Olsen v Victorian WorkCover Authority
[2023] VCC 2202
•8 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00362
| JAN OLSEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 August 2023 | |
DATE OF JUDGMENT: | 8 December 2023 | |
CASE MAY BE CITED AS: | Olsen v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2202 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – spinal injury – pain and suffering – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325 and s335
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to bring common law proceedings for damages for pain and suffering in respect to a spinal injury suffered in the course of his employment and on 1 March 2021.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham with Mr J Harris | Maurice Blackburn Lawyers |
| For the Defendant | Mr C Miles | Lander & Rogers |
HIS HONOUR:
Introduction
1The plaintiff, Mr Jan Olsen, is seventy years of age. He suffers from an intellectual disability. Mr Olsen had limited schooling.
2Mr Olsen lives in a de facto relationship with Ms Fiona Kouroulis. They have lived together since mid-2021. They have been in a relationship since November 2009.
3Mr Olsen, in the mid-1990s, suffered a back injury, for which he underwent surgery. He said he made a good recovery and returned to his normal work.
4In August 2003, Mr Olsen commenced work with OC Connections Enterprises (“OC Connections”) in Centre Road, Oakleigh. He was employed as a picker and packer.
5OC Connections provides supported employment opportunities for persons suffering disability.
6Mr Olsen said he suffered a back injury in the course of his employment with OC Connections by reason of:
(a) the nature of his employment over time;
(b) specifically on 1 March 2021, when lifting, carrying and manoeuvring boxes.
7Mr Olsen said this injury forced him to cease work and seek medical treatment. Mr Olsen has not worked since 1 March 2021.[1]
[1]Mr Olsen’s affidavit, sworn 26 August 2022, paragraphs [8]-[11] at Plaintiff’s Court Book (“PCB”) 5-6; WorkCover Claim Form at PCB 39-42; the letter attached to the WorkCover Claim Form at PCB 85; and Mr Olsen’s oral evidence a Transcript (“T”) 22 ꟷ T25.
8Mr Olsen said, since March 2021, he has suffered ongoing back pain and pain-related restriction. He said this impacts him in many ways. Mr Olsen said that his back injury is a “serious injury” for pain and suffering purposes.
9The Victorian WorkCover Authority (“VWA”) is the worker’s compensation insurer for OC Connections. The VWA conceded that Mr Olsen did in fact suffer a back injury in the course of employment with OC connections. However, they said:
(a) any consequences of this back injury have ceased;
(b) alternatively, the consequences of this back injury are not serious.
What is the nature of Mr Olsen’s application?
10This is an application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Mr Olsen relies solely on paragraph (a) and the definition of “serious injury” in s325(1). That is, his spinal injury (being his lower back injury), is a “permanent serious impairment or loss of a body function”.
11For Mr Olsen to be successful, he must establish that the consequences from his spinal injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, are “more than significant or marked” and “at least very considerable”, as per the narrative test set out in s325(2)(b) and s325(2)(c) of the Act.
12It is Mr Olsen who has the onus of proof.
What are the issues for the Court to determine in Mr Olsen’s application?
13At the commencement of this application, and in final submissions, the VWA said:
(a) Mr Olsen’s credit was not in issue;
(b) that while they conceded Mr Olsen initially suffered a back injury in March 2021, the effects of that injury had resolved;
(c) in the alternative, this is a “range case”, and Mr Olsen had not discharged his onus.
14In the course of the application, it became apparent to the Court that there were two additional matters which may impact the application:
(a) given Mr Olsen had sustained a lower back injury in the mid-1990s and underwent spinal surgery in 1996, whether there was a need to undertake an analysis in accordance with the principles set out in Petkovski v Galletti;[2]
(b) given Mr Olsen had suffered a stroke in April 2022, the need to disentangle the consequences of that comorbidity in accordance with principles set out in Peak Engineering & Anor v McKenzie.[3]
[2][1994] 1 VR 436
[3][2014] VSCA 67
15That said, the issues for the Court to determine in this application come down to:
(a) Mr Olsen’s credit and reliability and whether I can accept his evidence;
(b) the medical evidence to be accepted and the assistance that the evidence provides;
(c) whether the effects of the back injury suffered by Mr Olsen in the course of his employment with OC Connections have ceased;
(d) any disentanglement or other analysis which the Court needs to undertake to properly identify the consequences flowing from the subject injury;
(e) whether Mr Olsen’s spinal injury satisfies the “serious injury” test.
Mr Olsen’s credit
16The VWA said this was not a credit case. That was an appropriate concession.
17Mr Olsen, when giving his oral evidence, was thoughtful, earnest and clearly did the best he could to answer truthfully. Mr Olsen answered questions in a very literal manner. He was economical with his words.
18I accept Mr Olsen to be a genuine man with a strong work ethic.
19I also had the benefit of the evidence of his partner, Ms Kouroulis. This evidence provided further insight and understanding of Mr Olsen’s circumstances. I found Ms Kouroulis’s evidence helpful.
20It is in the context of these observations that I assess the merits of this application.
The medical evidence
21I will analyse the evidence of the treating medical practitioners before moving on to the medico-legal evidence. I will then review the medico-legal evidence in chronological order.
The treating medical practitioner evidence
22Mr Olsen said he had been a long-time patient of Dr Andrew Bridge, general practitioner, at the Poath Road Clinic. The clinic records dating back to 2005 confirmed this to be so.
23Before detailing my analysis of the general practitioner evidence, it is appropriate to acknowledge that at some time subsequent to March 2021:
(a) the Poath Road Clinic was absorbed into Medi7 Pty Ltd (“the Medi7 clinic”);
(b) Dr Bridge retired;
(c) Dr Leonard Popp, at the Medi7 clinic, became Mr Olsen’s principle general practitioner.
24That said, moving firstly to the Poath Road Clinic records leading up to March 2021, I note:
(a) Over the years, Mr Olsen was a regular attendee at the Medi7 clinic. The majority of his consultations were with Dr Bridge.
(b) I was not taken to any consultations where Mr Olsen complained of lower back problems between 2005 and February 2014. I could not find any.
(c) 20 February 2014: Mr Olsen consulted Dr Bridge, complaining of right hip pain. Dr Bridge thought this was probably sciatica and prescribed Mobic.[4]
(d) 24 February 2014: Mr Olsen consulted Dr Bridge, who recorded “pain gone”.[5]
(e) 28 September 2015: Mr Olsen consulted Dr Bridge complaining of mid-lower back pain. On examination, no abnormality was detected.[6]
(f) In subsequent consultations in 2015 through to December 2020, there was no further mention of back problems.
(g) 4 January 2021: Mr Olsen consulted Dr Bridge complaining of lower back pain for a couple of days. Dr Bridge prescribed Tramadol.[7]
(h) 13 January 2021: Mr Olsen consulted Dr Bridge. It was recorded “[b]ack pain settled”.[8]
[4]PCB 48
[5]PCB 49
[6]PCB 53
[7]PCB 65
[8]PCB 66
25I pause here to acknowledge two matters before moving to the first consultation at the Poath Road Clinic subsequent to the 1 March 2021 back injury. I note:
(a) as previously set out, Mr Olsen’s application relies upon both the nature of his employment between 2003 and 1 March 2021, and the specific events of 1 March 2021;
(b) the letter attached to Mr Olsen’s WorkCover claim form, where Mr Olsen said, in explaining the circumstances of his back injury:
“I’VE BEEN LIFTING BOXES ON AND OFF IN THE LAST 17 YEARS AT WORK.
IN THE LAST FEW MONTHS RALPH MY SUPERVISOR GOT ME TO LIFT BOXES AT TIMES ON MY OWN OTHER TIMES HE, OR OTHER WORKMATES WOULD HELP ME. AND. I WOULD HELP LIFT BOXES FOR THEM. THEN I NOTICE PAIN ON MY BACKSIDE THE NEXT DAY.”[9]
[9]PCB 85
26Moving now to Mr Olsen’s attendance at the Poath Road Clinic on 4 March 2021. He consulted Dr Jennifer Rothfield. Dr Rothfield recorded:
“Surgery Consultation
has had back pain since Tuesday
was doing some lifting at work
packaging worktold the supervisors
works OC connections
1088 Centre Road Oakleigh South
has tried panadol
right side and going down the right leg
was lifting on the Monday
noticed the pain when woke up
no tingling or numbness
no weakness, just pain”[10]
[10]PCB 67
27Dr Rothfield certified Mr Olsen off work. Mr Olsen has not returned to work since.
28Mr Olsen next attended at the Poath Road Clinic on 10 March 2021 and saw Dr Bridge. On this day he told Dr Bridge that his back was “not too bad”.[11]
[11]PCB 68
29At his further consultations at the Poath Road Clinic in March, April and May 2021, Mr Olsen complained of ongoing back pain. Mr Olsen was:
(a) prescribed Panamax and Tramal;
(b) referred for neurosurgical assessment;
(c) referred for physiotherapy.
30On 26 May 2021, Mr Olsen consulted Mr Chris Xenos, adult and paediatric neurosurgeon.
31Mr Xenos, in his reporting correspondence to Dr Bridge after this consultation, said:
(a) Mr Olsen had recovered reasonably well from his 1996 spinal surgery and he had resumed working in a foundry and then seventeen years in packaging;
(b) in March 2021, as a result of repetitive lifting, Mr Olsen had experienced sudden onset of lower back pain and right leg pain;
(c) physiotherapy had been of no assistance;
(d) Mr Olsen’s lumbar spondylosis was severe, this explained his back pain;
(e) he was particularly interested in Mr Olsen’s right leg pain;
(f) he recommended an MRI scan be undertaken;
(g) he prescribed Mr Olsen Prednisolone;
(h) he was concerned about the potential for Mr Olsen suffering chronic back pain from here on.[12]
[12]PCB 15-16
32An MRI scan was undertaken on 30 July 2021.
33This MRI scan revealed moderate disc bulging at L3-4, L4-5 and L5-S1. There was foraminal narrowing and impingement on both the L4 and L5 nerves. There was also chronic marrow oedema to L3-4 and L4-5. Scarring was present at the site of the previous L4-5 surgery.[13]
[13]PCB 27-28
34Mr Olsen re-attended Mr Xenos on 2 September 2021. At this time, Mr Olsen told Mr Xenos he was not suffering right leg pain.[14]
[14]PCB 27
35Mr Xenos, in his reporting letter to Dr Bridge, that said:
(a) Mr Olsen’s “spine is awful”;[15]
(b) Mr Olsen’s referred leg pain was again his priority;
(c) the Prednisolone had seemed to have helped;
(d) given the complexity of Mr Olsen’s problems, and that he was now suffering back pain alone, Mr Olsen should be managed conservatively;
(e) he had strong reservations about Mr Olsen returning to work where there was repetitive bending, lifting and twisting required;
(f) surgery would be the last resort and only if the leg pain became unbearable.[16]
[15]PCB 15
[16]PCB 15-17
36Mr Olsen has not returned for further assessment by Mr Xenos.
37Referring now to the physiotherapy treatment received by Mr Olsen.
38Mr Olsen attended the Glen Eira Physiotherapy Centre. There, he consulted Ms Carolyn Lockman, physiotherapist.
39Ms Lockman said:
(a) Mr Olsen sustained a lower back injury while lifting heavy boxes in March 2021;
(b) since then, Mr Olsen has suffered lower back pain and right radicular pain;
(c) objectively, movements into the lumbar ranges reproduced pain;
(d) Mr Olsen’s intellectual disability made following instructions challenging and, at times, treatment was counterproductive;
(e) manual traction amplified Mr Olsen’s pain;
(f) ongoing physiotherapy would not be helpful for Mr Olsen;
(g) alternatively, conservative treatment in the form of oral pain management, hydrotherapy, or a guided nerve root injection, may help.[17]
[17]PCB 19-20
40Moving back to the general practitioner evidence.
41Subsequent to Mr Olsen’s assessment by Mr Xenos and his discontinuation of physiotherapy, there are limited ongoing consultations at either the Poath Road Clinic or the Medi7 clinic which refer to Mr Olsen’s back problems.
42Of these, I note:
(a) 25 November 2021: Dr Bridge noted Mr Olsen’s pain had seemingly improved. He prescribed Tramal.[18]
(b) 5 January 2022: Dr Popp recorded that Mr Olsen still had back pain.[19]
(c) 25 March 2022: Dr Bridge recorded ongoing back pain.[20]
(d) 22 April 2022: Dr Bridge recorded Mr Olsen wanted to return to work on light duties as he was bored at home.[21]
(e) 25 May 2022: Dr Popp obtained a history of ongoing back pain through to the right thigh.[22]
(f) 22 June 2022: Dr Bridge recorded:
(i)Mr Olsen still wanted to try a return to work;
(ii)the back pain remained unchanged.[23]
[18]PCB 77
[19]Ibid
[20]PCB 80-81
[21]PCB 81
[22]Ibid
[23]Ibid
43Moving to Mr Olsen’s consultation with Dr Popp on 5 June 2023.
44The VWA said this consultation was effectively in the form of a medico-legal assessment. I agree.
45However, putting this consultation into context:
(a) Mr Olsen conceded he was not attending at his general practitioner regularly, as he had been told there was nothing further that could be done.
(b) I accept that:
(i)apart from surgery, which was not recommended, only conservative treatment options remained;
(ii)physiotherapy had proved to be of no assistance;
(iii)in the circumstances where Mr Olsen was prepared to rely upon over-the-counter medication, he had a reasonable explanation why he was not attending regularly at the Medi7 clinic.
46Moving back to Dr Popp’s evidence.
47I refer to Dr Popp’s clinical notes of 5 June 2023. They record:
“review back pain
letter for solicitor
not worked since 2021lifting boxes with bolts in 2021.
Examination:
has back pain radiates to right leg below knee
used to go to gym in St kilda. mens shed, go to theatre basically quite active before this injury. used to like travelling interstate.
now at home reads books and watches TV
can walk short distances sometimes up to 10 minutes. can go shopping. can’t do any lifting .
Can do ADLs independent some times needs help.
9/4 21 CT right sided narrowed exit foramina
mood down used to be active and motivated.
uses panadol and linament.
not doing rehab or hydrotherapy.
had CVA 2022.
? had m aged care assessment
Examination:
able to get up on the coutch.
no ankle jerks
no knee jerks
? right lateral power leg minor sensory change.
SLR poor on both sides to 45 deg
did not induce sciatic pain? slightly weaker righ knee extension.
Reason for visit:
Sciatica
Management:
To do rehab for tight hamstrings.”[24]
(sic)
[24]PCB 83-84
48These notes are effectively repeated in Dr Popp’s medical report of 6 June 2023.[25]
[25]PCB 21-24
49I accept what was recorded by Dr Popp to be generally consistent with Mr Olsen’s evidence.
50From the treating medical practitioners’ evidence, I accept:
(a) While Mr Olsen had back problems in the mid-1990s and underwent surgery in 1996, he made a good recovery. There were very limited complaints of any back problems prior to 2021 and any such complaint was made while Mr Olsen was working with OC Connections.
(b) Mr Olsen, in March 2021, developed significant lower back pain and right radicular pain. This led to the range of assessments and treatments as outlined.
(c) While the right radicular pain settled, the lower back pain has not. The treating medical evidence is consistent with Mr Olsen’s evidence of suffering chronic back pain.
(d) Mr Olsen has been provided, and accepted, advice that surgery is not an option.
The medico-legal evidence
51Moving now to the medico-legal evidence.
Dr Louise Barberis, occupational physician – report dated 8 September 2021[26]
[26]DCB 4-8
52Dr Barberis assessed Mr Olsen for the VWA.
53Dr Barberis:
(a) Obtained a history of the 1996 back injury/surgery. Mr Olsen told her that he had a reasonable result and occasional mild lower back pain since.
(b) Recorded that, on 1 March 2021, while carrying heavier-than-usual boxes, Mr Olsen developed lower back pain. She recorded that Mr Olsen saw his general practitioner, was referred to physiotherapy and had a CT scan.
(c) Noted Mr Olsen found physiotherapy was of no benefit.[27]
[27]DCB 5
54Dr Barberis, on specific questioning by the VWA, said:
(a) Mr Olsen had suffered injury by way of an aggravation of pre-existing lumbar degenerative spondyloarthropathy, resulting in lower back pain with sciatica. That aggravation had not resolved.[28]
(b) Mr Olsen did not have a current capacity for alternative or modified duties due to persisting pain and restricted physical tolerances.[29]
(c) The aggravation which Mr Olsen had suffered on 1 March 2021 had not resolved and continued to materially contribute to the claimed injury.[30]
(d) Mr Olsen’s current treatment was appropriate and is conservative in nature.[31]
[28]Question 1, DCB 6 and Question 2, DCB 7
[29]Question 5, DCB 7
[30]Question 8, DCB 7
[31]Question 10, DCB 8
Dr David Ho, occupational health consultant – two reports dated 9 March 2022 and dated 5 May 2022
55Dr Ho assessed Mr Olsen on behalf of the VWA.
56While Dr Ho provided a series of reports,[32] he only met Mr Olsen once, being 8 March 2022.
[32]DCB 23-25 and DCB 14-22
57In the course of this application, much was made by the VWA that Dr Ho had attended at the worksite of OC Connections. The VWA contended, given such attendance at the worksite, that Dr Ho’s evidence should be preferred.
58Dr Ho said, in one of his 9 March 2022 reports, that:
“In my opinion he had most likely sustained a mechanical strain in his lower back with likely aggravation of the above significant preexisting multilevel degenerative changes in his lumbosacral spine.”[33]
[33]DCB 19
59Dr Ho went on to say:
“After today’s clinical examination I believe he currently has a symptomatic significant degenerative changes (sic) in his lumbosacral spine. In the time off work I believe he has recovered to a level where he has reasonable capabilities.”[34]
[34]Ibid
60Dr Ho, in the other report of 9 March 2022, said:
“Due to his intellectual impairment, it was difficult to assess his symptoms or any symptoms prior to his accident at work to determine if he has recovered to the level he was prior to the incident. Regardless based on the observation and the findings on clinical examination I believe he has most likely recovered to the level he was before the reported incident in March 2021. Hence in my opinion he has recovered from the likely injury sustained in March 2021. This will be confirmed further during the worksite visit.”[35]
[35]DCB 10
61Having attended at the workplace of OC Connections, Dr Ho said:
“His pre injury duties do not involve any heavy lifting or manual handling and he works at his own pace cutting and sealing plastic bags and attending to the skin packing or sealing machine. He may pack and label items for carbitools. Again the process is broken up into different tasks for the person with disabilities.
Mr Olsen has been doing the above duties for the duration of his employment.”[36]
[36]DCB 12
62Dr Ho went on to say that Mr Olsen could return to his pre-injury work, as it was of “a relatively light nature”.[37]
[37]DCB 12
63Dr Ho went on to say:
“It appears that Mr Olsen has decided to retire and I had explained to Mr Olsen during the examination that that is his wish but under workcover as he is still providing workcover certificate he has to return to work if suitable duties are available.
As his pre injury duties are well within his current capabilities he should return to his pre injury duties and hours and subsequently retire to go on the pension.”[38]
[38]DCB 13
64I pause here to say that:
(a) Dr Ho did not give any heed to Mr Olsen’s letter which accompanied the claim form.
(b) I do not accept Dr Ho’s assertion in respect to the nature of Mr Olsen’s work.
(c) I accept Mr Olsen, in the course of his employment, and, in particular, on 1 March 2021, was required to lift, carry and manoeuvre heavy boxes.
(d) I do not accept Mr Olsen had decided to retire. To the contrary, I find that Mr Olsen:
(i)had a strong work ethic;
(ii)missed his work; and
(iii)would have returned to work if circumstances would have allowed.
(e) It is not the role of a medico-legal assessor to provide the explanations and make the recommendations to Mr Olsen as Dr Ho did.
65Finally, I note Dr Ho said that Mr Olsen’s compensable injury had “fully resolved”.[39]
Mr Roy Carey, orthopaedic spine surgeon – report of 1 June 2022[40]
[39]Question 9, DCB 21
[40]PCB 26-33
66Mr Carey assessed Mr Olsen for the VWA on 1 June 2022.
67Mr Carey said Mr Olsen was a direct witness and “extremely economic with his words”.[41] That accords with my observations.
[41]DCB 28
68Mr Carey said:
(a) Mr Olsen continued to suffer lower back pain and right lumbosacral, buttock and posterior thigh pain to the knee;[42]
(b) Mr Olsen’s current situation was produced by the subject injury;[43]
(c) his diagnosis was of an aggravation of lower lumbar spondylosis with lower back and lower limb symptoms, but in the absence of radiculopathy;[44]
(d) the prognosis was for continued discomfort into the foreseeable future;[45]
(e) Mr Olsen was a pleasant and genuine witness to his complaints with no evidence of embellishment.[46]
[42]DCB 27
[43]Question 1.2, DCB 29
[44]Question 4.1, DCB 29
[45]Question 4.2, DCB 29
[46]Question 9, DCB 31
Dr Justin Lewis, psychiatrist – report 2 June 2023
69Dr Lewis assessed Mr Olsen for his solicitors on 2 June 2023.[47]
[47]PCB 29-34
70This is not a ss(c) case. In any event, Dr Lewis did not consider Mr Olsen’s adjustment deficiencies could constitute a formal psychiatric diagnosis.
Mr Mohammed Awad, neurosurgeon and spinal surgeon – report 18 July 2023
71Mr Awad assessed Mr Olsen for his solicitors on 18 July 2023.[48]
[48]PCB 35-38
72Mr Awad obtained a history that, on 1 March 2023, Mr Olsen was asked to lift some heavy boxes by his supervisor and, in doing so, suffered back and right leg pain.
73Mr Awad outlined the relevant history of Mr Olsen’s medical assessment and treatment.
74On examination, Mr Awad found:
“On examination today, he is a gentleman who clearly presents with some slowing of conversation and thought. He is able to walk slowly, but without any significant gait abnormality. He does have limited flexion to approximately 70 to 80 degrees and very limited extension to only 10 degrees or so. He does have good power in both lower limbs although the right side is somewhat affected by pain. Reflexes were present bilaterally. Sensation was somewhat diminished in right L5 five distribution.”[49]
[49]PCB 37
75Mr Awad said that Mr Olsen had suffered an aggravation of lumbar spondylosis as a result of the work incident.[50]
[50]PCB 37
76Mr Awad went on to say:
(a) Mr Olsen did not have capacity for his pre-injury employment. This incapacity for work was permanent.
(b) Mr Olsen required ongoing conservative care.
(c) Mr Olsen would continue to suffer ongoing pain into the foreseeable future.
(d) There was an organic injury suffered in the course of Mr Olsen’s employment with OC Connections.
(e) The disability and incapacities flowing from the work injury would continue into the foreseeable future.[51]
[51]Ibid
What conclusions do I reach from the medical evidence?
77I accept Mr Olsen:
(a) suffered an organic injury to his back in the course of his employment with OC Connections;
(b) continues to suffer the effects of that injury and the consequences which flow from it;
(c) will continue to suffer from the back injury and the consequences into the foreseeable future.
78I prefer the evidence of Mr Awad and Mr Carey to that of Dr Ho. In rejecting Dr Ho’s opinion in respect to the cessation of the effects of Mr Olsen’s work-related back injury, I find:
(a) Dr Ho’s evidence is contrary to the tenor of the treating medical practitioner evidence;
(b) Dr Ho’s conclusions are based on presumptions in respect to Mr Olsen’s work at OC Connections which I do not accept;
(c) Dr Ho expressed conclusions about Mr Olsen’s motivation to work which I do not accept;
(d) Dr Ho’s conclusions are contrary to the opinions of an orthopaedic surgeon and a neurosurgeon whose evidence I prefer;
(e) Dr Ho’s conclusions run contrary to the evidence of Mr Olsen which I accept;
(f) Dr Ho’s conclusions run contrary to the evidence of Ms Kouroulis which I accept.
79It follows that I reject the VWA submission that I should prefer the evidence of Dr Ho.
Have the effects of Mr Olsen’s compensable injury ceased?
80For the reasons outlined, I do not accept Dr Ho’s evidence. It follows that I do not accept the VWA submission that any impact to Mr Olsen resulting from the accepted compensable back injury has ceased.
Does Mr Olsen face any Petkovski v Galletti issue?
81While the VWA did not specifically identify and take the Petkovski v Galletti point, it is a matter which, on one view of the evidence, may be of relevance. For completeness, I will address the issue.
82Firstly, I refer to the observations made by Mr Carey in respect to the relevance of Mr Olsen’s mid-1990s back injury and the consequential 1996 spinal surgery. Mr Carey, when considering apportionment, said:
“However, considering that this operation occurred some 25 years before the subject injury, and considering that there is nothing within the enclosures to indicate that he made other than a full recovery and was effectively normal following this surgery, I think it would be manifestly unfair to apportion, and hence have not done so.”[52]
[52]DCB 30
83Secondly, having considered the balance of the evidence, I accept that, subsequent to the 1996 surgery, Mr Olsen:
(a) Got back to work. Indeed, he worked at OC Connections from 2003 without significant problems prior to March 2021.
(b) Lived an unrestricted life, undertaking a range of activities which he enjoyed.
(c) Had very intermittent and mild lower back pain, which caused him no lasting problems of significance.
84I accept that it is the injury which Mr Olsen suffered in the course of his employment at OC Connections which impacts him in terms of:
(a) pain;
(b) work capacity;
(c) pain-related restrictions to his activities of daily living and generally.
Disentanglement of any consequences flowing from Mr Olsen’s stroke
85Mr Olsen suffered a stroke in 2022.
86It was recorded in the general practitioner records of 22 April 2022 that, while Mr Olsen may have some right weakness, he had mostly recovered. Indeed, Dr Bridge said there was “no obvious defecit (sic)”.[53]
[53]PCB 81
87Mr Olsen said, in his oral evidence, that while he had some right arm weakness, it did not impact upon him in his day-to-day activities.[54] I accept that to be so.
[54]T14, Lines (“L”) 28-29
Is Mr Olsen’s back injury a “serious injury”?
88Given my observations in respect to credit and my conclusions in respect to the medical evidence, this is purely and simply a range case.
89I am assisted in my analysis by the observations and processes set out by Maxwell P in Haden Engineering Pty Ltd v McKinnon.[55]
[55](2010) 31 VR 1
90Before moving to my analysis, it is helpful to paint a picture of Mr Olsen prior to his compensable injury. I accept Mr Olsen:
(a) Was undertaking unrestricted work at OC Connections. From time to time this involved lifting, carrying and manoeuvring boxes.
(b) Enjoyed his work and it gave him a sense of purpose.
(c) Engaged in a range of recreational and social activities. This included his involvement in the Camberwell Film Society, the Art Deco Society and the Men’s Shed, as well as attending a gym in St Kilda.
(d) Lived independently and was able to attend to all his activities of daily living and general needs without restriction.
91Put simply, notwithstanding Mr Olsen’s life challenges, he was living life to the full.
92Moving now to my analysis of the consequences of the subject injury.
93Going firstly to pain.
94I accept that, since March 2021, Mr Olsen has suffered ongoing lower back pain. I accept that this varies in intensity.
95I accept that, in the period immediately after his injury, Mr Olsen suffered right leg pain. However, I accept that this has been tempered by the Prednisolone medication prescribed by Mr Xenos. While there was some variation in the medical evidence in respect to the level of radicular symptoms, I accept Mr Olsen’s oral evidence that this is not currently a significant ongoing problem.
96The VWA said that the lack of ongoing general practitioner consultation, the lack of other treatment, and Mr Olsen not taking prescription medication, tended against a finding of serious injury. In the circumstances of this case, I do not find that conclusive. This must be balanced against the other evidence.
97Mr Olsen said, and I accept, that he has been told that there is not a great deal that can be done to assist in respect to his lower back problems. It is in that context that he:
(a) takes over-the-counter Panadol Osteo for pain relief;
(b) has his partner rub Dencorub on his back;
(c) endeavours to manage his pain by avoiding activities which place stress on his back and increase his levels of pain.
98The weight of the medical evidence is to the effect that Mr Olsen will continue to suffer ongoing back pain into the foreseeable future.
99In respect to the levels and nature of Mr Olsen’s ongoing pain, I gain comfort from the evidence of Ms Kouroulis and her observations.
100I accept Mr Olsen suffers chronic back pain and will continue to do so into the foreseeable future. He is likely to take this pain to his grave. This, in its own right, is a significant consequence.
101Moving now to sleep.
102There was differing evidence in respect to sleep. In his oral evidence, Mr Olsen said his sleep was sometimes disturbed by his pain and sometimes not.[56]
[56]T32, L27 – T33, L2
103Ms Kouroulis paints a picture of a somewhat greater impact on Mr Olsen’s sleep. I consider her observations to be helpful in my assessment.
104Moving to issues of mobility.
105Mr Olsen said that he sometimes used a stick. Mr Olsen said that no doctor had told him he should use a stick. It was his idea. Again, I am assisted by the evidence of Ms Kouroulis. She said that Mr Olsen used a stick because he at times encountered, from her observations, problems walking by reason of his back pain and pain-related restriction.
106I accept, at times, Mr Olsen’s back pain and pain-related restrictions are such that he feels the need to use a walking stick.
107Moving now to self-care.
108It is here that Ms Kouroulis’s evidence provided me with great assistance. While Ms Kouroulis and Mr Olsen have been in a relationship since 2009, they did not commence living together as a couple until mid-2021.
109Ms Kouroulis said that she moved in with Mr Olsen after he sustained his back injury. She said part of the reason she moved in was due to Mr Olsen’s back injury. Ms Kouroulis said he was not coping living by himself and needed somebody to help around the home.[57]
[57]PCB 11 at paragraph [2]
110I accept that Mr Olsen is now reliant, to a significant degree, on Ms Kouroulis for activities such as cooking, cleaning, laundry and shopping. This is not an exhaustive list. Prior to the incident he was living independently.
111Referring now to Mr Olsen’s recreational and social activities.
112Mr Olsen said he:
(a) was no longer able to attend and participate in the Camberwell Film Society monthly get togethers;
(b) was no longer able to attend and participate in the Art Deco Society as he had;
(c) was no longer able to go to the gym in St Kilda;
(d) while he tried, he could not cope going to the Men’s Shed as he had.
113I accept that each of these activities were important to Mr Olsen. I accept, by reason of the subject injury, Mr Olsen is no longer able to participate in these activities as he had. This, in its own right, has a significant impact on Mr Olsen.
114Moving now to the general enjoyment of life.
115Mr Olsen said he was not the person he was before the injury. He said that his pain and pain-related restriction affected his motivation and confidence and that he generally got less enjoyment out of life.
116Ms Kouroulis said that Mr Olsen was no longer the happy person he was. She said he was now quieter, short tempered, and, indeed, a completely changed person.
117I accept that Mr Olsen’s general enjoyment of life has been significantly impacted by his back injury.
118As a part of my analysis, I am conscious of the need to, not only focus on what Mr Olsen has lost, but also to analyse what it is that he has retained.[58]
[58]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
119The VWA, in the course of the application, sought to paint a picture of a man whose life had changed, not by reason of the subject injury, but by reason of other factors. For example:
(a) Ms Kouroulis moving in with him and then living as a couple;
(b) COVID-19;
(c) retirement.
120I do not accept this to be so. It is against the weight of the evidence.
121The VWA also said that Mr Olsen could still undertake a range of activities. For example:
(a) going out for a coffee;
(b) going out for a meal;
(c) watching movies at home;
(d) going to antique shows;
(e) that he continued to enjoy reading.
122Indeed, the VWA said that Mr Olsen’s “life’s looking pretty good”.[59]
[59]T62, L1
123I do not accept this to be so.
124I accept that Mr Olsen’s life has changed dramatically by reason of his compensable injury. He is not the man he was.
125Having observed Mr Olsen in the witness box and having considered all of the evidence, I accept that the consequences to him do constitute a serious injury pursuant to ss(a). Leave will be granted.
Orders
126I will hear the parties in respect to the consequential orders to be made in this matter.
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