Ors v Campbell's Australia Pty Ltd
[2010] VCC 1305
•31 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-00713
| UMIT ORS | Plaintiff |
| v | |
| CAMPBELL’S AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 10 August 2010 |
| DATE OF JUDGMENT: | 31 August 2010 |
| CASE MAY BE CITED AS: | Ors v Campbell’s Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1305 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to lumbar spine – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with | Nevin Lenne & Gross |
| Mr G Pierorazio | ||
| For the Defendant | Mr W R Middleton SC with | Wisewould Mahony |
| Ms J Forbes | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant in June 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 Subsection 38(h) provides that psychologically based consequences are to be wholly disregarded in paragraph (a) cases.
9 By subsection (38)(c) of the 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 may be fairly described [at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.
10 I 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.
11 I must determine whether the consequences of that injury and impairment are serious by comparing the plaintiff’s condition before and after the injury: see Petkovski v Galletti [1994] 1 VR 436 and Guppy v Victorian WorkCover Authority [2010] VSCA 164.
12 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd (2006) 14 VR 602 in reaching my conclusions.
13 The plaintiff relied upon two affidavits and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
14 The plaintiff is presently aged forty, having been born on 26 April 1970. He is married with two children, aged eight and twelve.
15 The plaintiff went to school to Year 12 at Glenroy Technical School.
16 The plaintiff worked in Queensland, carting buckets of tomatoes from August 1994 for about a year. The plaintiff then moved to Shepparton and did a TAFE joinery/carpentry/builder-type course through Centrelink. He also occasionally worked in a few orchards doing pruning, and was in receipt of unemployment benefits at that time.
17 The plaintiff commenced work with the defendant as a factory industrial cleaner at Campbell’s Soup in October 1995, working afternoon shift.
Previous Back Complaints
18 In cross examination the plaintiff said that he had hurt his lower back working in Queensland, carting tomatoes. He thought his back was x-rayed. For about six months he took medication and had both chiropractic and physiotherapy treatment and saw a doctor. He was probably off work for three months and received payments during that time for a lower back injury.
19 The plaintiff recovered from that injury and managed to work for twelve years until suffering further injury in 1997 when he came to the rescue of a fellow worker when he grabbed a can racer that was about to fall on him.
20 The plaintiff would have taken Panadol at that time and perhaps had treatment from the company doctor.
21 Since that incident, the plaintiff had intermittent back pain and at times he had chiropractic treatment.
22 The plaintiff suffered a further back injury whilst working on the meat line using the palletiser performing a sixty to sixty five kilogram lift. He believed he would have had time off work after that injury.
23 The plaintiff confirmed the contents of the Register of Injuries. It set out an injury to the back on 17 February 1997 cleaning the meat guide for the machine, lifting the palletiser.
24 The next entry on 2 June 1997 read – “back pain lifting drain covers and the palletiser in the meat room”.
25 “Pain in the back” was noted on 6 April 2001 but there were no further details.
Work on the chip line.
26 A month prior to January 2007, the plaintiff was advised that he would be placed on the chip line on dayshift for six months. Prior to that time, the plaintiff had been stood down at the workplace due to pending investigations following a verbal altercation with another worker.
27 In cross-examination, the plaintiff confirmed the history taken by Dr Bloom that he did not like dayshift and he thought that he was being victimised by being placed on the chip line because he was a shop steward. Further, the plaintiff was paid less on dayshift and the shift “did not fit in with his life” as he had to collect his children from school.
28 On 22 January 2007, the plaintiff returned to work. He reported to his supervisor, Andrew Shanahan, prior to commencing his duties. The plaintiff advised Mr Shanahan that he did not feel he could pack the chips and that “all the bosses knew [he] had a pre-existing back injury”. Mr Shanahan told him to give it a go anyway.
29 The chip line was quite low for the plaintiff. He is two metres’ tall and the line was at knee height. Work on the chip line was a job usually done by women. There was a lot of bending to the line and twisting movements that aggravated the plaintiff’s back.
30 The plaintiff experienced a burning sensation in his lower back within about half an hour of commencing these duties. He informed Mr Shanahan after about an hour that his back was hurting and he was told by Mr Shanahan to try and keep going.
31 The plaintiff was pretty sore by lunchtime but he managed to complete his shift. When he woke the next morning his back was very bad, he had severe pain and was unable to walk.
32 The plaintiff attended work on 23 January 2007. Whilst working on a faster line, the plaintiff half dropped onto the floor in pain and advised Mr Shanahan his back was very sore and that he could not continue in this job. Mr Shanahan then helped the plaintiff to first aid and contacted Dr Ball, a company doctor.
33 The plaintiff confirmed he told Mr Shanahan that he had tried all the chiropractors in Shepparton and they were hopeless. The plaintiff had probably seen Mr Sinclair and Graham Thompson in relation to earlier injuries with the defendant.
34 The injury was recorded in the Register of Injuries on 23 January 2007 where it was noted - lower back pain – “The employee was packing when he started to get spasms in his back.”
35 Over the following days, the plaintiff underwent chiropractic treatment. He saw Dr Tisdall, who sent him to Mr Barrett, orthopaedic surgeon, whom the plaintiff saw on 24 May 2007. Mr Barrett then arranged for an MRI scan which was finally carried out in June 2007.
36 The plaintiff returned to work in the potato preparation area in February 2007. In his statement of March 2007, he said he was coping with those tasks but he felt that there were moves being undertaken by the defendant to make his employment difficult and hard to maintain.
37 The plaintiff time and time again asked Mr Shanahan how he was performing and he was told “very good, excellent” so the plaintiff knew he was going back to afternoon shift.
38 Prior to the said date the plaintiff’s back was “ok”. He could do heavy work. The incident on the said date was “the straw that broke the camel’s back”. The plaintiff did not regard himself as having a long term, severe low back injury prior to June 2007.
39 The plaintiff thought he was having treatment from Dr Tisdall between January and June 2007. Dr Tisdall prescribed a back brace for him but the plaintiff could not remember whether he did so before or after the said date.
The Incident
40 The plaintiff suffered injury on the said date whilst lifting a tub full of small potatoes and off-cuts (“the incident”).
41 This particular job involved the plaintiff standing on a line with a conveyor belt bringing potatoes to him. He had to take the bad potatoes out of the conveyor belt line and put them into a big tub which had a capacity of 500 kilograms. There was a tub underneath the conveyor belt which had a 35 to 40 kilogram capacity which was for waste that collected stones and off-cuts. The plaintiff was then required to tip the waste tub into a larger bin when the tub became full.
42 In June 2007, there was a bad batch of small potatoes. The plaintiff had to throw out five to six bins of bad potatoes, whereas normally he would throw out two or three. Also, he had to repeatedly empty the waste tub. On a normal day the plaintiff would only have to empty four to five tubs over four hours. On this particular day he was required to empty the tubs every five or ten minutes.
43 The plaintiff told his boss that it was “hell out there” and that the spuds were shocking and his back was aching.
44 In cross-examination, the plaintiff denied, as deposed by Mr Schubert, that he was able to self manage the process on the line or that he could stop the conveyor belt at any time to empty a tub of defective potatoes. The line could not be stopped at any time; it was continuously going. If there was a demand for potatoes to go into the fryer, the plaintiff could not stop the belt at any time except for a safety issue.
45 The plaintiff had no choice but to lift the waste bin when it was completely full.
46 The plaintiff was not sure of the date in June when the incident occurred, explaining that he was “not very good with dates”. He initially deposed that he suffered injury on 12 June and that he had made a mistake when he described it as 5 June 2007, as was set out on the Register of Injuries. His statement referred to 12 June 2007 and his second affidavit mentioned 11 June 2007 – all the plaintiff knew was that he had reported it on the day it happened.
47 The plaintiff explained the confusion about the dates may have been because there was another bad batch of potatoes prior to the main bad batch and he believed he had actually rung the co-ordinator, Peter Pearce, and explained to him the problem, and the defendant sent someone out to help the plaintiff on that earlier occasion.
48 In re-examination, the plaintiff elaborated on the work system. He described the waste tubs had to be taken from under the conveyor belt. To do this he had to squat, lean forward and bend down under the belt to get the bin. He then had to lift the tub and carry it to a larger bin ten metres away into which he emptied the waste. If the batches of potatoes were bad there was a lot more to sort. There would be more waste and that would make the waste tub heavier.
49 Straight after the incident, the plaintiff saw Dr Tisdall. The plaintiff thought he must have seen him before 4 July 2007.
50 In cross-examination, the plaintiff said he thought he had probably seen Mr Barrett about two years ago, in April 2008, when he asked Mr Barrett to write a letter for him because he and his wife might be travelling to Turkey.
51 The MRI scan organised by Mr Barrett in June 2007 was the last investigation carried out in relation to the plaintiff’s back.
Return to Work
52 In early 2008, the plaintiff managed to return to work with the defendant on modified duties with the help of his doctor. The plaintiff deposed that, regretfully, his efforts to return to work were resisted by the defendant, who flatly refused to provide suitable duties.
53 On his return to work in early 2008, the plaintiff started off doing an hour a day, then two hours a day. The defendant continued to provide return to work plans exceeding the limitations on his capacity as certified by Dr Tisdall.
54 The plaintiff deposed, because he was a union delegate, he had no hesitation in stating on his oath that he was targeted by the defendant, who made life difficult for him. He believed he was deliberately given strenuous duties because of his history as a union shop steward and from the defendant’s perspective, it was “payback time”.
55 It was made clear to the plaintiff by Rod Schubert that if he did not return to full duties he would be sacked. The plaintiff made it plain to Mr Schubert that he wanted to work and he was not a bludger, but that he also made it clear that he had permanent damage to his back and he was in constant pain.
56 The plaintiff did not work in mid 2008 because he was told by the defendant that there was no suitable employment for him.
57 In mid 2008, it became apparent to the plaintiff that he was going to be sacked. At that time, due to financial pressure of not being able to work and receiving compensation, the plaintiff was forced to sell both of his investment properties, his $60,000 car and he put his own house on the market.
58 The plaintiff deposed, as it happened, he received a letter from the defendant dated 25 September 2008 and he immediately knew the defendant was commencing the termination process.
59 In late 2008, the plaintiff’s wife received a call from her family in Turkey to advise her that her father was very sick and, accordingly, the plaintiff and his wife went overseas very suddenly. The plaintiff explained these circumstances to his doctor and to the defendant’s WorkCover agent.
60 When the plaintiff flew to Turkey it was absolute agony. He spent a lot of time walking up and down the aisles in the plane because he could not sit down for long “in cattle class” because of his back pain. The plaintiff and his wife were in Turkey for six weeks in about October 2008. During that time the plaintiff had medical treatment for his back and his haemorrhoids. The plaintiff requested Mr Barrett write a letter saying he was unfit for military service on his return to Turkey.
61 The defendant wrote to the plaintiff in February 2009 advising him that he was required to seek authorisation for taking leave. Further, the plaintiff was advised in that letter that the defendant was proposing to terminate his employment.
Pain and Disability
62 In August 2009, the plaintiff deposed there was not one day he was pain free. He had back pain and pain in the left loin and left buttock. The pain ran down his thigh and left upper calf. His pain was aggravated by sitting, standing, bending and twisting at the trunk. Little things such as sneezing and coughing made his pain worse.
63 The plaintiff deposed he developed haemorrhoids because he became constipated by the pain-relief medication he was taking.
64 At the present time, the plaintiff continues to have substantial pain and discomfort. The pain is constant and varies in severity, depending on activity. If he walks, stands, twists, stoops and bends the pain is a lot worse. If he lifts anything of a reasonable weight his pain increases. It is painful to sneeze and cough. The plaintiff has pain in both legs on occasions.
65 The plaintiff just cannot sleep because of pain and he is always turning and tossing. Sometimes he sleeps in the spare room on the floor on a mattress and if that does not help, he puts on a back brace which helps. The plaintiff’s sex life is affected because of his back pain.
66 As a result of his back condition, the plaintiff has had a lot of difficulty undertaking domestic duties. It is very difficult to drive long distances and he often has had to rely upon family members to drive him. In cross-examination, however, the plaintiff confirmed he had driven from Melbourne to Wangaratta for the hearing.
67 Had it not been for his back injury and his problems sitting on the plane, the plaintiff would have travelled to Turkey more frequently as both he and his wife have family there.
68 The plaintiff’s injuries have had a very bad impact upon his social, domestic, recreational, personal and working life. He has difficulty undertaking recreational activities such as fishing, socialising, driving and gardening. On the two occasions he mowed the lawn, he had to get help. He does not have a garden as such. The plaintiff tries at times to do home maintenance and sometimes he helps with domestic duties.
69 The plaintiff has two children, aged eight and twelve. The plaintiff is restricted in “mucking around” and playing ball games with his sons. He cannot do normal things with his boys. He can take his son to soccer training but his back becomes painful just standing there watching his son.
70 The plaintiff has had a love of music since he was about twelve. Prior to June 2007, he “had to touch and polish his guitar every day.” He was playing his guitar nearly every day. Music is just part of him; he gets an enormous amount of satisfaction from being able to play his music.
71 Prior to the incident, the plaintiff played guitar for hours and would sometimes get up in the middle of the night when he wanted to learn a new piece of music and play in his music room, sometimes until daylight.
72 The plaintiff is right handed and has an injury to his left thumb for which he wore a prosthesis until 2008. The plaintiff has learned to play the guitar a different way to compensate for this problem.
73 The plaintiff’s back injury has significantly affected his ability to play the guitar and reduced his enjoyment of his favourite pastime. The plaintiff explained a certain posture was required to play the guitar and there were quick movements required – “playing whilst sitting down was like playing a piano standing up.”
74 The plaintiff still plays guitar but he cannot play the way he wants. He can only play for five to twenty minutes. He just cannot enjoy it anymore. He bought a new guitar which he “thought would be good but [he] cannot play properly anymore, it has just gone”.
Current Work Situation
75 In August 2009, the plaintiff deposed that any work he would be able to undertake would be light. He had approached Work Options, the rehabilitation provider for the defendant’s authorised WorkCover agent in order to get trained up to do something such as security work, retail work or computer work. His computer skills were very poor and he noted that he would have to have training in that regard.
76 In his recent affidavit sworn 28 July 2010, the plaintiff confirmed he did a security course for about two or three days in 2008 but had problems and difficulties sitting down studying. He was also expected to do some physical training which he could not participate in because of his back. As a result, he was referred to do a computer course on the suggestion of his general practitioner.
77 Between February 2009 and August 2009, the plaintiff was in receipt of unemployment benefits. In order to enhance his employment opportunities, he moved to Melbourne in about February 2009.
78 In August 2009, the plaintiff obtained a job as machine operator on a full time basis at Boral where his brother is the boss. At work, the plaintiff can stand and sit as he wishes and he does not have to undertake any heavy lifting, stooping, bending or twisting of his trunk. The plaintiff works on a very big line and he can actually walk around it as part of his job so he is very mobile. It is an easy job.
79 When Dr Tisdall heard the plaintiff had obtained this job he advised him to be very careful. The plaintiff does not know why he told Mr Love he was not working when he saw him earlier in 2010.
80 The plaintiff’s normal hours of work are 2.30 pm to 10.30 pm on afternoon shift. He is a permanent full time employee. He works Monday to Friday and a few Saturdays for six to eight hours but never on Sunday. Consistently he works an hour or two more overtime. He is paid $21 an hour and with overtime he is paid initially time and a half and then double time. The plaintiff has no concerns about the security of his job.
81 It is an hour’s drive from the plaintiff’s Craigieburn house to Boral at Springvale.
82 In re-examination, the plaintiff confirmed he did not have any problems doing his new job on the line
Current Medication
83 The plaintiff currently takes Panadol and Nurofen, sometimes every day, depending on how he feels, because the pain varies. He can go for weeks without medication but probably two or three days at a maximum. His Panadol intake varies from two to six tablets a day.
84 The plaintiff last took Panadeine Forte about two weeks prior to the hearing, when he took four tablets. He last received a prescription for this drug from a clinic at Craigieburn two months ago, which was the last time he saw a doctor.
85 In re-examination, the plaintiff explained that he required medication because he had constant pain. On some days the back pain was worse because he had sneezed or he “had not braced himself.”
86 The plaintiff has never had any physiotherapy and has not had recent chiropractic treatment. He has not had any other treatment since he started at Boral except painkilling medication.
87 The plaintiff probably last saw Dr Tisdall about six months ago. The plaintiff has consulted two doctors at the Craigieburn Super Clinic in relation to his back.
88 The plaintiff explained he did not use prescription medication because he often became constipated and he had haemorrhoids, for which he had seen Dr Tisdall, who had referred him to a specialist who had suggested he go on a lower dose, like Panadol or Nurofen.
89 The plaintiff was advised by that specialist that he needed to have a colonoscopy but he has not had the procedure because he went to Turkey at the time it was booked in. The haemorrhoid condition is manageable.
90 The plaintiff explained he took Panadeine Forte from time to time, despite medical advice that it was causing haemorrhoids, because of his back pain. “It was just some days he needed to sleep properly for a change or to do certain things and he needed to take it because of the pain factor.”
91 The plaintiff has three braces: a softer one; a denim one, and a third, funded by CGU Workers Compensation Insurance, which goes from the waist all the way up to his shoulders and has a full back support. He probably wears one of these braces once or twice a week, sometimes for even a whole week just to sleep. He wears a brace to work a couple of times a week if the work is going to be extra late. He always has a brace in his locker. The brace helps him to be more mobile at work.
The Plaintiff’s Medical Evidence
92 Dr Tisdall in Kyabram provided three brief reports.
93 Dr Tisdall advised the defendant on 4 July 2007 that the plaintiff had a severe back injury and had been diagnosed with a ruptured lumbar L4 disc. He advised that it was a permanent injury, and meant that the plaintiff would never be able to do heavy manual work again.
94 Dr Tisdall noted the plaintiff was keen to return to work “tomorrow”. Dr Tisdall advised that he would be grateful if a return to work plan excluding prolonged standing, sitting, bending and lifting could be organised.
95 By letter dated 15 August 2007, Dr Tisdall advised the defendant that he had seen the plaintiff that day regarding a certificate from 27 July 2007 to 24 August 2007. Dr Tisdall thought that was a continuing certificate, as he saw the plaintiff on 4, 5 and 6 July 2007, and the plaintiff was not seen until 6 August 2007, because he was unable to get another appointment.
96 In a “to whom it may concern” letter written by Dr Tisdall on 30 April 2008, he advised that the plaintiff had been a patient of his for at least ten years, and he knew his family very well.
97 Dr Tisdall noted that the plaintiff originally injured his back at least ten years previously. The plaintiff had been heavily investigated and treated by a specialist back surgeon, Mr Barrett. The plaintiff had had an MRI scan of his lumbosacral spine on 20 June 2007 which confirmed he had an L4-5 rupture of the lumbar disc.
98 Dr Tisdall advised that this was a very serious injury. He thought the plaintiff was severely limited, with pain on prolonged standing, sitting or bending, and had almost been forced to stop working altogether doing any manual work.
99 Mr Barrett wrote a “to whom it may concern” letter on 12 March 2008. In that letter, he certified he had examined the plaintiff and studied radiological investigations of the plaintiff’s lumbar spine, initially on 24 May 2007, and more recently on 11 March 2008, at Dr Tisdall’s request.
100 Mr Barrett advised that following his clinical, orthopaedic and radiological examination of the plaintiff, it was clear that the plaintiff had sustained a painful rupture involving the L4-5 lumbar intervertebral disc dating back to a work injury approximately ten years ago, and a recurrence on 23 January 2007 whilst working on a chip packaging line.
101 Mr Barrett advised that while he considered the plaintiff was able to manage lighter types of work that did not involve any prolonged stooping, heavy lifting, or heavy pushing activities, he was not fit to return to his full and previous work that included a considerable number of those activities.
Investigations
102 Dr Tisdall organised an x-ray and CT scan of the plaintiff’s lumbar spine on 22 March 2007. Both investigations were within normal limits.
103 Mr Barrett arranged an MRI scan of the plaintiff’s lumbosacral spine on 20 June 2007. It was concluded there were relatively mild degenerative changes within the L4-5 disc (in the setting of a transitional L5 vertebra) with a posterior annular fissure and small broad-based disc bulge. There was no significant central canal stenosis or exiting nerve-root impingement seen.
The Plaintiff’s Medico-Legal Evidence
104 Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff at the request of CGU Workers Compensation Insurance, initially on 6 February 2007, and he re-examined him on 23 July 2007.
105 The plaintiff told Mr Kudelka he had had several episodes of mechanical back strain, particularly on the right side. He could not remember the exact date, but he was struck on the right hip by a metal rail and was off work for a short time. He also worked in areas which required lifting pallets weighing 70 kilograms, and there were subsequent incidents which he reported to the defendant. He had been referred by the defendant’s doctor, Dr David Ball, to a chiropractor. He had also attended Dr Tisdall, who prescribed anti- inflammatory medication, which the plaintiff used for a short time.
106 Mr Kudelka noted that the plaintiff worked full time for thirty eight hours a week but was transferred from cleaning to packing chips on a moving conveyor belt. That task involved twisting and turning, and was particularly unsuitable employment for the plaintiff, as he was a tall man. The belt was at knee height, and the plaintiff rapidly developed low back pain and cramps again. The plaintiff advised Mr Kudelka he had told the defendant he could not work consistently and repetitively at low heights.
107 On the most recent examination, there was tenderness in the lower lumbar area with restricted movement of about half the normal range. Flexion was to 45 degrees. Extension, lateral flexion and rotation were in the 15 to 20 degree range. There was no neurovascular abnormality in the lower limbs, although the plaintiff said his legs ached at times, but not constantly.
108 In the absence of any investigations, Mr Kudelka’s initial diagnosis was that of mechanical lumbar strain associated possibly with degenerative changes in the lower back.
109 Mr Kudelka believed the inappropriate ergonomic workplace situation, packing chips on a conveyor belt, was the significant contributing factor to the plaintiff’s condition, which appeared to be an aggravation of pre-existing much milder episodes of back strain. At that stage, Mr Kudelka thought the plaintiff’s condition had not resolved. He considered the plaintiff had a current work capacity but must be transferred to an area of industrial cleaning, which Mr Kudelka thought he would be able to do at his pre-injury level.
110 Mr Kudelka recommended ergonomic assessment of the worksite. The plaintiff told him he had not been given light duties and was in fact put onto a moving assembly line into which potatoes were dropped for sorting. His job was to pick out defective ones and throw them in a tub which he was required to empty three times a day.
111 The plaintiff told Mr Kudelka that on 5 June 2007, a very bad batch of potatoes came in, and the tubs were filled about every ten minutes, and weighed 60 to 70 kilograms, so he was lifting them constantly. This work aggravated his back pain significantly, and he took the following day off. On returning to work on 12 June 2007, the plaintiff was put back on this work, and his back pain became severe. He saw Dr Tisdall and was again put off work.
112 On 5 July 2007, the plaintiff was cleared for light duties, but none appropriate were provided for him.
113 On the re-examination, Mr Kudelka had available to him the MRI of the lumbosacral spine dated 20 June 2007.
114 Mr Kudelka diagnosed mechanical injury to the L4-5 lumbar disc, and he suggested a management plan of analgesics and anti-inflammatory medication, physiotherapy treatment and a restricted work program avoiding bending and lifting.
115 Mr Kudelka believed the plaintiff had the capacity to return to alternative duties not involving strain on his back, and he thought the contributing factors to the plaintiff’s condition had been the lifting incidents, which were an aggravation of pre-existing degenerative changes at L4-5.
116 He considered the plaintiff was fit for full time work provided it did not involve bending, stooping and lifting of weights in excess of 10 kilograms.
117 Mr Kudelka noted this new claim was an aggravation of the back injury of 23 January 2007, noting the return to work plan at that time was unsuitable.
118 Mr Jonathan Hooper, orthopaedic surgeon, examined the plaintiff on behalf of CGU Workers Compensation Insurance on 17 May 2007.
119 The plaintiff told Mr Hooper that about two years ago he had an incident where he prevented his supervisor getting caught in a machine, and he hurt his back. The plaintiff was off work for a short period of time then, but he had had recurring back discomfort ever since.
120 The plaintiff told Mr Hooper of a recurrence of his back trouble in January 2007 when working at a machine at about knee height, which involved him twisting, turning and kneeling.
121 The plaintiff told Mr Hooper he had been treated by a soft tissue therapist and had been seen by his local doctor.
122 On examination with Mr Hooper, the plaintiff continued to complain of recurring back discomfort and occasional leg pain. The plaintiff’s spinal movements were not full for his age. Forward flexion was only 60 degrees, extension 20 degrees, and lateral flexion 20 degrees. On the couch, straight leg raising was 60 degrees bilaterally and there were no neurological signs present.
123 Mr Hooper noted that the plaintiff, a tall fit man, strained his back approximately two years ago, and had some intermittent discomfort thereafter. He had never taken more than a day or so off work, but his work of leaning forward and bending tended to aggravate his condition.
124 Mr Hooper noted the plaintiff was well motivated, and thought his prognosis was good, though he would continue to complain of low back discomfort with inappropriate activities, and his work could be tailored to his disability. He thought the plaintiff might benefit from an active exercise program. He considered that the plaintiff should continue doing light work and not partake in activities that aggravated his back, such as forward bending.
125 In Mr Hooper’s view, there were no non work-related factors involved in the plaintiff’s situation.
126 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 8 September 2008.
127 The plaintiff indicated he thought he first had problems with his back ten years ago in an incident involving a can racer. The plaintiff told Mr O’Brien he was put off work and sent for some chiropractic treatment, and the pain resolved. The plaintiff could not recall how long he was off work, but he did return to normal duties.
128 Following that original injury, the plaintiff experienced some three or four more acute episodes of low back pain. The first few occasions were treated by a chiropractor, and subsequently with soft tissue massage. Each time the plaintiff was off work for about a week. The pain responded to conservative treatment until the last episode, which occurred three years ago.
129 The plaintiff thought that in early 2007 his duties were changed, and he was put on the chip packaging line, where he developed a burning sensation in his lower back. Having had some soft tissue therapy, his pain responded, and he was able to return to work after about five days, although he continued to be aware of persistent back pain.
130 The plaintiff told Mr O’Brien that in about June 2007 he was working sorting potatoes, a job which caused a significant aggravation of back pain. On the following day the plaintiff stated the pain was so severe he was virtually unable to move. He saw his local general practitioner and underwent some investigations and was referred to Mr Barrett, who advised conservative treatment. The plaintiff told Mr O’Brien of a return to work plan earlier in 2008 on which he lasted for ten weeks.
131 The plaintiff complained to Mr O’Brien that he experienced constant back pain, localised at the lumbosacral area, with pain in the left loin, in addition to left buttock pain and pain radiating down the lateral side of the thigh to the left upper calf. He reported the severity of that pain at six out of ten.
132 The plaintiff told Mr O’Brien that at present he was not having any physical treatment. He continued to use Panadeine Forte, about four to five a day, although it did not really help his pain. He frequently wore a lumbosacral brace, which he found beneficial.
133 On examination, the thoracolumbar spine was straight, there was 30 degrees of lumbar flexion and 20 degrees of extension. Lateral flexion was to 20 degrees. The plaintiff described pain limiting all movements, particularly lateral flexion to the left, and he described tenderness into the lumbosacral junction and to the left buttock.
134 Passive straight leg raising was 40 degrees bilaterally, limited by back pain. The plaintiff also described back pain on active straight leg raising. Power, sensation and reflexes in both lower limbs were normal.
135 Mr O’Brien noted that the June 2007 MRI did in fact demonstrate multilevel disc desiccation with loss of the normal disc signal, particularly noted at L4-5 where there was a small annular fissure. It showed mild degenerative change but little change which appeared to be of pathological significance.
136 Mr O’Brien noted current physical signs were subjective and confined to limited lumbar movement, which certainly appeared markedly restricted on formal examination and somewhat variable in the overall course of the examination. Mr O’Brien noted physical findings in the reports of Mr Hooper and Dr Bloom, since when there seemed to have been a definite lessening in the range of lumbar spine movement.
137 Mr O’Brien therefore concluded the plaintiff presented with non specific back pain, and he considered that there was some evidence that the problem was influenced by non-organic factors.
138 In Mr O’Brien’s view, indeed the history did indicate that employment was a significant contributing factor.
139 Mr O’Brien thought the clinical condition was now stable. He noted the plaintiff certainly reported a substantial alteration in his symptoms over the past year. Mr O’Brien noted that the treatment would be regarded as minimal, and therefore he thought it appropriate for the plaintiff to undergo a multidiscipline pain management program.
140 Mr O’Brien thought that certainly the history and current signs suggested the prognosis was poor, and there was a likelihood that the plaintiff would continue to describe chronic low back and leg pain.
141 Mr O’Brien noted that the plaintiff certainly now presented describing significant disability, resulting in marked restriction of his overall activities. He thought the plaintiff was certainly not fit for his pre-injury employment, and on the basis of the failed return to work on a very limited basis earlier in the year, Mr O’Brien concluded that the plaintiff was totally incapacitated and would not return to work for the foreseeable future. He noted that if there was any improvement after a pain management program, some attempt could be made to reintroduce the plaintiff to work.
142 Mr Stephen Leitl, orthopaedic surgeon, examined the plaintiff on behalf of CGU Workers Compensation Insurance on 12 January 2009.
143 The plaintiff told Mr Leitl of first hurting his back ten years ago. The plaintiff then recalled having further intermittent lower back pain following heavy lifting at work, including lifting of palletisers which weighed about 50 or 60 kilograms. He was treated by a chiropractor over the years, but remained at work.
144 In early 2007, the plaintiff was shifted to dayshift, put on the chip line, and as a result of constant forward stooping, he suffered the onset of burning low back pain. He had a few days off, then returned ostensibly to light duties. He was then transferred to a different line, sorting potatoes.
145 The plaintiff told Mr Leitl that on two days the potatoes were so defective that his duties considerably increased, requiring increased manual handling, bending and stooping.
146 The plaintiff told Mr Leitl that over the next several months his back pain slowly improved, but never settled completely.
147 The plaintiff returned to work in January 2008 when he was put on various lines for about two months, following which no further work was made available to him. It was noted that the plaintiff was assessed by Work Options in June 2007 but no suitable employment was found for him.
148 As of January 2009, the plaintiff told Mr Leitl he had constant low back pain, made worse with prolonged postures. He indicated the left lower back pain with radiation into the left buttock as the site of pain. He had had no physiotherapy since the onset of his back condition in 2007. He mainly used Duragesic, 25-milligram patches, and Ducene, 5 milligrams a day. He was also on an anti-depressant.
149 Mr Leitl noted that, on physical examination, the plaintiff constantly changed position, alternating between sitting and standing, suggesting he was in pain.
150 Examination of the plaintiff’s lumbar spine revealed a normal lordosis. There was mild tenderness in the left sacroiliac and left buttock areas. There was reduced range of movement, with flexion only half the expected range. Extension and right and left bending were maintained. Examination of the lower limbs showed no evidence of radiculopathy.
151 Having seen the plain x-ray of 22 March, the CT scan of the lumbar spine of 22 March, and the MRI of 20 June 2007, Mr Leitl diagnosed aggravation of L4-5 disc degeneration.
152 Recalling the plaintiff’s history, Mr Leitl noted the worsening of his back pain in June 2007 would be considered to be a significant and relevant factor in the worsening of his lower back condition, partly responsible for his current injury status. The findings on examination, combined with the MRI findings of mild disc degeneration at L4-5, suggested to Mr Leitl that, at least in part, there was a physical basis for the plaintiff’s complaints of lower back pain, and his symptoms were, in Mr Leitl’s view, consistent with aggravation of a lumbar disc degenerative process.
153 Mr Leitl noted the contributing factor to the plaintiff’s current condition was the workplace aggravation in June 2007 with a superadded contribution from psychosocial factors associated with a change of work shift and increasing work as a union representative. The work component continued to materially contribute to the plaintiff’s incapacity for his pre-injury work and need for treatment.
154 Mr Leitl considered that the plaintiff was not fit for pre-injury duties. He noted, given the mild nature of changes shown on MRI, and with an appropriate rehabilitation program, he anticipated the plaintiff would be able to return to work some time in the future.
155 Mr Leitl thought that the plaintiff required alternative duties where he avoided heavy back strains and work that involved repeated bending, lifting, and stooping.
156 With regard to the vocational assessment report of Work Options dated 26 May 2008, Mr Leitl thought that the plaintiff would have the capacity to undertake the employment options identified, namely administration assistant, public transport services officer, sales assistant (sedentary), real estate property manager and travel consultant. He considered the plaintiff could undertake job seeking and retraining, including a computer course, any time from now on.
157 The plaintiff was examined by Dr Baker on behalf of CGU Workers Compensation Insurance on 30 June 2009.
158 The plaintiff told Dr Baker he had continuing problems with his lower back and he was never pain free. The plaintiff told him of an incident on 11 June 2007 on the potato line and also that there had been a couple of incidents at work where he had suffered previous back pain, including lifting a palletiser.
159 On examination, Dr Baker noted that there was some abnormal illness behaviour with a positive response to axial loading. On palpation there was tenderness over the lumbar spine. The plaintiff was able to flex his spine to 40 degrees from the vertical, and other movements were similarly restricted.
160 Inspection of the lower limbs did not indicate any evidence of muscle wasting. Straight leg raising bilaterally was to 40 degrees. There was normal power and tone in both lower limbs and on sensory examination, no abnormality was detected.
161 Dr Baker noted, after formal examination had been completed, the plaintiff attempted to sit upright on the couch but he was unable to sit with his back vertical.
162 Dr Baker had available to him the June 2007 MRI.
163 Dr Baker concluded the plaintiff gave a history of injuring his back at work and he had minor changes in the lower lumber region with lack of evidence of radiculopathy to either leg. In Dr Baker’s view, there was evidence of a non- physical component to the plaintiff’s presentation.
164 Dr Baker considered the plaintiff was suffering with lower back pain due to discal changes but there also appeared to be some pain amplification with a positive response to axial loading. Dr Baker noted the plaintiff had a negative attitude in regard to returning to work with the defendant.
165 Dr Baker considered the plaintiff’s condition arose out of the course of employment but noted that there were non-physical factors impacting on his presentation. Dr Baker considered the plaintiff suffered an aggravation of degenerative disc changes in the lower back.
166 Dr Baker considered employment was a significant contributing factor and that the plaintiff’s current physical condition was work related.
167 In Dr Baker’s view, the plaintiff was not fit for pre-injury employment and was fit for suitable employment where he was not required to repeatedly bend or lift weights of more than 10 kilograms and that he should have the ability to move about.
168 Dr Baker considered the plaintiff would continue to have some mild symptoms in his lower back in the foreseeable future. The plaintiff would be described as having a vulnerable back and therefore should not return to undertaking heavy or strenuous work.
169 Mr Brearley examined the plaintiff on 30 June 2010.
170 The plaintiff told him of an initial back injury ten to twelve years ago, and that he had suffered further injuries to his back thereafter. The plaintiff told Mr Brearley of the can racer machine incident. He also told Mr Brearley about being put on the packaging line in early 2007, a job which was unsuitable because of his height, and in fact he experienced severe pain on the day he worked on the line and he then had to go off work.
171 On return to work, the plaintiff was put on the potato line, where, on 11 June 2007, he had a day even heavier than most performing his duties.
172 The jobs that were subsequently given to the plaintiff following conciliation were unsuitable for him and he eventually stopped working completely with the defendant in mid to late 2008.
173 The plaintiff told Mr Brearley of his move to Melbourne, his new job with Boral, and the fact that he could do that job satisfactorily, as he could sit and stand as he wished, and there was no heavy lifting.
174 The plaintiff complained to Mr Brearley of constant pain of variable severity in the lower back, made worse by activity, and that coughing and sneezing could bring on an attack of severe pain.
175 Mr Brearley noted the plaintiff had no real problems with activities of daily living. He noted the plaintiff was a music lover, and no longer played guitar as well as he could. He could not play the drums. He could not play with his boys normally, such as kicking a football and running, and he now rarely went fishing.
176 On examination, there was loss of normal lumbar lordotic curve. There was quite marked limitation of back movements. Flexion was limited to 60 degrees, and extension to zero degrees. Lateral flexion to the right and left was limited to 10 degrees, and rotation to both sides was 10 degrees only. Straight leg raising was 60 degrees on both sides. All reflexes were normal, and sensation was normal.
177 Mr Brearley viewed all investigations, and diagnosed mechanical lumbar back pain secondary to internal disc disruption at the L4-5 disc. He noted the MRI had shown a posterior fissure and bulging of the disc as a result of the internal disruption.
178 In Mr Brearley’s view, the disc damage had occurred as a result of the very heavy work the plaintiff did with the defendant over ten years or more, which had placed a considerable strain on the lumbar spine of a tall man, and as a result there had been serious damage to the L4-5 disc with consequent low back pain of variable severity, at times severe.
179 Because of that injury, in Mr Brearley’s view, the plaintiff was limited with regard to his recreational activities, and he was quite unable to carry out his pre-injury employment with the defendant, nor was he able to do any unrestricted manual labour, and it was essential for him to avoid heavy manual labour in the future.
180 Mr Brearley thought that the plaintiff’s present job was quite suitable for him. He noted the plaintiff needed to be taught a low impact exercise and fitness program, and that there was no need for surgery.
181 Mr Brearley concluded that it was likely that the plaintiff’s condition would continue as it was in the long term. The plaintiff would continue to have pain and suffering from his low back injury, which Mr Brearley thought was not likely to worsen, provided the plaintiff was careful and selective with regard to work activities.
182 Mr Bruce Love, orthopaedic surgeon, examined the plaintiff on behalf of the defendant’s solicitors on 11 February 2010.
183 The plaintiff told him that about two years ago, when sorting potatoes, he injured his back emptying 500-kilogram bins when he felt a burning sensation in his lower back.
184 The plaintiff told Mr Love that eight years earlier he had had intermittent backache. The plaintiff also told him that he had not worked for some two years, and that he had attempted to return to work intermittently, but had been unable to sustain this.
185 On examination, there was 45 degrees of flexion, 25 degrees of lateral flexion and 15 degrees of extension. Straight leg raising was marginally restricted to about 60 degrees on each side, but there were no abnormal neurological signs.
186 Mr Love observed the 2007 MRI. He thought that the plaintiff had degenerative disc disease of the lumbar spine. He considered the degenerative disease was not of the most severe type, but there was evidence of it on the MRI examination, and he noted the physical findings and history were consistent with that diagnosis.
187 Mr Love commented, as it was not possible to absolutely prove that the plaintiff’s pathology was arising from lumbar intervertebral disc, an alternative diagnosis of a generalised ligamentous soft tissue injury of the lumbar spine could be provided.
188 Mr Love did not believe there were any other factors which might be contributing to the plaintiff’s present condition. He did not detect any functional component or psychological reaction to the plaintiff’s physical condition.
189 In summary, Mr Love was of the view that the plaintiff had a chronic back condition from which recovery to allow him to re engage in physical work was slight. He did not think that there was a strong indication for spinal surgery, and he considered physiotherapy was likely to be the mainstay of treatment.
190 Mr Love concluded it was possible, with the passage of time, that there would be reduction of symptoms and the plaintiff might be able to engage in work that was not physically demanding of his lower back.
191 Dr Timothy Entwisle, psychiatrist, examined the plaintiff on behalf of CGU Workers Compensation Insurance on 16 July 2009.
192 The report was tendered for the purposes of the history that the plaintiff had recently had some haemorrhoid problems for which he underwent investigation in the form of a colonoscopy before travelling overseas last year.
Claim Documentation
193 By letter dated 23 September 2008, CGU Workers Compensation Insurance advised the plaintiff that he had an entitlement to lump sum compensation of $9,650 pursuant to s.98C of the Act in relation to the back, L4-5 disc bilateral sciatica, with the date of injury accepted as 11 June 2007.
The Defendant’s Medical Evidence
194 Dr Bloom, occupational physician, examined the plaintiff on behalf of CGU Workers Compensation Insurance on 23 January 2008.
195 Dr Bloom noted that the plaintiff presented in a defensive and somewhat hostile manner, and he was extremely reluctant to offer any history at all. Dr Bloom was not at all confident that he had managed to obtain an accurate and full story.
196 The plaintiff advised he had had lower back pain since some time in mid 2007 when he was doing work sorting potatoes. He had the next couple of days off work on sick leave. When he returned to work he was feeling fine, but he was not sure if he was in any pain.
197 On 11 June 2007, the plaintiff was carrying out similar work when he described a burning sensation and spasms in his low back. He was unable to get out of bed the following morning, and he attended his general practitioner, who certified him unfit for work.
198 The plaintiff commenced a return to work program late in 2007 on alternative duties, initially working one hour a day, and by the time of this examination he had increased his hours to two hours a day, five days a week. The work was light, and the plaintiff told Dr Bloom he was coping well and he felt relieved to be back in a work environment.
199 On examination, the plaintiff complained of constant low back pain which he estimated at five and six out of ten. He also described intermittent episodes of symptoms into his left groin and into the anterior aspect of his left thigh. Occasionally he had symptoms radiating into his right groin. The plaintiff described a sitting tolerance of up to an hour, a standing tolerance of between ten and fifteen minutes, and a walking tolerance of between half an hour and an hour.
200 At that time, the plaintiff told Dr Bloom he occasionally wore a back brace, but he had not had any physical therapy and he was not involved in any exercise program. He took occasional Paracetamol tablets, but not daily.
201 The plaintiff, on mental state examination, admitted to feeling depressed and very frustrated. The plaintiff told Dr Bloom: “They’ve locked up the wrong person. I feel victimised.”
202 Dr Bloom commented that it appeared the plaintiff first started to feel victimised after he became a union delegate some four or five years earlier. That persecution worsened since the area union official left on stress a year earlier. The plaintiff said he used to love working with the defendant, but now “he does not care, and they do not care about him, and they are after him.”
203 Dr Bloom noted much of the plaintiff’s discontent was related to the fact that he was moved from the afternoon shift to the dayshift for punishment, following an altercation with another worker in early 2007.
204 The plaintiff suggested to Dr Bloom that working on the dayshift did not fit into his lifestyle at all, making it very hard in terms of taking children to and from school, and further, he suggested he would earn more money if he was working on the afternoon shift.
205 The plaintiff told Dr Bloom he had had some episodes of low back pain in the past, but the most important one happened in early 2007 on the chip packing line when he was bending forward. He was seen by the company doctor, who put him off work for three days, and then he returned to work on alternative duties on the potato line. The plaintiff told Dr Bloom at that stage he had made a full recovery and was not suffering any further low back pain until June 2007.
206 On examination, there was no evidence of spinal deformity. Examination of the mid and lower back revealed a restricted range of movement. Extension and lateral flexion bilaterally was to 10 degrees, and rotation was to 15 degrees. However, forward flexion was relatively full to 90 degrees, with the plaintiff’s fingertips reaching to his ankle.
207 Palpation of the plaintiff’s spine revealed exquisite tenderness to relatively light palpation in the midline over the lower thoracic spine, but more particularly over the right lower lumbar and lumbosacral spine. There was a withdrawal response with light skin touch palpation in those areas, and also in the paravertebral areas of the lumbosacral spine.
208 Straight leg raising was resisted bilaterally beyond 45 degrees. However, it was noted that when distracted, the plaintiff’s leg raising was 90 degrees bilaterally.
209 Neurological examination of the lumbosacral spine and lower limbs failed to reveal deficit. There was no evidence of muscle wasting or weakness, nor evidence of sensory change, and deep tendon reflexes were brisk and equal. There were some positive Waddell’s signs, indicating the possibility of abnormal illness behaviour.
210 Dr Bloom noted clinical examination revealed a very angry and defensive man who offered a particularly vague history. That, plus the clinical inconsistencies, gave Dr Bloom the distinct impression that the plaintiff was showing signs of abnormal illness behaviour, indicating a strong functional or psychological input, which made it extremely difficult to assess the extent of his current back pain.
211 Dr Bloom noted that the June 2007 MRI was reported as showing some relatively mild degenerative changes within the L4-5 disc with a small broad- based disc bulge, the significance of which was uncertain.
212 Based on the plaintiff’s history, Dr Bloom suspected that the plaintiff had suffered with a low back soft tissue strain superimposed upon pre-existing mild degenerative changes in the lumbar spine. He noted, most importantly, there appeared to be very significant psychosocial factors impacting on the plaintiff’s inability to successfully rehabilitate. It was Dr Bloom’s overall impression that those functional aspects were now of greater impact than any physical aspect.
213 Dr Bloom thought the plaintiff was suffering from non specific chronic low back pain, and, assuming the veracity of his history, he thought it reasonable to accept the plaintiff’s work had served as a contributing factor in the form of a low back strain.
214 Dr Bloom suspected that the main barrier to successful rehabilitation were psychosocial factors, and not the physical injury. He thought there appeared to be motivational issues relating to anger and the plaintiff’s perception that he had been targeted and victimised by the defendant.
215 Dr Bloom thought imaging findings were possibly of doubtful significance, although there was some radiological evidence of pre-existing minor degenerative changes in the lumbar spine.
216 Dr Bloom thought the plaintiff certainly had the capacity to increase his working hours, and he could not identify any contraindication to the plaintiff working full time within appropriate physical constraints. Dr Bloom believed that with the appropriate emotional and physical support, and with an appropriate mobilising and exercise program, there was no reason to believe that physically the plaintiff would not be able to resume pre-injury duties in the medium term.
217 He thought the plaintiff could work safely full time, avoiding prolonged static postures, changing posture frequently and particularly avoiding static forward bending, avoiding handling items in excess of 8 kilograms, and avoiding frequent twisting and bending, particularly whilst under load.
218 He noted that the plaintiff did have signs of anger and possibly depression, and may possibly benefit from access to a counselling service.
219 Dr Bloom thought the plaintiff’s prognosis remained guarded because there appeared to be motivational issues identified, and certainly a great deal of psychosocial issues.
220 Dr Bloom carried out a worksite assessment. He thought that work in the chip packing area, the pie line, or the kettle chip palletiser were suitable jobs for the plaintiff.
221 Dr Chris Baker, occupational physician, wrote to CGU Workers Compensation Insurance on 27 July 2009 confirming he thought the jobs set out in a recent vocational report of general postal delivery worker, product assembler, meter reader and parking inspector were suitable employment for the plaintiff.
222 The defendant tendered a report from Dr Tisdall to Mr Barrett dated 11 May 2007 where Dr Tisdall thanked Mr Barrett for seeing the plaintiff, whom he described as having long term, severe lower back pain.
The Defendant’s Other Evidence
223 The worker’s Claim Form dated 5 July 2007 set out that the date of injury was 11 June 2007 at 1.00 pm. The injury was reported to Andrew Shanahan.
224 It was noted, in terms of a previous condition, that there was the “same issue on 5 June 2007”.
225 The defendant wrote to the plaintiff on 23 February 2009, advising him that it was unhappy that he had gone overseas without requesting leave whilst he remained in the defendant’s employ.
226 In that correspondence, the defendant noted a letter of 25 September 2008 in which the plaintiff was advised that the defendant wanted to assess whether he could meet the inherent requirements of his pre-injury substantive position, when he could return to it, and, if he was not able to within a reasonable time, they would have to consider what options were available, including whether there was a suitable available alternative position, and, if not, whether it should terminate his employment.
227 In that letter the defendant also set out its preliminary view that it was unlikely that the plaintiff would be able to perform manual work, and in particular, heavy lifting and prolonged bending and/or twisting, within a reasonable period of time, if at all; and, as a result, he was not presently able to perform the inherent requirements of his pre-injury duties.
228 Having given the plaintiff an opportunity to respond to this preliminary view, the defendant advised on 23 February 2009 that its preliminary view remained unchanged, and it therefore proposed to terminate the plaintiff’s employment.
229 The register of injuries set out as follows-
Date of Injury Description
17 February 1997 Cleaning the meat dicer machine, lifting palletiser 2 June 1997 Lifting drain covers and palletisers in the meat room 6 April 2001 No details given 23 January 2007 Employee was packing when he started to get spasms in his back 5 June 2007 Lifting waste potato tubs
The Defendant’s Lay Evidence
230 Mr Rodney Schubert, the defendant’s human relations manager, swore an affidavit on 21 April 2010.
231 Mr Schubert set out that the plaintiff started work with the defendant in October 1995 as a casual manufacturing operator and cleaner, initially working the afternoon shift. He was given a permanent cleaner position on 13 August 1996.
232 On 22 January 2007, the plaintiff moved to dayshift in the packaging area of the chip plant, following a decision from the Industrial Relations Commission.
233 On 23 January 2007, the applicant reported an injury to his back which was allegedly caused by packing chips. This was the first time that the defendant was made aware that that task was causing the applicant considerable discomfort, and an incident report was completed.
234 The defendant arranged for the plaintiff to attend the company doctor, Dr Ball, who declared the plaintiff unfit for work from 23 to 29 January 2007, and thereafter he was placed on restricted duties until 2 February 2007.
235 It was Mr Schubert’s understanding that the plaintiff attended Dr Tisdall on 28 January 2007, who declared the plaintiff fit for restricted duties from 30 January 2007 to 15 February 2007; however, that certified suitable Return to Work Plan did not detail what the plan should involve. Attempts to elicit further details from Dr Tisdall were unsuccessful.
236 The plaintiff returned to work on 30 January 2007 and from then until 12 June 2007 his duties remained restricted by Dr Tisdall.
237 As a result of the plaintiff’s medical restrictions, the defendant determined the plaintiff be rostered on the chip line, completing potato inspections, which he did from 30 January 2007 until June 2007. It was decided that that was a better job because it was performed from a greater height.
238 Mr Schubert described the physical requirements of that job involving walking and standing, upper limb use, hand dexterity, lifting, upper limb strength and some bending. He noted that the day-to-day duties were such that the plaintiff was able to manage the process. For example, the conveyor belt was able to be stopped at the plaintiff’s discretion.
239 Mr Schubert deposed that Andrew Shanahan counselled the plaintiff as to how to perform these duties and what to do if he was experiencing any difficulty. He noted that Dr Tisdall continued to certify the plaintiff fit for these duties of potato inspecting with a full knowledge of what was involved.
240 On 7 June 2007, the plaintiff made an unofficial report of his injury to Mr Barbuto, stating he had injured his back as a result of lifting waste buckets.
241 On 5 June 2007, this injury was recorded in the Injury Register, and on 13 June 2007, the plaintiff presented with a Certificate of Capacity, stating he was unfit for any work from 13 June 2007.
242 From 13 June to 4 July 2007, the plaintiff was declared unfit for any duties by Dr Tisdall. From 5 July 2007 he was certified fit for alternative duties which were not available with the defendant at that time.
243 Following that date, the plaintiff worked intermittently in a range of alternative modified duties, with Dr Tisdall continuing to provide him with modified duty certificates.
244 Mr Schubert noted the plaintiff returned to work for a short period of time, working one to two hours mainly on the kettle palletiser and glass depal with the suitable duties being reduced to only two by Dr Tisdall. Reference was made to Dr Bloom’s assessment and his view that the plaintiff could complete duties packing chips on the pie line and the kettle chip palletiser.
245 Mr Schubert noted that the waste tub at overflowing capacity did not weigh more than 30 kilograms. It was suggested the plaintiff would have been advised by his team leader to empty the waste bins at his own discretion.
Findings
246 I accept that the plaintiff suffered injury to his back in the incident which occurred on a date in the first weeks of June 2007.
247 It is not necessary for the purposes of this application for the plaintiff to establish on what particular date the incident occurred.
248 I accept that the incident occurred in June 2007, having been reported in the Register of Injuries to have occurred on 5 June 2007.
249 Mr Schubert deposed to an unofficial report of injury having been made to Ms Barbuto on 7 June 2007.
250 Further, I am mindful of the fact that by letter dated 23 September 2008, CGU Workers Compensation Insurance advised the plaintiff that he had an entitlement to lump sum compensation of $9,650 pursuant to s.98C of the Act in relation to “back, L4-5 disc bilateral sciatica”, with the date of injury accepted as 11 June 2007.
251 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might
be able to satisfactorily explain its conduct.”
252 No such explanation has been forthcoming in the present case.
253 The plaintiff’s back injury has been diagnosed principally as an aggravation of L4-L5 disc degeneration.
254 There has been mention of the presence of abnormal illness behaviour by Dr Baker and to a much lesser degree by Mr O’Brien and Mr Leitl, but these practitioners accepted an ongoing organic basis for the plaintiff’s back condition.
255 Dr Bloom, who thought functional aspects were now of greater impact than any physical aspect, suspected that the plaintiff had suffered with a low back soft tissue strain superimposed upon pre-existing mild degenerative changes in the lumbar spine.
256 Prior to the said date, the plaintiff had back pain but he did not require more than minor treatment and had little, if any, time off work. He next experienced back pain following work on the chip line in January 2007.
257 Following the January 2007 incident on the chip line, the plaintiff had only about a week off work. He sought medical treatment from Dr Tisdall, who then referred him to Mr Barrett.
258 The plaintiff was able to continue working in a different role on the potato line until suffering injury in June 2007, following which he only returned to work with the defendant for limited light duties over a couple of weeks in early 2008.
259 The plaintiff did not consider he had a severe long term back problem before June 2007. He considered that prior to the incident in June 2007, he was “pretty good” and that the injury in the incident was “the straw that broke the camel’s back”. He regarded himself prior to June 2007 as capable of doing heavy work and his back was “ok”.
260 Whilst Mr Schubert described the duties on the potato line as light, I accept that such duties were not so on occasions when there was a bad batch of potatoes being processed, such as occurred on the said date when the duties were significantly heavier. At that time, there were many more potatoes to sort and there was more waste which filled the bins which then required emptying.
261 This heavier work resulted in the plaintiff experiencing significant pain to the point where he ceased work and was only able to resume very limited part time duties for a short time with the defendant before his employment was finally terminated in February 2009.
262 Cross-examination was largely focussed on the plaintiff’s pre-incident back condition and union issues with the defendant rather than the extent of his pain and disability, although his current work was explored in some detail.
263 There was no surveillance film of the plaintiff.
264 I accept that the plaintiff was a credible witness with a strong work history, having worked for the defendant for twelve years until suffering injury in June 2007.
265 I accept that since June 2007, the plaintiff has suffered constant pain in his back and left loin/buttock going down into his thigh and upper calf. His pain is aggravated by all daily activities, including such minor occurrences as sneezing and coughing. The severity of the pain depends on the level of activity.
266 As a result of his back pain, the plaintiff’s sleep is broken – a matter which Maxwell P considered to be of great significance when considering serious injury consequences in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, paragraph 45.
267 Arguing against the seriousness of the plaintiff’s injury in an employment sense, counsel for the defendant relied upon Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292. Reliance was placed on Chernov JA’s comments that if a plaintiff returned to full time alternate duties following injury, it would be difficult to find a serious injury in terms of pain and suffering unless there was evidence that the plaintiff experienced significant pain or otherwise significantly suffered physically.
268 I accept that in his current job at Boral the plaintiff works full time with regular overtime. It is a very light job which was organised for him by his brother who is a boss at Boral. The plaintiff is not having any problems with his duties which he has described as easy. He also drives an hour to and from work from his home in Craigieburn.
269 Whilst the plaintiff is clearly coping with this job, it is a position in which he can move freely when he feels like it. The job does not require any lifting or bending. He still however at times requires to wear a brace at work when he is working longer hours.
270 Whilst the plaintiff is coping at present with this very light job, I accept that he does not have the capacity to engage in unrestricted manual work because of his back condition.
271 Save for Dr Bloom, all medical practitioners agreed that the plaintiff requires restrictions placed on his work duties and that he is not fit for unrestricted manual work.
272 The consensus of medical opinion is that the plaintiff is only able to manage lighter types of work not involving any prolonged stooping, bending, standing or sitting, heavy lifting or heavy pushing activities.
273 Of significance in this regard is the defendant’s own view of the plaintiff’s work capacity as set out in the termination letter of February 2009 that it was unlikely that the plaintiff would be able to perform manual work, and in particular, heavy lifting and prolonged bending and/or twisting, within a reasonable period of time, if at all; and, as a result, he was not presently able to perform the inherent requirements of his pre-injury duties.
274 As Mr O’Brien commented, the plaintiff’s level of incapacity was evidenced by his inability to return to work on more than a very limited basis for a short time early in 2008.
275 The plaintiff’s present job is quite suitable for him provided he is careful and selective with regard to work activities, as Mr Brearley and Dr Tisdall noted.
276 The plaintiff continues to take Nurofen and Panadol for his back pain. He has avoided taking stronger medication as it caused constipation and resulted in the plaintiff suffering haemorrhoids for which he sought specialist referral and a colonoscopy was recommended.
277 Despite these problems, the plaintiff’s back pain at times is so severe that he takes Panadeine Forte to help him sleep properly and to enable him to do certain things.
278 The plaintiff continues to use three different back braces. He keeps one in his locker at work and wears it a couple of times per week if he is working longer hours. Sometimes he wears a brace to help him sleep.
279 The plaintiff has a lot of difficulty undertaking domestic duties, gardening and household maintenance tasks without assistance. He has problems sitting for prolonged periods, driving or sitting in a plane. As a result of his back condition, the plaintiff has not travelled to Turkey as often as he has wished to visit his family and his wife’s family.
280 The plaintiff has difficulty undertaking recreational activities such as fishing and socialising. He cannot play normally and “muck around” with his two young boys. His back becomes painful whilst just standing around watching his son train at soccer.
281 A very significant consequence of the plaintiff’s back injury is that the plaintiff now has significant difficulty playing the guitar – his favourite pastime, having grown up with a love of music. He is not able to spend nearly as much time playing guitar and when he does he has difficulty with his posture standing to play.
282 As the plaintiff has suffered back pain with no improvement for three years since the incident, I consider that his back condition is permanent. Mr Brearley, Mr O’Brien and, to a lesser extent Dr Baker, thought the plaintiff’s prognosis was poor and that there was a likelihood that he would continue to describe chronic back pain and leg pain into the foreseeable future.
283 The plaintiff is a reactively young man with small children. He has worked all his life in manual jobs and his capacity to do so in the future has been significantly compromised by the back injury suffered in the incident. He continues to suffer ongoing pain and discomfort which restricts his enjoyment of daily activities and recreational pursuits, particularly playing the guitar. His general mobility has been affected by his back injury as has his ability to perform daily tasks without pain.
284 Taking into account all the evidence, I am satisfied that the plaintiff has a serious and permanent impairment of his back.
285 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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