O'Dwyer v BlueScope Steel Limited
[2019] VCC 312
•13 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04465
| MARK ANTHONY O’DWYER | Plaintiff |
| v | |
| BLUESCOPE STEEL LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2019 | |
DATE OF JUDGMENT: | 13 March 2019 | |
CASE MAY BE CITED AS: | O’Dwyer v BlueScope Steel Limited | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 312 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the lower back – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C S O’Sullivan | Maurice Blackburn |
| For the Defendant | Mr R I D McDonald | Hall & Wilcox |
HER HONOUR:
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an injury by the plaintiff suffered during the course of his employment with the defendant as a steel maker from 2013.
2The body function said to be impaired is the spine.
3The plaintiff bears an overall burden of proof upon the balance of probabilities.
4By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
5I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
6Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
8The plaintiff swore two affidavits and was cross-examined. Also in evidence were medical reports and other material. I have read all the tendered material.
The Plaintiff’s evidence
9 The plaintiff was born in April 1968 and is currently fifty years old. He is married and lives with his wife.
10 The plaintiff completed Year 11. After leaving school he started an apprenticeship as a painter and decorator. He ceased that apprenticeship after suffering an injury to his right wrist. He then washed cars at a caryard before working at a licensed grocery store serving customers and stocking shelves.
11 The plaintiff then began working for BHP as a full-time steelworker in or about January 1988. BHP later became BlueScope Steel Limited. His job as a steelworker involved various duties, some of which were heavier than others. The heavy duties included the building of heads. This was heavy and physically demanding as it required him to regularly lift heavy pieces of steel. It also required a lot of bending and twisting.
12 The plaintiff suffered back pain from time to time. In March 2011, he had a lumbar spine x-ray. He was prescribed Naprosyn for back pain for a short period of time. He then continued to work his normal duties.
13 In late 2013, the plaintiff was building a head at work when he felt a lot of pain in his lower back. He reported it to his supervisor, who asked him whether he could continue working. The plaintiff did continue working. His low back pain continued.
14 On 29 December 2013, the plaintiff saw his general practitioner about his low back pain. He was referred for a lumbar x-ray which took place on 3 January 2014. His general practitioner then prescribed painkilling medication and referred him for physiotherapy.[3]
[3]Transcript (“T”) 4
15 The plaintiff saw physiotherapist, Mr Poon, in December 2014 and had treatment until January 2016.[4] The treatment was of assistance. He could not recall Mr Poon suggesting a gym program but he did discuss doing core exercises with him. The plaintiff had not done these exercises.[5]
[4]T4
[5]T5
16 The plaintiff’s low back pain continued to bother him. He was referred for a lumbar CT scan which took place on 1 April 2014.
17 By the middle of 2014, the plaintiff was getting pain travelling down his left leg as well as the ongoing pain in his lower back. In July 2014, he was referred for a lumbar MRI scan which took place on 24 August 2014.
18 On 2 September 2014, the plaintiff had an epidural injection into his lower back. The injection gave him about three months of pain relief but then the pain returned to its pre-injection level. He was also prescribed Lyrica and Tramadol for pain relief.[6]
[6]T2
19 The plaintiff completed a WorkCover Claim Form on 29 September 2014. The claim was eventually accepted.
20 Throughout 2014, the plaintiff continued on his normal duties but with the assistance of painkillers. In mid-2015, he was given lighter duties at work whereby he was not required to build heads or do any bending or heavy lifting tasks.[7] This change in duties followed advice by his general practitioner at Cranbourne Park Clinic that ongoing use of painkillers would result in stomach ulcers so the plaintiff should therefore go on lighter duties.[8]
[7]T4
[8]T13
21 The plaintiff saw neurosurgeon, Mr Timms, on 4 June 2015. He suggested the plaintiff stay on light duties at work. The plaintiff could not recall Mr Timms telling him that if he had another prolonged flare up he should consider having another injection.[9]
[9]T3, also the case on re-examination in November 2017
22 On 20 November 2015, the plaintiff saw his general practitioner because he had increased low back pain. Tramadol was prescribed.
23 On 18 March 2016, the plaintiff underwent another lumbar MRI scan.
24 In about August 2016, the plaintiff tried to do some crane driving at work when asked to do so by the defendant. This required quite a lot of bending and caused him increased low back pain.
25 Over time, the plaintiff became very frustrated by his pain and restrictions and difficulty dealing with the WorkCover process. In November 2016, he started taking the antidepressant, Lexapro.
26 In July 2017, the plaintiff completed a claim for impairment benefits. The claim was later accepted.
27 On 7 September 2017, the plaintiff underwent another lumbar MRI scan. He saw Mr Timms again, who told him he did not recommend back surgery.
28 The plaintiff continues to work full-time hours but modified duties as set out on his doctor’s regular certificates.[10]
[10]T14
29 A certificate of capacity was completed by Dr Arachchige on 14 December 2018.
30 Dr Arachchige’s clinical diagnosis was then worsening left sciatica pain down left lower limb and associated lower back pain at times. She noted that when undertaking normal working duties, the plaintiff gradually developed low back pain with deterioration in December 2013 and a few months later developed left leg pain. The injury had been on and off symptomatic since.
31 Dr Arachchige certified the plaintiff fit to sit, stand/walk, bend and walk with modifications, as well as able to kneel, reach above his shoulder, use his injured arm/hand and move his neck. She did not consider him to be able squat.
32 Dr Arachchige:
“[a]dvised light duties, no heavy lifting max of 5kg, no prolonged walking, standing or sitting. Can work overtime within these restrictions. Limit crane driving not more than 1 hour per shift”.
33 The plaintiff’s return to work plan imposed the following restrictions for the period between December 2018 and February 2019:
“No bending or heavy lifting (>5kgs).
No prolonged walking, standing or sitting.
No repetitive bending or twisting.
Crane operations for 1 hrs (sic) only.”
34 The plaintiff mostly does inspection duties which involve him sitting at a desk working on computers and filling in paperwork. He occasionally does some crane driving but his medical certificates limit him to doing this no more than one hour per shift.
35 The plaintiff is no longer having any physiotherapy or hands-on treatment for his low back pain. He occasionally takes pain-relief medication but he tries to avoid it. He has taken a lot of strong pain-relief medication in the past and is aware of the damage it can do to his stomach. He continues to take Lexapro.
36 The plaintiff continues to suffer pain in his lower back. The pain is aggravated by simple movements, in particular bending. He needs to be very careful when bending. Even slight bending such as standing at the sink washing dishes leads to increased low back pain. Bending and leaning forward is his main problem.[11]
[11]T7
37 The plaintiff agreed he still has constant midline lower back pain which varies in intensity according to activity as he described to Mr Carey earlier this year.[12]
[12]T10
38 The plaintiff agreed he told Dr Aliashkevich in late 2018 that his pain varied from one out of ten on an ordinary day to ten out of ten on a bad day like the October 2018 flare up. On the day of the examination, his back was not causing him problems.[13]
[13]T17
39 On a “one out of ten day”, the plaintiff –
“… can feel there is something wrong with the back, but you can still walk. ... don’t drive the car, walk. Things- household sort of things you can do, and sort of do things at work. Later in the day - it gets worse like in the afternoon, you take painkillers again.”
40 When the pain is ten out of ten, it is very painful. The worst pain he has ever felt –
“Lower back severe. [I have] got to lie down in bed, take a heap of these tablets. And I think last time I had it, I didn’t get up till about 11 in the morning … Can’t really do much.”[14]
[14]T25
41 The plaintiff is able to do some gardening, with his wife doing the heavier tasks. He can operate a pull mower which does not require him bending to start it.[15]
[15]T7
42 Bending over to do the ironing causes the plaintiff back pain. His wife does most of the ironing and the vacuuming. When they go shopping, he lifts the heavier items because he does not like his wife doing so.[16]
[16]T19
43 The plaintiff has occasional severe flare-ups of low back pain. He is unable to predict when these will occur. They are extremely incapacitating when they come on and he needs to lie down as soon as possible and wait for the pain to ease.
44 In October 2018, the plaintiff’s suffered a bad flare-up of his back pain. It started when he simply bent over out in his garden. The pain stayed at a very high level for about a week afterwards. He took a lot of painkilling medication during that time. He continued to work but found it very painful and difficult.
45 This flare up occurred when the plaintiff bent down, cleaning the spa in his backyard. This was the worst incident in recent times and he felt severe pain. He did not take any time off work or seek any medical treatment.[17]
[17]T6
46 The plaintiff did not take any time off after this flare up because he was unsure whether or not he would have been paid.[18] He just took a lot of painkillers and went back to work. It was a “total lie” to say he took no time off, as his symptoms were not severe.[19]
[18]T21
[19]T11
47 The plaintiff no longer has lower leg symptoms. His left leg is “pretty good”.[20]
[20]T7
48 Even though the plaintiff now works on light duties, his back pain increases by the end of each working day. Some days, he takes pain relief to be able to complete his work tasks.
49 Prior to injuring his back, the plaintiff loved ten-pin bowling. He played in a league once per week. He started playing at fifteen. The weekly competition was at AMF at Karingal.[21] As well as enjoying the sport itself, he found it good in a social sense. He no longer bowls because of his back pain and medical advice he has received to avoid bending. He misses it a lot.
[21]T8
50 The plaintiff had a try bowling about four years ago but it was too painful to continue. He has not played competition since his injury. He is too scared to play as the pain comes back bending over like the flare up last October.[22] He did not think he could resume competing, not without the help of painkillers.[23]
[22]T9
[23]T21
51 In the past, the plaintiff has renovated houses. He really enjoyed working on the houses and did his own painting and gardening and basic renovations without any issue. He can no longer to do these things because of the bending and lifting required. This situation is frustrating for him. He also enjoyed tinkering on cars but no longer does so because of the bending required.
52 The plaintiff painted the inside and outside of his house before his injury. He has paid other people to do later renovations.[24]
[24]T20
53 The plaintiff has problems getting in and out of his wife’s car.[25] He is comfortable driving his Mazda CX 5, an SUV.[26] He is able to polish the roof and bonnet of his car but needs painkillers if he has to bend to polish lower down the doors. He polishes his car once a year.[27]
[25]T21
[26]T10
[27]T16
54 The plaintiff’s sleep is often affected by back pain, particularly if he has had a day where he needed to do bending or lifting at work.[28]
[28]T10
55 The plaintiff regularly feels frustrated by his ongoing back pain and restrictions. He feels anxious about the future and whether he is going to be physically able to continue working until retirement age.
56 The plaintiff continues to work full time on modified duties. He works 12 hours shifts, four shifts on and five shifts off.[29] He often worked with back pain, but he put up with it as best he can. He needs to work and continue earning an income. In late 2018, he received two movie tickets from his employer as a reward for working twelve months without a sick day.
[29]T12
57 The plaintiff agreed at work he avoided lifting anything heavier than 10 kilograms as Dr Aliashkevich noted.[30]
[30]T17
58 The amount of time the plaintiff spends on his feet at work depends on the activity he is doing. If the pain is really bad, he takes painkillers at work. He takes medication when he needs it, not at a regular time each day.[31] He may take up to four tablets a couple of times a week. Other weeks, he does not take any.[32]
[31]T19
[32]T2
59 The plaintiff does an inspector’s job, inspecting the quality of the steel. The chairs provided at work are a bit old and he has to stand up a fair bit –
“These things of modifications I have always been a bit iffy on because work have done nothing about it.”[33]
[33]T23
60 The plaintiff thought he had earlier flare ups in November 2015 and March 2016.[34]
[34]T12
61 In late 2018, the plaintiff’s usual general practitioner moved interstate. Since then he has seen a different general practitioner but at the same clinic. The plaintiff takes Prodeine for pain relief. He continues to take Lexapro prescribed by his general practitioner. Prodeine has been prescribed since early last year but the plaintiff has taken it for three years.[35]
[35]T6
62 The plaintiff did not disagree that he took one Prodeine about every two days in late 2018 as Mr Carey noted.[36]
[36]T15
63 The plaintiff drinks a lot more alcohol now than he did prior to injuring his back. He drinks because he is bored and cannot do the hobbies he previously enjoyed, referred to in his earlier affidavit.
64 The plaintiff’s back pain has not improved. He knows he just has to put up with it and continue on as best he can.
The Plaintiff’s medical evidence – treaters
65 The plaintiff first presented to Mr Luke Poon for physiotherapy on 6 December 2014 for lower back pain that had begun to occur earlier that year. He reported painful symptoms in his back, as well as referral pain predominantly in the left leg.
66 Mr Poon then thought the plaintiff would require physiotherapy for four months.
67 Mr Craig Timms, neurosurgeon, first saw the plaintiff on 4 June 2015.
68 Mr Timms noted the plaintiff hurt his back whilst at work at BlueScope Steel, where he has worked for 27 years, in probably a repetitive lifting type job, setting up a machine.
69 The plaintiff reported quite severe back pain and left leg sciatica, which had gradually improved over time, with physiotherapy and epidural medicines. He was off all pain medication at that time. He was still doing physiotherapy weekly and was getting better. He had pain in the back and the left leg, which he had not had before. He was otherwise well apart from diabetes, which was stable.
70 On examination, the plaintiff had some mild reduction in straight leg raising, but good strength, tone, sensation and reflexes. His lumbar MRI scan showed a left L5-S1 disc protrusion.
71 Mr Timms thought if the plaintiff kept going with his current plan, on light duties, he would be more likely to enjoy resolution of the symptoms, but if had a flare-up, another epidural injection may be of benefit.
72 Mr Timms considered the very last resort would be surgery and thought at that stage, in the way the plaintiff was going, that this was unlikely to be required. The main thing was to stay on light duties until his symptoms resolve fully and he thought which should keep him in the best possible health.
73 Mr Timms re-examined the plaintiff on 16 November 2017.
74 Mr Timms noted the plaintiff had persistent disc injuries and bulges in his spine at L4-5 and L5-S1. At that time, when the plaintiff bended he got problems, but if he was not doing that he was pretty good and had remained at work on restricted duties.
75 Mr Timms considered that because this had been going on for four years now, he would be happy to say that plaintiff’s lower back was clearly a stabilised condition and his restrictions were permanent and he had to be on permanent light duties or alternative duties.
76 From Mr Timms’ point of view, the plaintiff did not need any surgery. It was just a matter of maintaining him with medicines as required and physical therapies. If he had a prolonged flare up, an epidural injection at L4-5 would probably do things a great deal of help. The last thing the plaintiff needed was basically surgery particularly if he is not getting any sciatica.
77 As of 27 February 2019, Dr Liyuna Arachchige at Cranbourne Park Family Care Clinic had only seen the plaintiff on a few occasions with his regular general practitioner, Dr Mar Mar Thi, having recently moved clinics.
78 In Dr Arachchige’s opinion, the plaintiff would not be suitable for pre-injury employment, however, he would be suitable for other alternative duties after a work capacity assessment.
79 Dr Arachchige considered the plaintiff’s condition to be permanent, with a possibility of deterioration with time and nature of his duties.
The Plaintiff’s medico-legal evidence
80 Dr Ales Aliashkevich, neurosurgeon, examined the plaintiff in October 2018.
81 The plaintiff then complained of lower back pain. On an ordinary day, he would rate the pain as about one out of ten. On a bad day, like last week when he was at home, leaning over to pick up an empty bucket his back pain felt like ten out of ten. This level of pain last occurred a couple years ago. He thought since then his back was better, but he realised it was not better and not going to get better. He used to have pain in his left calf, but this had not been present for a couple years. He now takes Panadeine forte as needed and an antidepressant. He did not need any anti-depressants before his injury.
82 As a result of his ongoing pain, the plaintiff was moderately limited in his domestic, social and recreational activities. His wife did do the most cooking or they ordered food. He knew that if he was to iron clothing, the bending over would cause pain. He was still able to clean but vacuuming caused pain, so he would take his tablets. He was able to look after his own self-hygiene, and go shopping. When shopping, he occasionally could lift bags with potting mix up to 25 litres.
83 When the plaintiff’s pain happened initially, he could not put on socks and shoes and his wife helped him. Initially their physical intimacy had been affected however this became better. When he was not working, the plaintiff sat at home and did nothing. If he was absent from work because of his pain, he took his personal sick leave, rather than leave from WorkCover.
84 The plaintiff was able to walk; however, on a good day his limit was three to four hours, on a not good day, he needed medication to walk. He finds getting up is a struggle, but once moving it is not as bad. On a good day, he can drive for up to an hour. On a bad day, he needs medication to drive 20 minutes to work. When his pain was worse until a couple years ago, he could not get into a regular sedan car. He had a SUV vehicle, so he was still able to drive. Sitting on a good day is fine for a few hours. On a bad day, he needed medication and to move after 30 minutes. Standing at work on a good day for about seven hours got painful. On a bad day, he needed tablets and just kept going.
85 The plaintiff was unable to resume his hobby of ten-pin bowling as he did not want to aggravate his back pain. He was unable to do gardening that he enjoyed before. A couple years ago, he got an easy start lawn mower. He used to enjoy renovating houses by painting or replacing guttering. He cannot do those tasks anymore. On one occasion, his stormwater pipe broke in the ground and he had to call a plumber. Previously he would have been able to dig and fix this himself.
86 On examination, the range of movements of the plaintiff’s lumbar spine was restricted. There was no significant tenderness or muscular guarding on palpation of the lumbosacral region.
87 Dr Aliashkevich diagnosed the following:
-Chronic mechanical and arthritic low back pain
-Lumbosacral spondylosis
-L5/S1 more than L4/5 intervertebral disc degeneration
-Left paracentral L4/5 and L5/S1 disc protrusions
-Low lumbar facet arthropathy
-Depression.
88 Dr Aliashkevich would place permanent restrictions on the plaintiff’s ability to perform heavy physical or manual labour and activity. He thought the plaintiff should not be required to lift weight in excess of 20 kilograms and should not be required to lift weight from below the knee or above the shoulder. He should also avoid repetitive bending, twisting and lifting activity in the work place if possible.
89 Dr Aliashkevich considered these restrictions would be of a permanent nature.
90 Having regard to the plaintiff’s persisting refractory pain, neurological signs and symptoms, treatment and medication requirements and functional limitation, Dr Aliashkevich considered the plaintiff restricted in the following activities:
-lifting and carrying weights over 10 kilograms
-regular or vigorous pushing/pulling
-using heavy tools
-heavy dragging and carrying
-turning and twisting
-squatting
-driving over 30 minutes
-stooping, bending, kneeling and crouching
-climbing steps or ladders
-walking on uneven grounds
-prolonged sitting, standing or walking over 60 minutes
-tolerating static postures for longer than 30 minutes
-exposure to vibrational jarring forces
-repetitive or sustained bending to reach below the knees.
91 Dr Aliashkevich thought the plaintiff had a capacity for full-time modified duties. He anticipated with appropriate management, the plaintiff would continue to have at least full-time capacity for modified duties into the foreseeable future.
92 Dr Aliashkevich considered the prognosis of the plaintiff’s condition to be satisfactory. He thought the plaintiff will be prone to a degree of degenerative progression at the L5-S1 motion segment which can be somewhat difficult to determine and predict. Further, he may well require anti-inflammatory and analgesic medication to manage his condition on a needs be basis under the supervision and prescription of his general practitioner.
93 Dr Aliashkevich thought if the plaintiff’s symptoms were to persist or worsen, a microsurgical discectomy and rhizolysis procedure would be an appropriate surgical strategy.
94 Dr Aliashkevich thought that following the Three Rules would give the plaintiff at least a 90 per cent chance of never experiencing an increase in pain and disability, or having to contemplate spinal surgery. Conversely, if he went on bending and lifting, either at home or in the course of his employment, he would almost certainly re-injure, and may be forced to resort to surgery.
95 Dr Aliashkevich considered the plaintiff to be able to do everything in terms of activities of daily living, except those activities requiring bending at the waist
96 In Dr Aliashkevich’s opinion, the plaintiff’s prognosis was guarded.
Investigations
97 Lumbosacral x-ray 9 March 2011:
“Minor facet joint arthropathy within the lower lumbar spine.”
98 Lumbosacral spine x-ray 3 January 2014:
“Findings:
No significant bony abnormality is demonstrated. Disc spaces appear preserved.
Early degenerative changes noted in right-sided sacroiliac joint, otherwise left joint appears essentially unremarkable.”
99 CT lumbosacral spine 1 April 2014:
“Findings;
Ll/2 and 12/3 levels appear unremarkable
L3/4 level; 'Minimal posteriorcircumferential disc bulge.
L4/5 level: Mild posterior circumferential disc bulge with slight encroachment upon spinal canal
L5/S1 level:
Mild posterior central disc bulge, worse within left-sided paracentral aspect and with slight encroachment upon left-sided lateral recess. Calcific focus noted in relation to right- sided SI nerve with ? significance.
MRI study would be helpful in further evaluation should there be clinical concern.”
100 MRI lumbosacral spine 25 August 2014:
“There is a mild disc bulge with left paracentral prot[r]usion at L5/S1 which contacts and slightly posteriorly displaces/compresses the traversing S1 nerve root on the left.”
101 MRI lumbosacral spine 22 March 2016:
“Disc disease at the lower two lumbar levels demonstrated.”
The Defendant’s medico-legal evidence
102 Mr Paul D’Urso, neurosurgeon, examined the plaintiff on 10 August 2015.
103 On examination, Mr D’Urso noted the plaintiff’s limb power as normal. His right knee reflex was absent, as was his left ankle reflex. Other reflexes were present. Plantar responses were down going. Sensation was intact. Straight leg raise was to 70 degrees. Hips were mobile and non-tender. The plaintiff could stand on his heels and toes and flex his spine so that he comes to 30 centimetres from touching his toes. He extended to 20 degrees.
104 Mr D’Urso noted the CT scan of 1 April 2014.
105 Mr D’Urso considered permanent restrictions on the plaintiff’s ability to perform heavy physical or manual labour and activity were appropriate. He should not be required to lift weight in excess of 20 kilograms. He should not be required to lift weight from below the knee or above the shoulder. He should avoid repetitive bending, twisting and lifting activity in the work place if possible. These restrictions would be of a permanent nature.
106 In Mr D’Urso’s opinion, the prognosis appeared to be satisfactory. The plaintiff will be prone to a degree of degenerative progression at the L5-S1 motion segment which can be somewhat difficult to determine and predict. He may well require anti-inflammatory and analgesic medication to manage his condition on a needs be basis under the supervision and prescription of his general practitioner. If his symptoms were to persist or worsen, a microsurgical discectomy and rhizolysis procedure would be an appropriate surgical strategy.
107 Mr D’Urso thought the plaintiff had capacity for full-time employment within restricted duties.
108 Mr D’Urso noted the plaintiff’s presentation with a history of back pain and left sided sciatica. He thought it would appear that work place activity appears to have precipitated the onset of the plaintiff’s symptoms and contributed to the development of an L5-S1 disc prolapse with left S1 nerve root compression.
109 Mr D’Urso considered the prognosis of the condition to be satisfactory. He thought the plaintiff had a partial incapacity of a permanent nature. Such incapacity would restrict him from performing heavy physical or manual employment beyond restrictions noted. Should the plaintiff’s symptoms persist or worsen, a microsurgical discectomy procedure would appear to be an appropriate option for him.
110 Associate Professor (Mr) Graeme Brazenor, neurosurgeon, examined the plaintiff on 22 July 2016.
111 On examination, the plaintiff told Mr Brazenor that he did not feel his pain had gotten any better over the previous twelve months. He felt that his condition had been static. He mentioned that a couple of months before he had bent down to pick up some sweepings off the floor of his workshop at home and was seized with severe instantaneous low back pain and had to take three or four days off work.
112 Mr Brazenor noted that chronically the plaintiff’s worst pain is allegedly transverse low back and radiates down the posterolateral aspect of the left thigh to the calf. He said that that leg pain is much less severe than it used to be.
113 In terms of activities of daily living, the plaintiff told Mr Brazenor that sitting is "alright” but after 30 or 40 minutes he has to get up and walk around. Standing is similarly limited. Lying in bed is of variable pain and the plaintiff volunteered that if he has pain in bed he would just roll over into a different position to relieve the pain. Walking was not very painful and if he does not have much to purchase at the local shops, he walks to and from.
114 At the time of examination, the plaintiff was taking Lyrica 75 milligrams twice daily and if he needs anything more than that he takes strong painkillers purchased over the counter.
115 In Mr Brazenor’s opinion the plaintiff injured one or both of his L4-5 and L5-S1 discs in late 2013, and on the balance of probabilities this was due to foe bending and lifting and twisting in his job as a head builder. Mr Brazenor thought these disc injuries are healing.
116 Mr Brazenor noted that the plaintiff been a model employee, losing no time off work despite two significant lumbar disc injuries which must have caused significant pain in the early phases. The plaintiff seemed to be very happy in his largely desk-based job now, free of hands-on head building activities requiring bending and lifting.
117 Mr Brazenor did not think there was any attempt by the plaintiff to exaggerate his pain or degree of disability today. On the balance of probabilities and taking the radiological record into account, Mr Brazenor believed the plaintiff has mild chronic low back pain and perhaps an echo of his previous left-sided sciatica at times. As illustrated by the plaintiff’s experience when bending down to pick up sweepings in his workshop at home a couple of months ago, he still has a liability to undo some of the healing in either of those lower two lumbar discs if he bends, lifts or twists.
118 Mr Brazenor gave the plaintiff the Three Rules for Living and told him that if he observes these assiduously, his L4-5 and L5-S1 discs will go on to complete healing. If he continues to observe the Three Rules, he will live a long and happy life (at least so far as his lumbar spine is concerned), and will likely work full time to normal retiring age at a non-bending, non-lifting job.
119 Mr Roy Carey, orthopaedic surgeon, examined the plaintiff on 11 October 2017.
120 The plaintiff told Mr Carey that following his injury in December 2013, he first went to his doctor on 29 December, but told Mr Carey that he had reported increasing low back discomfort (none to the legs at that time) in perhaps October 2013.
121 The plaintiff then remained at normal duties/normal hours, and only purchased over the counter medication for the pain.
122 At the time of the lumbar x-ray in early 2014, the plaintiff was complaining of increased left leg symptoms, and as this was not resolving an MRI scan was undertaken on 24 August 2014.
123 The plaintiff told Mr Carey the September 2014 injection may have produced help for about 3 months but then the leg symptoms returned.
124 Mr Carey noted the plaintiff remembered commencing physiotherapy with Mr Poon but found this to be unhelpful, and ceased all physiotherapy in early 2016. Following a consultation with Mr Timms on 4 June 2015, the plaintiff commenced alternative/lighter duties, although remained on normal hours, continued physiotherapy treatment and took over the counter pills. This situation continued as at the date of the report.
125 Mr Carey noted that in November 2015, the plaintiff had an exacerbation of his back discomfort (which settled somewhat), and then in early 2016 had a further exacerbation of his back pain when he simply bent over at home, and on this occasion had one week off work.
126 The plaintiff saw Mr Timms perhaps a month prior, when a further scan was undertaken, but he had not been back to Mr Timms to discuss the results.
127 Mr Carey thought given the possibility of surgical intervention being discussed and possibly agreed to/accepted, the situation should be considered unstable as far as the plaintiff’s impairment assessment is concerned until that decision is determined.
128 The plaintiff had just lumbosacral area back pain – which was perhaps a little more to the left than the right. He no longer had limb symptoms, and the trouble did not refer proximally. Whilst he had constant discomfort this varied with posture and movement, and can be almost completely removed with tablet medication.
129 The plaintiff’s sleep was disturbed sometimes by his back and on occasion he may awake stiff and sore in the mornings.
130 The plaintiff’s principal disability was in bending/leaning forward, for example when doing the dishes.
131 The plaintiff lived with his wife in a house with a garden. She did the heavier gardening duties but he may for example prune roses at waist level. The plaintiff had a mower with an auto start.
132 Mr Carey noted the plaintiff’s ability to self-care as well as that he was previously an enthusiastic ten-pin bowler but had not done it for perhaps two years.
133 On examination, the plaintiff was a pleasant, direct, matter of fact and indeed stoic witness to his problem.
134 Mr Carey opined that the plaintiff had sustained aggravation of pre-existing lower lumbar spondylosis. He had ongoing back pain with no lower limb symptoms and the neurological signs present are much more likely to relate to his diabetes than any spinal disorder.
135 Mr Carey diagnosed chronic low back pain due to aggravation of pre-existing, lower lumbar disc degeneration. In particular there were no non-organic signs of abnormal illness behaviour.
136 Mr Carey re-examined the plaintiff on 30 January 2019.
137 The plaintiff considered that things had not changed much since the initial examination. He still had the same midline lumbosacral area back pain, present constantly but varying in intensity according to posture and activity. He no longer had any lower limb neurological symptoms and had not for some years.
138 The plaintiff’s sleep was then occasionally disturbed, depending on what activity he was undertaking during the day. He could drive his SUV comfortably, but struggled in his wife's lower car. He remained able to self-care. His wife continued to care for the garden.
139 The plaintiff had not been able to resume any hobbies or activities since the initial examination.
140 The plaintiff had a recurrent episode of back discomfort when he simply bent over in the garden late-October 2018. He told Mr Carey that he self-medicated with some analgesia, and battled on at work as if he did not attend work he was not paid. The pain settled within a week or so such that it would be called an exacerbation not an aggravation. He told Mr Carey that he had one exacerbation every year or two and had since the injury.
141 The plaintiff was then continuing to take Prodeine 500 milligram – 15 milligram one or two per day when needed. He had four tablets left out of a box of 24 and had taken 20 over the six weeks since prescription.
142 The plaintiff felt guilty that he was not able to help his wife with heavier home duties, and in particular weeding the vegetable garden. He was able to polish the roof and the bonnet of his cars, but required analgesic if he tried to polish lower down the doors. He felt guilty that he was unable to share the heavier home duties with his wife. He was still restricted with repetitive bending activities which increased his discomfort and was scared by the prospect of further exacerbations of pain which come on unexpectedly.
143 The plaintiff told Mr Carey he had been upset by the medico-legal process, and in particular alleged surveillance by his Insurer, such that on one occasion he had reported this to the police. He described this as “stalking”.
144 Mr Carey thought that the plaintiff remained largely the same as when he last reported about fifteen months ago and the symptoms were much the same as the physical signs.
Investigations
145 Lumbar spine MRI 7 September 2017:
“There is disc protrusion at L4/L5 and L5/S1 which touch the left L5 and the left S1 nerve root as they pass through the lateral recess, respectively.”
Overview
146 There is no dispute but that the plaintiff suffered a compensable injury involving his lumbar spine during the course of his employment with the defendant as a steel worker from 2013.
147 The plaintiff’s claim was accepted and benefits were paid pursuant to s98.
148 The consensus of medical opinion is that, as a result of his heavy work, the plaintiff aggravated pre-existing degenerative disease at L4-5 and L5-S1 lower lumbar spondylosis.
149 Following a lumbar MRI scan of 7 September 2017, it was reported there was a disc protrusion at those levels which touched the left L5 and the left S1 nerve root as they passed through the lateral recess.
150 There is no suggestion the plaintiff suffers from any health issues unrelated to his employment with the defendant, or that his present lumbar impairment lacks a substantial organic basis.
151 Counsel for the defendant conceded compensable injury and some impairment consequences but submitted such consequences were not more than significant or marked:[37]
“He is a man who is subject to certain restrictions but he doesn’t have a serious injury when compared with the range of impairments of others with low back injuries.”[38]
[37]T25
[38]T29
Credit
152 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[39]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. …
[39](2010) 31 VR 1 at paragraph [12]
153 There is no suggestion that there were any credit issues in this case. All doctors have indicated they found the plaintiff to be a straightforward man.
Pain
154 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[40] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).
[40](ibid) at paragraph [3]
155 The plaintiff has consistently complained of variable back pain, depending on his level of activity, since the injury. On occasion, he has severe flare ups, which incapacitate him and cause him to need to lie down and take tablets. He described episodes of that nature on almost a yearly basis, the most recent being in October 2018.
156 Counsel for the defendant submitted the plaintiff is not suffering from severe pain, with pain on an ordinary day rated at one out of ten;[41] however, the plaintiff’s explanation of this rating suggests this level of pain is far more than the number one would suggest.[42]
[41]T28
[42]T30
157 Further, the flare ups are of significance, although infrequent, during which the plaintiff can experience pain of up to ten out of ten.
Treatment
158 Whilst counsel for the defendant described the plaintiff’s treatment regime as “moderate at best”,[43] the plaintiff has undergone a range of conservative measures with little long lasting success and continues to require prescription painkilling medication, Prodeine.
[43]T26
159 The plaintiff’s had physiotherapy for in excess of twelve months. This treatment ceased in January 2016. He had an epidural injection in 2014. He continues under the care of his general practitioner in Cranbourne, whose practice initially referred him to Mr Craig Timms, neurosurgeon, in 2015.
160 The plaintiff cannot be criticised for not undertaking further treatment as none has been suggested, with Mr Brazenor advising against further hands on treatment.[44]
[44]T32
161 The plaintiff now takes Prodeine on an ‘as needs’ basis. He admitted frankly that some weeks he does not require the medication at all but, during other weeks, he may take four tablets at the one time.
162 Whilst the present intake of medication is not at the highest level, there had been significant medication in the past. The plaintiff’s evidence of a change to a lighter painkiller on the basis of doctors’ advice as to potential side effects was not challenged.[45]
[45]T31
163 In earlier days, the plaintiff was prescribed Tramadol and Lyrica for his back pain but, due to his general practitioner’s concern about the side effects thereof, that medication ceased.[46]
[46]T31
164 In Kelso v Tatiara Meat Company Pty Ltd,[47] Dodds-Streeton JA noted that where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[47][2007] VSCA 267 at paragraph [199]
Restrictions
165 As a result of his back injury, the plaintiff is restricted in a range of movements, particularly bending and leaning forward in simple everyday and work activities. I accept a “permanent embargo on bending” is a very significant matter.[48]
[48]T30
166 All medical practitioners have found the plaintiff has these restrictions, particularly Mr Brazenor, which result in problems for him at work and in his daily activities.
167 All examiners found a restriction of lumbar movement on examination and suggested that the restrictions should therefore be placed on a range of activities.
Work
168 The plaintiff has only ever undertaken manual work, having worked for the defendant for more than a quarter of a century as a steel worker, building heads.
169 The plaintiff has been unable to engage in those duties freely since the injury, having taken heavy painkillers to do the work until June 2015, and then being advised by his general practitioner to avoid heavy lifting tasks. Restrictions have been imposed accordingly and will continue until retirement age- quite a long time for the plaintiff who is now only fifty-one.[49]
[49]T31
170 The December 2018 certificate from the Cranbourne Clinic is typical of those that the plaintiff has provided to his employer since mid 2015.
171 Whilst the plaintiff has not had significant time off work due to his back injury,[50] three days in November 2015, four in April 2017 and he received an award for no days off in 2018, I accept his lack of time off reflects to a large extent his stoicism and good work ethic.
[50]T28
172 As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[51] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[51][2008] VSCA 260 at paragraph [4]
173 The consensus of medical opinion is that the plaintiff no longer has a capacity for unrestricted physical work, which is a significant consequence for a man with a history of principally manual work who is still aged only fifty-one.[52]
[52]See Ellis Management Services v Taylor [2013] VSCA 326 at paragraph [35]
174 The plaintiff’s current general practitioner has imposed a 5-kilogram lifting limit on his working activities, noting limited tolerances as to standing, sitting and a number of other movements. All medical practitioners consider that those restrictions are appropriate.
175 The plaintiff continues to perform lighter duties despite pain and restriction, at times requiring painkillers at work.[53]
[53]T30
176 The consensus of medical opinion is that the plaintiff has a partial permanent incapacity affecting his work and other activities.
177 In addition to pain and restriction of movement, the plaintiff has complained of problems sleeping due to back pain.[54]
[54]T32
178 The plaintiff’s pre-accident hobby was ten-pin bowling in a weekly league competition. This was an activity he enjoyed, both for the sport and social interaction. Since the injury, he has attempted to go bowling by himself, but could not persist because of the pain when bending to bowl.[55]
[55]T31
179 Using his previous work experience as a painter/decorator, the plaintiff was able to paint the inside and outside of his house which he was renovating. Due to his back injury, he is no longer able to do these sorts of tasks because of the bending involved.
180 Taking into account all of the evidence, I am satisfied the consequences to this plaintiff are “serious” within the statutory definition.
181 Further, as there has been no significant improvement in the plaintiff’s back condition despite conservative treatment for over five years, his impairment is permanent.
182 Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
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