave a discursive summary of the medical reports prepared in relation to this proceeding.
35 Dr Aliashkevich set out his examination findings as follows:
“… Eyal had normal gait and posture. His muscular strength and tone were preserved. He was able to stand on his heels and toes and squat. Circumference of both lower thighs was 42 cm, circumference of the right calf was 38 cm, left calf was 37 cm. His deep tendon reflexes were symmetrical. Diminished sensation was found in the distribution of the left L5 dermatome on pinprick testing. The range of movements of his lumbar spine was reasonably well preserved.” [27]
[27]PCB 53
36 Dr Aliashkevich also noted moderate tenderness on palpation in the left lumbosacral junction.[28]
[28]PCB 53
37 Dr Aliashkevich took a photograph of the plaintiff bending forward and able to place his palms flat on the floor in front of him.[29]
[29]PCB 53
38 Dr Aliashkevich noted the radiological findings as follows:
· The MRI scan of the lumbar spine performed on 6 July 2017:
“Comment:
1. At L5-S1, moderate left foraminal narrowing, which may have potential for impinging the left L5 nerve root.
2. At L3-4, mild to moderate left foraminal narrowing, which abuts the exiting left L3 nerve root, which may have potential for neural impingement.”[30]
[30]PCB 55
· The CT scan performed of the thoracic and lumbosacral spine on 10 January 2020:
“Comment: 2mm lytic spondylolisthesis L5 and S1 in the setting of L5 pars defects with degenerative change at the pars pseudoarticulation. These changes as well as L4/5 facet degeneration could account for the patient’s lower back pain and if symptoms fail to resolve, would be amenable to CT-guided cortisone injection.
Features suggestive of Scheuermann’s disease as described.
Left far lateral L3/4 disc protrusion contacting the extraforaminal left L3 nerve root also potential source for pain if there is mid left back pain and radiating symptoms to the left anterior thigh would be amenable to nerve sheath cortisone injection, if required.
Left lateral recess stenosis L5/S1 containing the descending left S1 nerve root.”[31]
[31]PCB 56
39 The CT scan findings also included:
“L5/S1: Bilateral L5 pars defects with degenerative changes at the pseudoarticulations. The pars defects resulting in 2mm anterolisthesis L4 on L5. Mild broadbased disc protrusion eccentric to the left, narrowing the left lateral recess and contacting the descending left S1 nerve root. Severe bilateral neural compressive foraminal stenosis.
Normal paraspinal soft tissues.”[32]
[32]PCB 56
40 Dr Aliashkevich gave the opinion as follows:
·“Chronic lower back and left leg pain.
·History of workplace injury on about 27 June 2016.
·Aggravated L5-S1 spondylolysis.
·Bilateral L5 pars defects.
·L5-S1 left dominant foraminal narrowing.
·L3-4 left foraminal disc protrusion.
·Positive response to left L5 nerve root block on 26 June 2017.”[33]
[33]PCB 57
41 In Dr Aliashkevich’s opinion, the plaintiff’s employment, in general, and the state of the injury in particular, are materially contributing factors to a significant exacerbation of a pre-existing L5-S1 spondylolysis and degenerative condition of the lumbosacral spine.[34] Dr Aliashkevich noted, from the neurosurgical perspective, aggravated L5-S1 spondylolysis and left lateral foraminal L3-4 disc protrusion with compression of the L5 and L3 nerve roots represent the most likely organic basis for the plaintiff’s lower back and left leg complaints.[35]
[34]PCB 58
[35]PCB 58
Dr James Rowe, occupational physician
42 Dr Rowe prepared a medico-legal report dated 19 February 2020 for the purposes of this litigation. Dr Rowe did not have the CT scan of 10 January 2020 when he examined the plaintiff. Dr Rowe noted a history from the plaintiff that he continued to suffer from lower back pain which radiated to his left leg. The plaintiff reported numbness in the left leg and weakness in the left foot and ankle.[36] At the time of the examination, Dr Rowe noted that the plaintiff had been prescribed Tramadol for back pain and had been told that his local doctor was Dr Zalman Rosenblum. I note, here, that Dr Rosenblum had not been the plaintiff’s general practitioner for almost two years by the time of this examination by Dr Rowe.[37]
[36]PCB 63
[37]PCB 64
43 Dr Rowe noted his examination of the plaintiff in the following terms:
“He demonstrated good flexibility in the lumbosacral spine. He could place his hands on the floor in a forward flexion movement. Movements to the left however were somewhat restricted.
The left knee reflex was somewhat diminished and he had some impaired sensation about the lateral toes of the left foot.
There was evidence of wasting of the left calf. It measured 3cm smaller in circumference than the right calf at equal points of measurement.
The left and right thighs were of equal size at equal points of measurement.
There was some weakness of movement of the left foot and ankle.”[38]
[38]PCB 65
44 Dr Rowe diagnosed the plaintiff as follows:
“The diagnosis is an L3/4 and L4/5 disc derangement in his lumbosacral spine with positive signs of radiculopathy in his left leg including weakness, wasting and impaired sensation in the lateral toes of the left foot.”[39]
[39]PCB 65
45 Dr Rowe noted that there was an organic basis for the plaintiff’s complaints of lower back and left leg pain. In Dr Rowe’s opinion, the plaintiff’s diagnosis was guarded.
Mr Russell Miller, orthopaedic surgeon
46 Mr Miller examined the plaintiff and prepared a report dated 28 January 2020 for the purposes of this application. Mr Miller stated his opinion as follows:
“The client suffered a musculoligamentous strain and aggravation of degenerative disease in the lumbar spine including aggravation of probable L5 pars defect. There is radiation in the left lower extremity, but there are no other features to suggest radiculopathy, neurological deficit or structural injury.
…
It is likely that the lumbar spine injury has been complicated by the development of a chronic pain syndrome leading to overall a fair prognosis.”[40]
[40]PCB 75
47 In Mr Miller’s opinion, the plaintiff would require ongoing conservative treatment, with additional measures for pain management and rehabilitation. He did not think that the plaintiff was a suitable candidate for lumbar spine surgery. In Mr Miller’s opinion, the plaintiff’s injuries have stabilised and are permanent.[41]
[41]PCB 76
The Defendant’s doctors
Dr David Barton, occupational physician
48 Dr Barton examined the plaintiff on 9 March 2017 and prepared a report dated 10 March 2017 in respect of the plaintiff’s injuries. In Dr Barton’s opinion, the plaintiff developed a mild soft-tissue injury to his lower back. In Dr Barton’s opinion, the plaintiff’s presentation in 2017 was functional rather than physically based, such opinion being formed after examination of the plaintiff. Dr Barton noted, in the later report dated 20 April 2017, the physiotherapist had indicated that the plaintiff be discharged and felt that the plaintiff had recovered from his injury. This factor confirmed Dr Barton’s opinion that the plaintiff had recovered from the initial injury.[42]
[42]DCB 29
Mr John O’Brien, orthopaedic surgeon
49 Mr O’Brien prepared a report dated 26 July 2018 in respect of the plaintiff’s claim. Mr O’Brien took the following history from the plaintiff:
“… In February 2018 Mr. Navon did state that he was able to cease work as a plasterer obtaining work with Telstra undertaking customer services duties which he states is sedentary on a full-time basis. The patient in fact states that this has resulted in some improvement in the severity of pain as he has not been doing any manual work and is able to change his position on a regular basis.”[43]
[43]DCB 30
50 As previously noted, the plaintiff had changed his employment from plastering to a maintenance man before he was engaged by Telstra in the early part of 2018. This history to Mr O’Brien is not entirely correct.
51 Mr O’Brien’s physical examination findings were as follows:
“The thoracolumbar spine was straight with a mild lumbar lordosis. Lumbar flexion was 45° accompanied by the complaint of pain just to the left of the lumbo-sacral junction the patient demonstrating difficulty extending from the flexed position. Extension was only l0° accompanied by the complaint of quite severe left buttock pain. Lateral flexion was 20° with only 15° of rotation, rotation to the left only about 10°. All movements in fact were accompanied by the complaint of pain. Some tenderness was described in the vicinity of the posterior/superior iliac spine on the left side.
…
Lower limb power appeared intact although the patient did report some aggravation of buttock pain on active ankle and toe extension against resistance. All lower limbs reflexes were intact. The patient did in fact report some altered sensation predominantly related to the area of the lateral left calf in the distal aspect of the left thigh.”[44]
[44]DCB 31
52 Mr O’Brien noted the radiological examinations of the x-ray of 30 June 2016 and the MRI scan of 6 July 2016. Dr O’Brien expressed his opinion as follows:
“The patient now describes a work-related lifting incident occurring some two years ago which precipitated back pain radiating into the left leg. This has been treated conservatively with some reported positive response including a definite described positive response to left L5 nerve root block. There does however remain constant pain now predominantly associated with the left buttock but there being reported continuing episodes of aggravation of back and leg pain.
Current signs now demonstrate quite significant restriction of lumbar movement with very definite asymmetrical loss and evidence of dysmetria. There however appears to currently no clinical evidence of nerve root compromise or no radiculopathy. Investigation reported as demonstrating pars defects at LS so there is in fact reported left foraminal narrowing.”[45]
[45]DCB 32
53 Mr O’Brien went on to note previous reported response to nerve root injection does, nevertheless, suggest the underlying pathology is likely to relate to the L5-S1 level, with discogenic pathology causing back pain, there being, however, no clinical evidence of frank disc herniation.[46] Mr O’Brien stated that he would regard the plaintiff’s prognosis as guarded. In his opinion, it was likely the plaintiff, in fact, would continue to experience chronic lower back pain which, in fact, will remain vulnerable to aggravating factors.[47]
[46]DCB 32
[47]DCB 32
54 The preponderance of the medical evidence is that the plaintiff has an organic basis for his ongoing complaints of lower back pain and some radiation of pain symptoms into his left leg. The opinions of Dr Aliashkevich, Dr Rowe, Dr Miller and Mr O’Brien confirm that to be the case, including the results of the radiology reports relating to the MRI scan conducted in 2016 and, in some cases, the CT scan conducted in January 2020.
55 Dr Miller is the only medical examiner who refers to a Complex Regional Pain Syndrome as being a potential explanation for the ongoing pain symptoms suffered by the plaintiff. Dr Barton is the only medical practitioner who states that the plaintiff has recovered from the injury which occurred in June 2016.
56 On the basis of all the evidence, I accept that there is an organic basis for the plaintiff’s complaint of pain, resulting from an injury to his lower back on 27 June 2016.
The credit of the Plaintiff
57 Mr Martin announced at the commencement of the proceeding that the plaintiff’s credit would be an issue in this proceeding.
58 The first issue of credit that Mr Martin relied upon was concerning the plaintiff’s evidence about his sleeping difficulties. The plaintiff agreed that he had attended upon Dr Bitterfield, his general practitioner, on 16 May 2016, complaining of insomnia for years.[48] The plaintiff also agreed that he had been sent to a psychologist, Ms Ariella Rosinger, by his general practitioner, for his sleeping difficulties.[49] The plaintiff agreed, in his evidence, that he never told Ms Rosinger, who was treating him for his sleeping difficulties, anything about his injured back as being a cause of his sleeping difficulties.[50] In his affidavit material, the plaintiff clearly stated that he would wake up at night due to the pain from his back injury. In his history to Dr Aliashkevich, the plaintiff stated that his sleep was affected by pain and discomfort in his lower back and it causes him to wake during the night.[51] In his reporting to Dr Rowe, the plaintiff stated that he has poor sleep quality and finds his sleep is particularly disturbed if he sleeps on his left side.[52] The plaintiff, in his reporting to Ms Rosinger, the psychologist treating him for sleep disorders, stated to her on 2 June 2020 that he did not see how his work injury was in any way related to what his treatment with her was about.
[48]T30
[49]T32
[50]T50
[51]PCB 52
[52]PCB 64
59 On the one hand, the plaintiff was saying his sleeping condition had nothing to do with his work accident and on the other hand, he was either positing the proposition that his sleep was either disturbed due to pain during the night or, alternatively, that he was unable to get comfortable prior to going to sleep. Mr Martin stated that those two positions are not compatible and that the plaintiff’s credit is undermined because of it.
60 The second area of credit attack by the defendant related to the plaintiff’s lack of reporting of injuries to the medical practitioners. The plaintiff injured his left shoulder on 19 October 2016 while he was working as a plasterer. This injury occurred nearly four months after the subject injury of this proceeding. When the plaintiff was examined on behalf of the insurer by Associate Professor Ian McInnes, specialist surgeon, for the purposes of assessing the left shoulder injury on 28 November 2016, the plaintiff made no mention of his back injury to Associate Professor McInnes.[53]
[53]DCB 12 and T19
61 The plaintiff also attended an Associate Professor Carolyn Allan for the purposes of fertility treatment and assessment. The plaintiff never told the treating endocrinologist any history about a back injury.[54]
[54]DCB 89
62 In his first affidavit, the plaintiff made no mention of the shoulder injury which had occurred just four months after the initial back injury. The affidavit concerned was sworn in March 2019.[55] The plaintiff agreed that he had attended a different general practitioner for his shoulder injury.[56] The plaintiff agreed that he did not tell his general practitioner treating him for his back injury and general medical problems, anything about his shoulder injury.[57] Mr Martin stated that the plaintiff was selective in the history he would give to the medical practitioners and was not to be relied upon as a matter of credit.
[55]T16
[56]T17
[57]T20
63 The third issue of credit the defendant relied upon was the way in which the plaintiff alleged the physical work could not be continued because of his back injury. He sets this out in his first affidavit. The facts of the matter are that the plaintiff had ceased his plastering work prior to the end of 2017 and had commenced a role as a handyman. The plaintiff continued in the handyman role, working in a manual-type manner. Mr Martin stated this was an example of the manner in which the plaintiff would exaggerate the impact of the injury from his work, affecting his capacity to obtain or retain other physical employment.
64 The fourth example of the issue on credit was the plaintiff’s evidence about putting on weight. In his first affidavit, the plaintiff stated that he had put on weight as a result of the injury to his lower back.[58] The plaintiff, after cross-examination, conceded that, in fact, he had lost weight since his injury to his lower back.[59] The defendant relied upon this contradiction in the evidence that the plaintiff was not a reliable witness.
[58]PCB 15 at paragraph [30]
[59]T55
65 In the course of the proceeding, the plaintiff was shown approximately one hour of video surveillance, which was taken on 8 June 2020. The surveillance was shown in Court until such time as the technology failed. The parties agreed that each of the parties and the Court would observe the full surveillance film independently and return to Court after watching it.
66 The surveillance film shows that the plaintiff engaged in the full activity of taking his two sons, aged nine and six, for a ride on their bicycles down to the local Little Athletics track. The plaintiff was able to walk at a brisk pace, keeping up with his sons, both going to and from the athletics track. While the boys were riding around the athletics track on bicycles, the plaintiff was seated on the ground with his legs tucked up under him. While sitting there encouraging the boys, he took off his top to enjoy some of the limited sunshine of 8 June 2020. It was clear, once the plaintiff’s top was removed, that he was a very fit and active man. The evidence is, and the film confirmed, that the plaintiff was someone who engaged in a lot of gymnasium work. Later on in the film, the plaintiff engaged in kicking the soccer ball around with his sons. He appeared to move in a reasonably unrestricted fashion and, in his evidence, agreed with that.[60] When cross-examined about it, the plaintiff stated that he did play soccer, and appeared to be playing soccer in an unrestricted fashion, but that he was in pain. He also noted that there were breaks in the film which did not show him doing the stretching exercises which enabled him to continue in that activity.
[60]T47
67 I am mindful of the authority from the Court of Appeal of Church v Echuca Regional Health[61] that a video-surveillance film is to be closely examined and warily used in making a full assessment of a witness’s credibility. The film ran for approximately one hour and it displayed the plaintiff interacting and physically capable of many movements and actions with his sons. I accept that it was not apparent that the plaintiff was suffering any pain while engaged in these activities; however, it is also possible that the plaintiff was suffering some pain, or later suffered pain, as a result of the activities, which, of course, is his evidence.
[61][2008] VSCA 153
68 I find that the plaintiff was given to exaggeration of his symptoms and difficulties on occasions during the course of his evidence; however, I do not find that he was a dishonest witness. His own counsel described him as being very physically aware, and I accepted that as a proper description of the plaintiff. He is focused on his physical wellbeing and has clearly spent a lot of time in gymnasiums and other physical activity, maintaining his body. Of itself, that does not undermine the plaintiff’s credibility.
Consequences of the lower back injury to the Plaintiff
69 The plaintiff relied on his affidavits dated 8 March 2019 and 9 June 2020 to set out the consequences of the lower back injury to him. He also relied upon an affidavit of his wife, Sharona Navon, dated 9 June 2020, to support his application of serious injury and to confirm the consequences to him.
Pain
70 In his affidavits, and also in his evidence, the plaintiff stated that he is constantly suffering pain. In particular, he stated that the pain is always there.[62] The plaintiff has given evidence that he daily attends gym to do stretching exercises, yoga, and sometimes swimming, in order to assist in the control of his pain. He is clearly a very fit man. The plaintiff has been consistent in his history to each of the examining medical practitioners about his pain symptoms and where and when he suffers from that pain. The plaintiff concedes that the pain level fluctuates and, in particular, depends on the amount of physical activity he is engaged in. As I have previously noted in these Reasons, the plaintiff has radiological support for a physical cause to his pain symptoms.
[62]T25
71 I accept that the plaintiff does suffer from pain in his lower back which, on occasions, radiates down his left buttock into his left leg. I accept that the constancy of pain in his lower back in a situation where the medical opinions are that it will be a position that will remain the same into the future, is a very considerable consequence for the plaintiff. He is a relatively young man and has many years of life ahead of him, which will be, in part, dominated by the pain in his lower back.
Medication
72 The plaintiff’s evidence about the medication he takes is a little bit unclear. In respect to Tramal, the plaintiff stated, in his evidence, that if he had a flare up of pain, he did not take Tramal anymore.[63] In his affidavit dated 9 June 2020, the plaintiff stated that he was prescribed Tramal by Dr Bitterfield.[64] When challenged about his statement about Tramal use in his affidavit dated 9 June 2020, the plaintiff stated that he did not give evidence that he no longer took Tramal for the pain and flare ups.[65] Later, in his evidence, he confirmed that the last time he took Tramal was in January 2020.[66] On the present state of the evidence, I accept the plaintiff has not been taking Tramal for pain flare-ups since January 2020. The reason for him not taking Tramal is that it gave him a very upset stomach, and he decided not to take it anymore.
[63]T21
[64]PCB 19
[65]T23
[66]T24
73 In his history to Dr Aliashkevich, the plaintiff stated that his medication regime was Nurofen, two tablets a day, four or five days in the last fortnight, and Panadol, 800 milligrams a day, three or four days in the last fortnight. He also told Dr Aliashkevich he takes Mobic, one tablet a day as needed, but not used in the last fortnight. He then referred to his use of Tramal medication about two months ago. It is to be remembered Dr Aliashkevich’s report is dated 22 February 2020.[67]
[67]PCB 52
74 In his evidence, the plaintiff stated that he received a special dosage of Nurofen and Panadol, which he took three to four days every fortnight.[68] The special dosage of Panadol was provided to him by a relative from Israel and he noted that his mother was the person who had told him this was stronger medication for pain relief.
[68]T22
75 I accept that the plaintiff’s requirement and need for the taking of medications for pain relief is a very considerable consequence for him. I note that, in the main, the medications he now takes are over-the-counter pain-relief medication but, nevertheless, the need to take them on a consistent and long-term basis is a very considerable consequence.
Sleep
76 I have previously referred to the evidence regarding sleep in this matter. I am not satisfied, on the basis of the evidence, that the plaintiff’s sleep is disturbed solely as a result of his lower back pain. It is clear from the evidence that the plaintiff has other conditions, in particular, Post-Traumatic Stress Disorder from his Israeli Defence Force service, that interferes with his sleep. He has had specific treatment by the psychologist to deal with this symptom. I am unable to determine, on the balance of probabilities, what, if any, impact the lower back pain has on the plaintiff’s ability to either get to sleep in the first place or, alternatively, to remain asleep.
Ongoing treatment
77 The plaintiff has limited ongoing treatment for his medical condition. Between 2017 and 2019, the plaintiff agreed that he attended his general practitioner on one occasion up to September 2019.[69] He also went on to state he had attended his general practitioner in December 2019 and January 2020. The CT scan was performed in January 2020. The plaintiff’s last attendance on his orthopaedic surgeon was on 1 August 2017.[70] The plaintiff does not receive any ongoing physiotherapy treatment. The plaintiff’s medical treatment is not of any great significance. The plaintiff manages his own pain symptoms by exercise and the ingestion of pain-relief medication.
[69]T27
[70]T28
Sport
78 The plaintiff gave evidence that he missed the opportunity to engage in playing of competitive soccer and tennis. He attributes his inability to play these sports to his lower back injury. In respect of soccer, the plaintiff had travelled throughout the United States for some four years and never played soccer prior to his lower back injury. He then came to Australia and never engaged in any competitive soccer up until the time of his injury. Given the plaintiff’s age of thirty-nine and the fact he has three young children, and a wife who is suffering from some physical disability due to a motor vehicle accident, I do not accept that he would have the time or energy to engage in competitive soccer activities. In his evidence, he stated he would make the time. I do not accept the fact that the plaintiff being unable to play soccer is a significant consequence for him.
79 The plaintiff also complained that he was unable to engage in tennis as a result of his lower back injury. He stated he came from a family who were very keen tennis players and, indeed, his brother was a national champion tennis player. I notice, however, in the history he has given to doctors, that he suffers from what he refers to as “golf elbow” in his right arm. He is right-arm dominant, and golf elbow is also known as tennis elbow. The fact that he suffers from tennis elbow would be a restriction on its own for the playing of tennis and I do not accept that the lower back injury is the only reason why he cannot engage in playing tennis at this time. His domestic situation also interferes with the time and availability for playing such a sport.
80 The plaintiff has returned to running and he can run between 5 to 10 kilometres at a time.[71] The plaintiff stated that only the day before the hearing – that is 14 June 2020 – he had to stop in the course of a run because of a numbness in his left foot or leg. In the video, there was a short period of film where the plaintiff was running to keep up with his sons while they were riding along the road. He described his run as a shuffle. It was clear from the film that he was not a high-stepping runner, but, nevertheless, was able to get along the road at a reasonable pace in order to maintain the proximity with his two sons while they were riding their bicycles.
[71]T40
81 The plaintiff also gave evidence that he was involved in the promotion and attendance at dance parties in the Central Business District of Melbourne.[72] He agreed that he would get up dancing, but most of the time was spent sitting at the bar. I note that the dance party was not an activity that he referred to in his affidavit material.
[72]T51
82 I accept that the plaintiff has some of his physical activities in relation to sport limited, but only to a minor degree, and do not accept that his limitations amount to a very considerable consequence for him.
Activities of daily living
83 It was clear from the film of the plaintiff and the examinations of Dr Aliashkevich and Dr Rowe, that the plaintiff has retained a considerable degree of flexibility and mobility of his body. In terms of the activities of daily living, he stated that in the current domestic situation, he can do all those activities of gardening and housework.[73]
[73]PCB 52
Conclusion
84 I accept that the plaintiff’s consequences in relation to pain in his back and referred down his left buttock and leg, and the need to take medication, are very considerable consequences for him. Further, based on all the medical evidence and the plaintiff’s evidence, supported by his wife, I find the consequences of the lower back injury to him, when considered in the range of the possible consequences arising from that lower back injury, are “more than significant or marked” and are best described as being “at least very considerable”. The plaintiff’s application for leave to commence proceedings for damages for pain and suffering arising from, and as a result of, the injury to his lower back on 27 June 2016 is granted.
85 The question of costs is reserved.
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