Ozer v State Furniture Supplies Pty Ltd

[2009] VCC 135

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-08-01423

Sebahattin Ozer	Plaintiff
v
State Furniture Supplies Pty Ltd	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	9-11 February 2009
DATE OF JUDGMENT:	10 March 2009
CASE MAY BE CITED AS:	Ozer v. State Furniture Supplies Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 135

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Serious injury application – Accident Compensation Act 1985 – s134AB(16)(b) – Permanent serious impairment or loss of a body function– Injury to the lumbar spine – Pain and suffering

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.A. Jewell S.C.	Grando & Beheny
With Mr D.K. McIvor
For the Defendant	Mr P.B. Jens	Wisewoulds
HER HONOUR:

1 The plaintiff seeks leave under section 134AB(16)(b) of the Accident Compensation Act 1985 to issue proceedings for the recovery of damages for pain and suffering in respect of a permanent impairment to the lumbar spine flowing from an injury to the back which he suffered during the course of employment as a storeman, assembler and factory hand on 26 June 2001 while picking up a bundle of heavy chair frames.

2          The defendant says that in terms of pain and suffering the consequences of the plaintiff’s lumbar spine impairment do not meet the required threshold. It says the recent radiology shows that over time some of the plaintiff’s lumbar disc prolapses have resorbed and therefore the organic problem has abated. It emphasises that he was able to work fulltime with overtime in 2005 and 2006 while taking less medication than before and only moved to lighter duties because of a supervening neck injury. In spite of the plaintiff’s evidence that his back symptoms have been worse in the past 8 months or so, the defendant says that there is no medical evidence of any complaint to this effect. It says that a major component of the plaintiff’s presentation is psychological. While it accepts that the plaintiff had a back problem in 1997 which abated, it says the plaintiff should have told his treating doctors about this episode. It also says the plaintiff should have sought an up to date report from his current doctor who has been treating him for the past few months. Finally, it says that the plaintiff’s main problem since 2007 has been the neck

3          The plaintiff commenced employment with the defendant in early 2001 as a storeman, assembler and factory hand. His duties included loading and unloading school and office furniture. He was injured on 26 June 2001 when he picked up a bundle of heavy chair frames and suffered pain in his lower back which spread to his left leg. He was treated conservatively with physiotherapy and medication, but his back and leg pain persisted. He obtained light work on a casual basis as a packer for a few months in early 2006. When there was no work for him there, he obtained employment on a casual, full-time basis as a machine operator/forklift driver until April 2007, when he injured his neck at work. Thereafter he did light duties with the same employer until he was laid off in December 2007.

4          In his affidavits, the plaintiff says that in spite of conservative treatment with physiotherapy and then medication, he continued to suffer a painful and stiff lower back with left leg symptoms. He was taking Panadeine Forte, Voltaren and Panamax. He had great difficulty finding lighter duties. He worked from February to June 2006 as a casual packer. In July 2006 he found employment through another hire company with Tyco as a machine operator/forklift driver and worked there until December 2007. During that period, he reduced his intake of medication to ensure he remained alert at work. He continued to suffer back and left leg pain but developed a neck injury in April 2007 and then worked on light duties until he was laid off in December 2007. Since then, he has been certified unfit for all work due to his neck injury and has not returned to work. Although his back pain and leg pain have improved somewhat over recent years, he continues to take Panadeine Forte and Voltaren for these symptoms, as well as for his neck symptoms.

5          Prior to his back injury, he would mow the lawns at home, paint his own home, work in his vegetable garden every day after work, go fishing with his brothers, travel long distances to go camping, do his own car maintenance and clean his house’s gutters. He played soccer with a team of co-workers from Ericsson from 1987 to 2000. He went to play bingo and to the casino regularly. As a result of his back injury, he can no long sit or drive for long periods to go on holidays or fishing. He can no longer do home maintenance, service his own car, tend his vegetable garden or mow the lawns. His physical relationship with his wife has been badly affected and he is ashamed of this. He can no longer play soccer. Worst of all, he says, he cannot play with his twin boys who are 10 years old.

6          The plaintiff was extensively cross-examined at the hearing. He agreed that he had seen his doctor in 1997 for back pain and leg pain but did not recall having any investigations at that time. He said the problem cleared up. He agreed that by late 2005 he had stopped seeing a psychiatrist for depression and that he resumed psychiatric treatment in 2007 after his neck injury. He said he concealed his back injury from his employer in February 2006 and found the work very easy but still had pain in the buttock and left leg at the end of the day. He said he had begun seeing Dr Baglar in September 2008 instead of Dr Munir because the latter kept him waiting for hours whereas Dr Baglar would give him a fixed appointment time. He said that Dr Baglar referred him for further investigations because he complained that his symptoms had worsened a little over the previous 6 months and he was getting up in the middle of the night with left leg pain. He agreed that Dr Baglar was certifying him as completely unfit for all work on the basis of his neck injury.

7          He said he could not play soccer any more and would do so all the time with his boys if he could. Since his back injury, he had never vacuumed for more than five minutes but stopped altogether six to seven months ago. He said he had lost fitness and could not bend or run and could not sit or stand for long periods or drive long distances. He could not stand long enough to fish. He stopped taking Voltaren because of stomach problems but was still taking at least two Panadeine Forte tablets per day for his back and leg pain, as well as Panamax.

Serious injury

8          In order to make out a “serious injury” within paragraph (a) of the definition in section 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function whose consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function[1], fairly described as being more than significant or marked, and as being at least very considerable.[2]

[1] See section 134AB(38)(b) of the Act

[2] See section 134AB(38)(c) of the Act

9          However, the psychological or psychiatric consequences of a physical injury are not to be taken into account when determining whether the plaintiff has suffered a permanent serious impairment or loss of body function.[3]

[3] See s.134AB(38)(h) of the Act.

10         A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[4]

[4] See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at para 58.

11        Decisions as to whether an injury is serious involves elements of fact, degree and value judgement.[5]

[5] Fleming v Hutchinson (1991) 66 ALJR 211

12        The psychological or psychiatric consequences of a physical injury are not to be taken into account in an application confined to paragraph (a) of the definition of “serious injury”.[6] Accordingly, so far as the evidence allows, the Court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis. This requires exclusion of any pain and suffering consequences which result from or are a manifestation of any recognised psychiatric condition (eg depression, adjustment disorder); chronic pain syndrome or disorder; functional overlay; exaggeration of symptoms, whether conscious or unconscious; or any other aspect of the plaintiff’s psychological response to the physical injury.[7] Where the Court is unable to strip aside the pain and suffering consequences in this way, ordinarily a plaintiff must fail, since the Court cannot be satisfied on the balance of probabilities that the organically-based pain and suffering consequences satisfy the statutory criterion (“more than significant or marked, and….at least very considerable”).

[6] See section 134AB(38)(h) of the Act

[7] Mutual Cleaning and Maintenance Pty Ltd v Anastasia Stamboulakis [2007] VSCA 46 per Maxwell P at p4-5 8 Biserka Zivolic v Hella Australia Pty Ltd – BC200705132, 3750 of 2006, per Redlich JA at [19]; Shock

13        However, where the evidence is consistent with the plaintiff having suffered both physical and psychiatric injury, if the nature of the medical evidence permits the conclusion that the consequences of the physical injury constitute a serious injury, then no stripping away may be required.8

Radiology

14        MRI of the lumbar spine on 25 June 2004 was reported with the following conclusions:

Asymmetric generalised disc bulge and marginal spur at L3-4 results in mild to moderate compromise to the exiting left L3 nerve within the left L3-4 foramen. No other focal disc protrusion or displacement of traversing nerve roots is seen.

15        X-ray of the lumbosacral spine on 2 August 2001 was reported as showing “minimal degenerative lipping” at L3-4 and L4-5. The report concluded that there were “minimal degenerative changes”.

16        CT scan of the lumbar spine on 9 August 2001 reported the following findings:

L3-4 disc: There is evidence of a left lateral disc herniation which appears to contact but not appreciably displace the exited left L3 nerve root. The right L3 root appears satisfactory as does the canal.

L4-5 disc: The disc appears satisfactory as are both exiting L4 roots and central canal.

L5-S1 disc: A moderately large left foraminal protrusion appears to possibly contact the undersurface of the exiting left L5 nerve root and also contacts and mildly displaces the traversing S1 root. The central canal and right sided nerves appear satisfactory.

Conclusion:

On the left at L5/S1 is a moderately large foraminal disc protrusion displacing the traversing S1 nerve root and also contacting the undersurface of the left L5 nerve root. Does this patient have evidence of left S1 sciatica? Consideration towards a CT guided foraminal block may be of use if the patient’s symptoms clinically warrant.

17        MRI of the lumbar spine on 8 November 2001 was reported as revealing, at L5-S1: a left postero-lateral and foraminal disc protrusion, with disc material abutting and displacing the traversing left S1 nerve root. The traversing nerve root did not appear compressed at this location. Mild L4-5 facet joint degeneration was present. The other lumbar discs “have retained their normal countour”.

18         CT scan of the lumbar spine on 20 October 2008 was reported with the following findings:

L3-4: disc height maintained. Slight, broad based, posterior disc bulge without central canal, lateral recess or exit neuroforaminal stenoses. No established facet degenerative joint disease.

L4-5: disc height maintained. Slight, broad based, posterior disc bulge without central canal, lateral recess or exit neuroforaminal stenoses. No established facet degenerative joint disease.

L5-S1: disc height maintained. Slight, broad based, posterior disc bulge, contacting but no (sic) appreciably displacing the S1 nerve root as they emerge from the thecal sac. No nerve root enlargement. No central canal, lateral recess or exit neuroforaminal stenoses. No established facet degenerative joint disease.

Conclusion: Mild, multilevel disc bulges with that at L5/S1 contacting but no (sic) appreciably impinging upon the S1 nerve root. However, if further imaging in this regard were sought in this clinical setting, MRI would be recommended.

19        MRI of the lumbar spine of 25 November 2008 was reported with the following findings:

L1/2 level: Mild diffuse disc desiccation without significant disc contour abnormality or canal compromise. Existing nerve roots unimpinged.

L2/3 level: No significant abnormality.

L3/4: Mild disc space height loss and early disc desiccation. Very minor annular bulging is seen. No canal or foraminal compromise.

L4/5 : Very minor diffuse disc bulging with the posterior contour just slightly effacing the anterior thecal sac. No significant canal stenosis or neural impinging lesion. Mild bilateral facet arthropathy is present.

L5/S1: Diffuse disc desiccation and mild disc space height loss is seen. There is an acute left posterocentral annular tear measuring 3 mm across without significant focal disc protrusion or neural impinging lesions. Mild facet arthropathy is present at this level. The visualised upper aspects of the sacroiliac joints are unremarkable. There is mild narrowing of the left lateral recess. The descending left S1 nerve is contacted but uninmpinged.

Conclusion: Acute L5/S1 left posterolateral annual tear may account for some acute lower back discomfort. No focal neural impinging lesions were seen.

Medical reports and evidence

20        The plaintiff relied on reports from a number of treating doctors: his general practitioners (Dr H Munir[9], Dr Schon,) his neurosurgeon (Mr Brazenor) and two orthopaedic surgeons ( Mr Owen and Mr Khan). In addition, the plaintiff relied on the medico-legal reports of orthopaedic surgeons Mr Weaver (as well as his evidence at the hearing) and Mr Shannon.

[9]             Dr Bulent Munir and Dr Halil Munir are brothers who practise medicine at the Medlot Medical Clinic in Coburg. The plaintiff started attending the practice in 1986 and saw Dr Burent Halit first. Later, he was mainly treated by Dr Halil Munir in relation to his back problem. The plaintiff has been treated by a different general practitioner, Dr Baglar, since around September 2008. Dr Baglar ordered the CT scan of October 2008 and the MRI scan of November 2008.

21        Dr Halil Munir reported on 3 February 2004 that he saw the plaintiff on 30 June 2001 with a complaint of lower back and left leg pain. His symptoms persisted and he was referred for CT and MRI and for opinions from Mr Owen and Mr Brazenor. Mr Owen advised rest and epidural injection. Mr Brazenor advised exercise and conservative treatment with analgesics and anti- inflammatories. The plaintiff was also sent for rehabilitation. There was some improvement in his symptoms and he was advised to obtain office work and not do any “labouring jobs”. He was certified to do “very light duties” with no lifting, rotation, twisting or bending. Dr Munir noted that the plaintiff began to show signs of depression and was commenced on anti-depressants and referred for psychiatric treatment. He concluded that while working for the defendant the plaintiff had “sustained significant disc pathology in his lower back”. He felt the back condition was permanent and left him with residual disability “in the order of 20-25%”.

22        In a further report dated 25 May 2007, Dr Munir noted that the plaintiff had been working for the past eight months and reported sleeping better but still having other depressive symptoms. He was still taking anti-depressants. He repeated his earlier conclusion in relation to the plaintiff’s back condition.

23        On 23 June 2004 Mr Brazenor reported that he had seen the plaintiff in November 2001. The plaintiff told him his sciatica had abated somewhat but that he still suffered left-sided sciatica if he sat for more than a few minutes or did any bending, lifting or twisting. Mr Brazenor observed during the consultation that he found sitting difficult. On examination he noted that flexion and extension at the waist were limited by low back pain and left sided sciatica. Straight-leg raising on the left was limited by sciatica but was performed freely on the right. He also suffered mild low back pain and left sided sciatica at the end of supine examination.

24        Mr Brazenor noted that the radiology in 2001 “all showed chronic mild deflation of the L3/4 disc; and the culprit at L5/S1 where there was a large left- sided posterior quadrantic bulge”. He felt this could not be repaired surgically by discectomy, but that any surgery would have to be a fusion. He concluded that the plaintiff “had grievously injured his L5/S1 disc whilst assembling and loading tables and chairs in the first half of 2001”, but that he was improving. Mr Brazenor suggested conservative management. He was certain that the plaintiff would be permanently incapable of doing manual work involving bending and lifting and criticised the rehabilitation efforts aimed at returning him to any such work. He concluded that all that was needed was a regular walking program and no bending at the waist. He noted that the plaintiff had improved on this regime by early February. In December 2002 he noted that the plaintiff was walking a total of two hours per day but said his sitting time was still limited. He told the plaintiff he could work full-time but could never do a job involving bending or lifting. On review in June 2004 he noted that the plaintiff was depressed at his inability to find work and was receiving treatment from Dr Kochar. He noted that sitting and standing were limited to one hour at a time before left buttock pain supervened. He noted that the plaintiff was taking 0-4 Panadeine Forte every day for his back and leg pain. He concluded that the plaintiff’s back injury was serious in that it resulted in permanently preventing him from doing jobs involving bending and lifting which were generally more available to him. He felt that the plaintiff was able to work as a store supervisor or a shopping centre security guard. He recommended a further MRI scan.

25        On 2 July 2004 Mr Brazenor noted that the MRI scan of 25 June 2004 showed “very mild diffuse bulges of the left sides of L3/4 and L5/S1 discs” and that the scan “shows considerable healing in the past 2.5 years”.

26        On 18 April 2005, Mr Brazenor wrote to the plaintiff’s general practitioner noting he had reviewed the plaintiff and felt “the problem is now 100% psychological”. He noted that he walked slowly in a depressed fashion and found that he could “flex at the waist to 70 degrees with mild left sacro-iliac discomfort, and can extend to 20degrees.” He noted the plaintiff’s complaint about his inability to get a job but still concluded that the plaintiff should not return to a bending and lifting job.

27        Dr Schon saw the plaintiff on 18 July 2001 with a history of four weeks of left posterior thigh pain which he diagnosed as referred pain from the lower back. He noted that even with modified duties the plaintiff’s symptoms did not abate and he had difficulty sitting for more than thirty minutes. He noted that on the x-rays and on the history there was “no evidence of any pre-existing degenerative disc disease or any intrinsic condition which would have resulted in this having these symptoms spontaneously”. He felt that given his condition had not stabilised and felt that given the size of the prolapse he may need decompression surgery of the left L5 disc nerve root. He did not see the plaintiff after September 2001.

28        Mr Owen saw the plaintiff in September 2001 on referral from Dr Schon for a complaint of left sided sciatica which had not improved with physiotherapy and anti-inflammatory medication. In his report dated 29 September 2004 he noted that the CT scan confirmed his clinical diagnosis of an L5-S1 protrusion. He recommended that the plaintiff cease heavy work, and have an epidural steroid injection. In July 2004 the plaintiff told him he did not have that injection on the advice of his general practitioner. The plaintiff told him his pain was better than in 2001, but was still provoked by sitting. He could walk without pain. He had occasional episodes of back pain which limited his ability to do domestic chores such as gardening. He still did the vacuuming. Mr Owen felt he was unfit, and had minimal tenderness in his lumbar spine, but found that his “Waddell functional signs for non-organic signs was negative”. He noted that the MRI of June 2004 did not comment on the original disc protrusion at L5-S1.

29        Mr Owen concluded that the plaintiff had an L5-S1 disc protrusion causing back and left leg pain which was consistent with his clinical examination. He recommended greater fitness as a means of controlling his symptoms, but noted that the natural history of such disc protrusions was to resolve, and that “about 12% of that population do have chronic grumbling low back pain”. He felt that the plaintiff should not return to work involving heavy lifting, but noted that generally vacuuming at home “is impossible for patients with a significant degree of disc pathology”. He did not think that the plaintiff’s injury “would have a major impact on his domestic life” apart from preventing heavy labouring, and did not “think it would interfere with his social domestic life or recreational activities very much otherwise”. He felt that the plaintiff could return to work full-time in suitable employment.

30        Mr Khan saw the plaintiff in March 2004 on referral from Dr Munir. The plaintiff complained of a constant ache in the lower back and pain in the left buttock going down to the left thigh which radiated down to the back of his left calf and leg to the ankle on coughing or sitting for long periods. He walked five kilometres per day in spite of his pain. He ceased physiotherapy on the advice of Mr Brazenor. He was taking Panadeine Forte for his pain. He could not bend or lean forward as this caused pain to shoot down from the left buttock to the left leg and could not sit for long periods. He did minimal work in the garden and avoided excessive bending or twisting of the spine. He could drive and take his children to school. Mr Khan felt that the plaintiff’s work history of bending and lifting repetitively resulted in a disc prolapse with left sided leg pain.

31        Mr Khan concluded from the radiology that the plaintiff had a small disc prolapse at L3/4 which was contacting the left sided L3 nerve root, as well as a moderate disc prolapse at L5/S1 which was mildly compromising the left L5 nerve root. He concluded that the injury had affected the plaintiff’s working life as well as his social, domestic and recreational activities.

32        On 23 June 2007 Mr Khan reported that he re-examined the plaintiff in March 2007 after seeing him 3 times in 2004. He noted that the plaintiff had been working as a casual machine operator five days per week. The plaintiff told him his back was stiff but he did not have back pain at rest. He could not strain at the toilet or sit or stand for long periods without pain radiating down the back of his leg. He had a tight feeling in the back of the left buttock. He was taking Panadeine Forte, particularly when the pain was worse. He had not done any vacuuming for 6 or 7 months. He did not do any housework or gardening or shopping. On examination, he again noted restriction in flexion and rotation with pain in the lower back, left buttock and thigh. He concluded that the disc prolapses at L3/4 and L5/S1 were consistent with the work injury sustained on 26 June 2001. He felt that the plaintiff’s condition had improved since then, leaving him with stiffness in his back, flare ups for pain on strenuous activities involving excessive bending, twisting and turning of his spine or lifting unduly heavy weights. He felt the plaintiff had been left with a partial and permanent impairment of function of the lumbar spine and was unfit for his pre-injury employment. He felt there would be an effect on his working life and on his social, domestic and recreational activities.

33        In a further report dated 21 January 2009, Mr Khan noted that the plaintiff continued to complain of the symptoms outlined in his earlier report, and told him that the symptoms had remained about the same as previously discussed. The plaintiff was taking two Panadeine Forte tablets per day to control his pain, and sometimes took Tramal tablets as well. He could only drive short distances and some light gardening. He could not sit on low chairs. He could dress and undress himself. He noted the new MRI and CT scan reports and felt they confirmed the conclusions he expressed in June 2007, which he adopted again.

34        Mr Michael Shannon examined the plaintiff at the request of the defendant’s insurer in January 2005 and reported his complaint of stiffness and soreness in the morning, ongoing low back pain with intermittent left sciatica particularly associated with sitting in low chairs and straining at the toilet. On examination he noted restriction of thoracolumbar movements by about a third and limited straight leg raising with no improvement in the sitting position. He noted that the disc prolapse at L5/S1 had diminished in size from 2001 to 2004, but concluded that there has been permanent aggravation and acceleration of disc degeneration.

35        Mr Hugh Weaver examined the plaintiff in December 2008 for medico-legal purposes at the request of the plaintiff’s solicitors. He noted the plaintiff’s complaint of persisting low back pain and left leg pain, difficulty sitting, interruption of sleep at night due to left leg pain and pain tending to be worse in the morning. He noted that the plaintiff appeared in a bit of discomfort and stood a few times during interview. He noted that the plaintiff resisted movement of all the major joint regions and flexed to just 40 degrees from neutral within the thoraco lumbar region and resisted movements in all other directions. He did not try to sit upright on the examination couch and resisted movements of the hips and knees. “By distracting his attention”, Mr Weaver elicited 45 degrees of straight leg raising bilaterally with negative sciatic stretch tests. He noted the radiological reports and concluded that his low back and left sciatic symptoms were initiated as a result of the employment – related incident on 26 June 2001 but also concluded that he exhibited “a quite substantial degree of non organic embellishment of the underlying physical problem”. He concluded it was impossible to assess the true range of movements but felt that the radiology confirmed “a problem of generalised, multiple level lumbar disc pathology”. He noted that the plaintiff had received very little in the way of physical treatment over recent years. He concluded that due to his back and neck problems the plaintiff could not do any heavy employment involving bending or twisting of either the cervical or lumbar regions and should be restricted from handling weights of more than 5 kg. He accepted that the plaintiff would be disadvantaged to some extent in his daily activities by his persisting low back problem and left leg symptoms.

36        In a letter dated 17 December 2008 Mr Weaver confirmed that all the radiological investigations confirmed “substantial intervertebral disc pathology affecting particularly the lumbo- sacral level”.

37        In a further report dated 11 February 2009, Mr Weaver noted that the November 2001 scan was consistent with the disc prolapse having occurred in the recent past, possibly in the incident of 26 June 2001. He noted that the 2004 scan suggested that the disc material had resorbed to some extent and this may explain the abatement in his symptoms over that period. He concluded that it was likely over the past seven years that the plaintiff had “probably experienced persisting symptoms” but had “very little doubt” that these symptoms were less substantial than they were at the outset. He felt that in spite of some abatement of the organic problem, the plaintiff “appears to have developed a lot of psychological reinforcement of the original organic problem” with the result of that “he basically complains of persisting symptoms in unchanged fashion”

38        At the hearing, Mr Weaver said that regardless of whether the plaintiff’s L5/S1 disc had prolapsed in 1997 (when he had an episode of back and leg pain), he worked on until 2001 without any medical treatment and therefore he felt the incident in 2001 significantly aggravated whatever was there before and makes him vulnerable to further episodes. He agreed that the plaintiff’s problems fishing, playing soccer, running and sitting were consistent with the organic injury to the lumbar spine caused or aggravated by the incident in 2001. He said that he was unable to elicit the plaintiff’s true range of movement when he examined him but was uncertain whether this was deliberate or due to the plaintiff being anxious or due to non-organic factors. He said that the plaintiff’s lumbar disc pathology was significant.

39        Mr Brian Davie, orthopaedic surgeon, assessed the plaintiff on 20 February 2008 at the request of the defendant’s solicitor and reported on the same day that the plaintiff told him there had been some overall improvement but that he experienced left leg pain every day, with pain on sitting, and was taking Feldene, Ducene and Panadeine Forte. He noted the plaintiff said he could not do heavy gardening, drive more than thirty minutes or play with his children. On examination he noted that lumbar spine movement was slowly performed but showed 70 degrees of flexion, 20 degrees of extension and lateral flexion and rotation to the right and left. He diagnosed an L5/S1 disc prolapse which he felt was consistent with the injury on 26 June 2001 and which was confirmed by the CT and MRI scans performed in 2001. He felt the MRI of 2004 showed some improvement over the 2001 scans and this was consistent with his clinical state. He felt the plaintiff should not return to his pre-injury duties but was capable of lighter sedentary work. He noted that he “did not consider there was any significant functional component or psychological reaction to the disc problem”.

40        The defendant relied on the medico-legal reports of Dr Bloom and Miss Lewis and the letter of Mr Brazenor to Dr B Munir.

41        Dr Michael Bloom, occupational physician, assessed the plaintiff’s capacity for employment at the request of the defendant’s insurer on 7 February 2008. His report dealt predominantly with the plaintiff’s neck and left arm symptoms. He reviewed the radiology of the cervical spine and concluded that the plaintiff had multi-level degenerative spondylosis of the cervical spine which had become symptomatic over the previous 10 months when he felt he was already working at full capacity. He concluded that the plaintiff was permanently incapacitated for his pre-injury duties as a result of his cervical spine problems, but could work in alternative duties with restrictions including: avoid working above chest height; avoid reaching with the arms; avoid lifting more than 5 kgs; avoid feeling “over-pressured”.

42        Miss Elizabeth Lewis, neurosurgeon, examined the plaintiff’s cervical and lumbar spines for medico-legal purposes at the request of the defendant’s solicitors and reported in May 2008, relevantly, that on examination all his back movements were limited and he was tender in the midline in the low lumbar region but there were no abnormal neurological signs. She noted that CT and MRI scans show “some prolapse in the lateral area on the left” and that after the injury to his back in June 2001 he developed low back pain with left S1 sciatica consistent with the MRI finding. She noted the plaintiff gave his history “in a straightforward manner” and she did “not believe there is a functional or psychological component”. She felt that as a result of his back and neck injury he could do light work such as packing small components.

Findings and reasons

43        I accept the weight of the medical evidence to the effect that in the incident of June 2001 the plaintiff suffered injury to the L3/4 and L5/S1 discs of his lumbar spine (whether by frank injury to the discs causing prolapses – as suggested by Mr Khan - or by permanent aggravation and acceleration of disc degeneration – as suggested by Mr Shannon), with resulting pain in the lower back, referred pain to the buttock and left leg, restriction of movement, and pain on prolonged standing, sitting and driving. The symptoms have required investigation and treatment with anti-inflammatories and analgesics. In spite of some improvement in the radiology (by 2004) and in the plaintiff’s symptoms in 2004 and 2005 (as noted by Mr Brazenor and Mr Owen), the plaintiff’s symptoms have persisted and are still present nearly 8 years after the incident, notwithstanding some apparent resorption of the disc prolapse at L5/S1 which is suggested by the most recent MRI and CT scans. The symptoms require ongoing treatment with strong analgesics such as Panadeine Forte.

44        I consider on the medical evidence that the plaintiff has suffered a permanent impairment of the function of the lumbar spine as a result of the incident at work on 26 June 2001.

45        I turn to consideration of the pain and suffering consequences of that permanent impairment.

46        I note that on the medical evidence, the plaintiff’s persisting back and left leg symptoms are consistent with the radiology and with the history of the incident of June 2001. According to that evidence, he is permanently unfit for his pre- injury duties due to his lumbar disc problems and only fit for very light duties not involving heavy lifting, bending, twisting or prolonged sitting or standing. He has restriction of movement in the lumbar spine consistent with the radiology and with his symptoms. There was recent medical evidence (from Mr Weaver in 2008 and Mr Khan in 2007 that his symptoms would impact on his occupational, domestic and recreational activities. I found the reports of Mr Brazenor and Mr Owen to be of less assistance than the more recent reports which addressed the MRI and CT investigations of 2008.

47        I note that in 2008 Miss Lewis and Mr Davie expressly noted the absence of any psychological element to the plaintiff’s presentation and that Mr Owen (in 2005) noted that his Waddell functional signs for non-organic signs was negative. I note that Mr Brazenor made no mention in his reports of any functional aspects to his presentation on examination in 2004 and 2005. I note that in December 2008 Mr Weaver could not properly test the plaintiff’s lumbar spine movements because he “resisted” movement of all the major joint regions and that he was uncertain whether this was deliberate or due to anxiety or other facts. In any event, Mr Weaver found that the plaintiff’s lumbar disc pathology was significant. All the examining experts who were able to properly test the plaintiff’s range of movement of the lumbar spine either were satisfied that there were restrictions of movement consistent with the clinical symptoms and history of the incident given by the plaintiff or noted the absence of any functional element to the plaintiff’s presentation.

48        I found the plaintiff to be a straightforward, dignified and understated witness. He took great care to answer as accurately as possible the questions asked of him, whether with the assistance of the Turkish interpreter or, when the interpreter was not available, in reasonably clear English. There was no embellishment by him of his symptoms or his condition. I accept without reservation his evidence as to the pain and restrictions he suffers as a consequence of his lumbar spine impairment and as to the impact of this impairment on his occupational, domestic and recreational activities. Whereas prior to June 2001 he had no ongoing lower back or left leg symptoms and was unrestricted in the activities he could undertake at home and at work, since the incident he has had and continues to have stiffness in the back and daily back pain and left leg pain. As at the date of the hearing, he takes Panadeine Forte tablets daily for this pain. He is disturbed by leg pain at night. He cannot do any vacuuming. He cannot stand or sit or drive for long periods. He cannot bend or twist or lift heavy weights. He cannot play with his 10 year- old twin sons, which causes him distress. His physical relationship with his wife has been badly affected, which makes him feel ashamed. He can no longer play soccer or run. He has restricted range of movement in the lumbar spine. He can only do light gardening. Although he was reasonably well- educated in Turkey, his occupational history in Australia has been in heavy work or in lighter duties of a semi-skilled kind. His lumbar spine condition, with the attendant limited sitting, standing and driving tolerances may impact on his capacity to undertake such light duties or even other sedentary occupations in the future.

49        In all the circumstances, leaving aside any psychological consequences of his physical injury to the lumbar spine, I am satisfied that the pain and suffering consequences of his impairment are fairly described as being more than significant or marked, and as being at least very considerable when judged in comparison with other cases in the range of possible impairments of losses of body function.

Conclusion

50        Leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering in respect of the injury to the lumbar spine sustained on 26 June 2001 during the course of his employment with the defendant. I reserve the question of costs.

Records Pty Ltd & Anor v Matthew James Jones [2006] VSCA 180 per Bell, A.J.A. at [68-[72]