Paul v Victorian WorkCover Authority
[2017] VCC 146
•2 March 2017
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationSERIOUS INJURY LIST Case No. CI-15-01627
RAVINDRA PAUL Plaintiff v VICTORIAN WORKCOVER AUTHORITY Defendant ---
JUDGE:
HIS HONOUR JUDGE CARMODY
WHERE HELD:
Melbourne
DATE OF HEARING:
17 February 2017
DATE OF JUDGMENT:
2 March 2017
CASE MAY BE CITED AS:
Paul v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:
[2017] VCC 146
REASONS FOR JUDGMENT
---Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the lower back – consequences of the physical injury to the lower back – pain and suffering only – whether the statutory definition has been satisfied
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(a)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave refused in respect of the application to bring common-law damages for pain and suffering as a result of injury to the lower back.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr S Carson Maurice Blackburn Pty Ltd For the Defendant Mr C O’Sullivan Thomson Geer HIS HONOUR:
1 This is an application by the plaintiff brought by way of Originating Motion dated 8 April 2015. The plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The plaintiff seeks leave to bring proceedings to recover damages for an injury suffered by him arising out of, or in the course of, his employment with the employer, Koex Pty Ltd (“the employer”), on 18 March 2009.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages only in respect of a low-back injury he claims he suffered during the course of his employment with the employer.
3 The evidence adduced in this hearing was:
·The plaintiff gave evidence and was cross-examined
·Exhibit P1, the Plaintiff’s Court Book (“PCB”), pages 11-101 and pages 111-118
·Exhibit D1, the Defendant’s Court Book (“DCB”), pages 1-8.
4 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”. The loss of body function in this case is to the plaintiff’s lower back.
5 Mr O’Sullivan, on behalf of the defendant, identified the issues in this application as follows:
(i) The defendant accepts that the injury to the plaintiff’s lower back was compensable;
(ii) The defendant says the ongoing consequences of the initial injury to the plaintiff are relatively minor and do not meet the statutory test. Mr O’Sullivan described the case as a “range case”;
(iii) The defendant relies on a non-organic component of the plaintiff’s presentation which has not been disentangled as required under the legislation.
6 The plaintiff was cross-examined during the course of this application. Neither the plaintiff’s treating practitioners nor the medico-legal practitioners were cross-examined in this application. The plaintiff relies upon the reports tendered in the Plaintiff’s Court Book.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of, or due to the nature of, his employment on or after 20 October 1999;[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required by the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
10 The plaintiff was born in Fiji in 1964. He is now fifty-two years of age. The plaintiff migrated to Australia in 1996.
11 The plaintiff is a married man and lives with his wife and daughter.
12 The plaintiff was educated in Fiji and completed training as a fitter and turner in approximately 1983.[3] He worked as a fitter and turner in Fiji prior to arriving in Australia in 1996.
[3]Transcript (“T”) 10
13 The plaintiff was employed as a fitter and machinist with the employer between April 2008 and the date of his injury, 18 March 2009.
14 Subsequent to the plaintiff’s injury and initial treatment, he has returned to work as a carer in September 2011. The plaintiff worked as a carer for an elderly gentleman who suffered from dementia.[4] In the course of the carer employment, the plaintiff travelled with his patient on two overseas trips in 2011. The first trip was to the Netherlands, the home country of the patient. The second trip overseas was a cruise, commencing at Dubai and going to Greece.[5]
[4]T12
[5]T13
15 In 2013, the plaintiff obtained employment as a delivery driver at a pharmacy in Preston.[6] The plaintiff continues to work as a delivery driver for the pharmacy which involves trips to various nursing homes and aged-care facilities for the delivery of medications and Webster packs. The plaintiff’s work involves a morning shift and an afternoon shift. The plaintiff, in between those two shifts, is able to return to his home where he plays music before returning to work.
[6]PCB 13; T14
16 The plaintiff is currently not attending any medical practitioner for pain or lower back treatment. The plaintiff gave evidence that he takes approximately sixteen Panadol Osteo tablets per week to manage his pain. The Panadol Osteo medication is sourced by the plaintiff from excess medication at the aged-care facilities. In the past, the plaintiff has taken Panadeine Forte tablets which were initially prescribed by his general practitioner in 2009. He subsequently took those Panadeine Forte tablets, which were sourced from excess medication at the aged-care facilities, for a period of time, but he no longer takes that medication.
The injury with the employer
17 The plaintiff commenced employment with the employer in April of 2008. His role at that employment was that of a fitter and machinist.[7]
[7]PCB 12
18 The plaintiff described the circumstances of his injury to his back on 18 March 2009 at paragraph 6 of his affidavit sworn 26 November 2014 in the following terms:
“On 18 March, 2009, I was working for the Defendant [employer] when I had to attach a device called a ‘precision head’ to a milling machine. I estimate that the precision head weighed between approximately 40 – 60 kilograms. There was no mechanical assistance on hand and no overhead crane. Whilst trying to stand on a table and secure the precision head, it began to fall and I took the full weight of it, bending and twisting my spine and suffering immediate pain and injury.”[8]
[8]PCB 12
19 The defendant accepts that the injury to the plaintiff’s lower back occurred in circumstances and in the manner described by the plaintiff and there is no issue between the parties on the causation of the injury to the plaintiff in March of 2009.
Medical treatment for the Plaintiff’s lower back
20 On 18 March 2009, the plaintiff reported the incident to his supervisor and lodged a WorkCover claim. He immediately ceased work and has not returned to work with the employer. On the same day, the plaintiff attended his general practitioner, Dr Zheng Wang.[9]
[9]PCB 12
21 The only report from the plaintiff’s general practitioner, Dr Wang, was dated 16 December 2009.[10] Dr Wang referred the plaintiff for a CT scan which was performed on 23 March 2009. The CT scan is reported as follows:
“Conclusion
No significant lesion identified.
No evidence of disc herniation or canal stenosis. No evidence of nerve root compromise.
Bilateral multilevel moderate facet joint osteoarthritis.”[11]
[10]PCB 19 and 20
[11]PCB 62
22 The plaintiff was then referred by his general practitioner to see the orthopaedic surgeon, Mr Michael Khan. The plaintiff attended on Mr Khan on 24 June 2009 for initial examination.[12] Mr Khan referred the plaintiff for an MRI scan of his lumbar spine. On 3 July 2009, the plaintiff underwent an MRI scan of his lumbar spine. The MRI report appeared at page 63 of the PCB. Mr Khan reported on the MRI scan as follows:
“The MRI scan of his lumbar spine performed at Dandenong Hospital dated 3 July 2009 was reported by the Radiologist to show that he had disc desiccation with degenerative changes at L5/S1 level, with a mild posterior disc bulge. There were degenerative changes affecting the facet joints in [the] lower part of the back and minimal narrowing of the subarticular recess bilaterally at L5/S1 level, but no evidence of neural compression. There were minor degenerative changes present at L4/5 and L3/4 levels.”[13]
[12]PCB 24
[13]PCB 24 and 25
23 Mr Khan has not examined the plaintiff since 12 August 2009.[14]
[14]PCB 25
24 Mr Khan referred the plaintiff to Dr Clayton Thomas, the rehabilitation and pain management physician.
25 On 6 October 2009, the plaintiff was examined by Dr Clayton Thomas.[15] After reviewing the MRI report, Dr Thomas referred the plaintiff to the Victorian Rehabilitation Centre.
[15]PCB 30
26 The plaintiff attended at the Victorian Rehabilitation Centre between 2 March 2010 and 8 April 2010.[16]
[16]PCB 57
27 Dr Thomas reviewed the plaintiff after his attendance at the Victorian Rehabilitation Centre on 27 May 2010. It appears from the documentation in the PCB that that is the last time Dr Thomas examined the plaintiff.
28 In his report dated 25 May 2013, Dr Thomas reported as follows:
“I reviewed an MRI of his lumbar spine dated the 3rd July 2009 and this showed an isolated mildly dislocated degenerate L5/S1 disc with no disc prolapses and no neurological compromise. The discs above L5/S1 looked to be pristine.
…
… The nature of the original injury certainly sounded significant however the examination indicated a non organic component and the MRI was not overly remarkable. There was certainly nothing that could date the imaging result on this specific incident of March 2009.
…
… He reported ongoing lower back pain. He enjoyed the rehabilitation program. We spoke about the fact that return to work as a fitter and turner would be difficult for him. We spoke about the fact that he had capacity to work in another field nonetheless. He was continuing to do the exercises shown [to] him through rehabilitation.
…
I think he does have work capacity from a physical sense. As I have not seen him for over three years, I am not able to give an indication of what his current work capacity is.
For the same reason, I am not able to give an indication as to whether his condition has stabilised or not.
… as per the body of my report it was not my opinion that he had unrestricted physical capacity. I felt that he did have physical limitations. I felt that he would have difficulty performing the heavier physical chores working as a fitter and turner unrestricted.”[17]
[17]PCB 31
29 The plaintiff attended on a physiotherapist, Yasemin Arslan. The first attendance on Ms Arslan was on 15 November 2010 and the last attendance was on 17 January 2011.
30 In her report dated 7 May 2013, Ms Arslan gave the following opinion:
“In my opinion the injury he sustained on the 18/03/2009 would have caused injury to his lumbar spine but not to the extent that he presented with and that there may be some inorganic component.
…
I have not seen Ravindra since the 17/01/2011 so I am not able to comment on his current or future capacity to work as I am not aware of his current functional status.
During the period of time that I saw Ravindra there was no real change in his symptoms and he reported that even Pain Management at Vic Rehab did not help.”[18]
[18]PCB 61
31 There is no evidence that the plaintiff has received any active physical or medical treatment for his low-back injury since the beginning of January 2011. The plaintiff’s evidence is that he takes Panadol Osteo, approximately sixteen tablets per week. The purpose for taking this medication is to moderate his pain levels.
Medical opinions
The Plaintiff’s doctors
32 The medical reports relied upon by the plaintiff in respect of his treating medical practitioners are dated. The most recent of them are over three years’ old.
Dr Zheng Wang, General Practitioner
33 The plaintiff relied upon a report prepared by his general practitioner, Dr Zheng Wang, dated 16 December 2009. At the time of writing his report in 2009, Dr Wang stated the following:
“It is too early to predict what kind of level he could achieve during the rehab. It is also difficult to clear[ly] say [if] is there [is] any permanent impairment or not. [The] Patient’s difficulties are he is unable to stand or sit [in] the same position [for] too long. His body is unable to bend forward at certain angle[s] as it will creat[e] the back pain. Of course he is able to carry some weight ie: 5-10 kg. But When shift[ing] the body with weight, the frequency and distance are in doubt. So, my suggestion is it is better [to] re assess the patient after the rehab program.”[19]
(sic).
[19]PCB 20
34 Dr Wang referred the plaintiff to Mr Khan, and from there the plaintiff came under the care of Dr Clayton Thomas.
35 In the course of this proceeding, the plaintiff was cross-examined about his most recent attendance on a general practitioner. The evidence was that the plaintiff had attended upon Dr Shanmugam, general practitioner, on 8 July 2016. On that occasion, the plaintiff had complaints of a right shoulder injury requiring an x-ray and other medical complaints including wheezing and reflux.
36 In respect of the plaintiff’s lower back, the following evidence was given:
Q: “But you didn’t talk to him about your back?---
A: No, because I didn’t have to. It wasn’t that bad as what---.”[20]
[20]T27, L14-15
37 The plaintiff then went on to give evidence about his view of what the doctors would tell him concerning the taking of medication or having an operation. There is no evidence before the Court that any medical practitioner has suggested that the plaintiff have an operation in respect of his low back.
38 The only evidence from the plaintiff’s general practitioner is the report of 2009. The opinion expressed in that report is far too dated to be of any assistance to the Court in assessing the level of seriousness of the back injury to the plaintiff at this time.
Mr Michael Khan, orthopaedic surgeon
39 Mr Kahn prepared a report dated 30 April 2013. In that report, Mr Khan stated the last time he had examined the plaintiff was on 12 August 2009. Mr Khan’s opinion was as follows:
“As a result of this injury on or about 18 March 2009 or so, he sustained a severe musculo-skeletal and ligamentous injury to [the] lower part of the back with flare-up of pre-existing asymptomatic degenerative arthritis and spondylosis at L5/S1 level. He has developed mild discogenic pain in the lower part of the back, with flare-up of degenerative facet joint arthropathy, which has resulted in referred pain down his legs and calves, the left side being more affected than the right.
He is totally unfit to perform his pre-injury duties. … .”[21]
[21]PCB 25
40 This opinion was given at a time prior to the plaintiff attending on Dr Clayton Thomas or attending at the Victorian Rehabilitation Centre.
41 Mr Khan’s report is based on the examination as far back as 12 August 2009 and prior to the full rehabilitative services prescribed by Dr Clayton Thomas and performed at the Victorian Rehabilitation Centre. For that reason, Mr Khan’s opinion is outdated for the purposes of the determination of this application.
Dr Clayton Thomas, specialist in rehabilitation and pain management
42 Dr Clayton Thomas prepared a report dated 25 May 2013 for the purposes of this application. Dr Thomas had treated the plaintiff and referred him to the Victorian Rehabilitation Centre for pain management. I have previously set out Dr Thomas’ findings and diagnosis in respect of the plaintiff. I note for completeness that Dr Thomas has not seen the plaintiff since 27 May 2010.
Ms Yasemin Arslan, physiotherapist
43 Ms Arslan was the last person to provide active treatment for the plaintiff’s low-back condition. The last attendance was 17 January 2011. I have previously set out in full the opinion of Ms Arslan in these Reasons and will not repeat them here. The fact that the plaintiff has not received any active physiotherapy treatment since 2011 is an indicator that his ongoing difficulties and symptoms are minor.
Dr Joseph Slesenger, specialist occupational physician
44 Dr Slesenger prepared a report dated 13 October 2016 for medico-legal purposes in respect of this application.
45 Dr Slesenger stated his diagnosis for the plaintiff’s lower back as follows:
“· Mechanical injury to the lumbar spine.
· Aggravation of degenerative disease of the lumbar spine.
· Chronic pain disorder.”[22]
[22]PCB 70
46 Dr Slesenger’s opinion was that the plaintiff had a capacity to return to work with the following restrictions:
“· No push, pull, carry or lift over 5 kg.
· No repetitive bending or twisting.
· Sit and stand as required.
· 4 hours a day, 5 days a week.”[23]
[23]PCB 71
47 Dr Slesenger was guarded in terms of the plaintiff’s prognosis and was of the opinion that the plaintiff’s symptoms would continue for the foreseeable future.[24]
[24]PCB 72
Mr Paul D’Urso, neurosurgeon
48 Mr D’Urso prepared two medico-legal reports, dated 5 December 2016 and 18 January 2017, in respect of this application.
49 Mr D’Urso’s opinion was as follows:
“It would appear that Ravindra Paul has aggravated a pre-existing degenerative condition of the lumbar spine. His injury would appear to be of a soft tissue nature. Ravindra has persisting disability as a result of his condition.
…
I would place restriction on Ravindra’s capacity to perform heavy physical work. He should not be required to perform repetitive, bending, twisting or lifting activity. He should not be required to lift from below the knee or above the shoulder or lift weight beyond 10kgs. Ravindra would require the ability to ambulate freely in the workplace.”[25]
[25]PCB 75
50 Mr D’Urso concluded that the 30 hours of delivery driver work performed by the plaintiff was suitable and that they constitute a light duty capacity. In his opinion, Mr D’Urso thought the prognosis was satisfactory and stated that the workplace injury in March of 2009 was an aggravating incident to an underlying degenerative condition of his lumbar spine.[26]
[26]PCB 76
51 The second report from Mr D’Urso confirmed that he was of the opinion that the work incident of 18 March 2009 led to the onset of symptoms for the plaintiff and caused an inability of the plaintiff to perform his pre-injury employment.[27]
[27]PCB 100
Mr Michael Troy, general surgeon and occupational physician
52 The plaintiff relied on a report from Mr Michael Troy dated 5 August 2011. This report is really for the purposes of an impairment assessment under the Act.
53 A summary of Mr Troy’s findings was that the plaintiff suffered from a degenerative disc in the lumbar spine at L5-S1. The plaintiff continued to suffer from that degenerative disc. Mr Troy’s opinion was that the plaintiff’s pain would wax and wane over the future. Mr Troy accepted that the plaintiff’s clinical presentation was consistent with the workplace accident in March of 2009.[28]
[28]PCB 114 and 115
54 Mr Troy’s opinion as expressed in that report is also dated and is nevertheless generally consistent with the other medical reportage in this case.
The Defendant’s doctors
Dr Peter Boys, consultant orthopaedic surgeon
55 The defendant relied upon a report of Dr Boys dated 26 July 2016. Dr Boys’ report is for medico-legal purposes and is obviously not a treating doctor’s report.
56 Dr Boys’ opinion is as follows:
“Mr Paul experiences central degenerative mechanical low back pain. His condition is stable with well preserved functional capacities at this time. No deterioration of this gentleman’s functional capacities would be anticipated in the light of the condition evident.
…
This gentleman requires no other specialist examination.”[29]
[29]DCB 5
57 In relation to the plaintiff’s ongoing symptoms, Dr Boys stated:
“Mr Paul would appear to be experiencing symptoms associated with degenerative change within the facet joints of the lower lumbar spine. He describes a continuity of complaints subsequent to a soft tissue injury to the lower back sustained on 18.03.2009. Investigations in the ensuing period have not shown evidence of discal protrusion or structural derangement and this gentleman does not experience associated radicular symptoms.
This gentleman’s employment therefore has given rise to an aggravation of a pre-existing asymptomatic degenerative condition of the lumbosacral junction with ongoing reported symptoms.”[30]
[30]DCB 6
58 Mr Boys states that the plaintiff does not require any specific treatment other than home exercise and the use of paracetamol-based medication. He stated that the plaintiff had no specific restrictions in respect of his capacity, and noted that the plaintiff continued to play the guitar recreationally.[31]
[31]DCB 6
59 The medical practitioners, both medico-legal and treating practitioners, do not recommend any surgery for the plaintiff’s back. The only treatment recommended in an ongoing fashion is the use of paracetamol. Dr Boys recommends home exercises. I note from the plaintiff’s evidence that he is doing home exercises to maintain his mobility and fitness.
The credit of the Plaintiff
60 I accept that the plaintiff reported the injury to his low back in March of 2009 and attended upon his general practitioner, Dr Wang, that day. I accept that he has not worked as a fitter and turner or mechanic since that day. The majority of the medical opinions are that the plaintiff is unfit for his pre-injury work duties.
61 I accept that the plaintiff has properly reported to his medical practitioners, particularly his treating practitioners, about his symptoms and incapacities. The fact that the treating practitioners have not reported of recent times indicates that the plaintiff has not been attending them for further treatment for his lower back. In fact the plaintiff says that he no longer attends his medical practitioners for symptoms and treatment in respect of his low back.
62 I have had the advantage of seeing the plaintiff give his evidence in the witness box and would describe him as both honest and cheerful in the manner in which he answered questions put to him by the defendant’s counsel.
63 I note that in the report of the physiotherapist, Ms Arslan, that the plaintiff exhibited some inorganic component in his presentation.[32] The plaintiff’s honesty is shown in this regard when he was answering a question about lawn mowing. In that answer, he stated as follows:
“… When I can’t do anything, that means my back is no good. That’s the problem I have and I tell you something, like even doing the lawn. Before doing the lawn my back starts paining. Just thinking of doing the thing. That’s the thing I’m saying. I don’t know [if] it’s psychological or what. That’s the thing I’m saying and that’s the hardest thing for me to do is doing the lawn. After that, it’s very painful.”[33]
[32]PCB 61
[33]T16, L28 – T17, L4
64 This evidence is an example of both the honesty of the plaintiff and some level of psychological or mental reaction to his symptoms. I do not find that the plaintiff is consciously exaggerating his symptoms but that he admits that there is some reticence or reluctance on his part to engage in full physical activity.
65 Another example of the plaintiff’s honesty is when he stated that he had been offered a job by his friend, Mohammed Mustapha, to perform casual fitting and turning work, but that he decided not to do that work, because he was concerned about his back pain. This is an example of where the plaintiff has honestly answered the question but indicated that he had not tried to do that work in the period of time after his rehabilitation at the Victorian Rehabilitation Centre.
66 In conclusion on the plaintiff’s credit, I accept that he is giving a reasonably honest appraisal of his condition.
Consequences of the low-back injury to the Plaintiff
67 The plaintiff relies upon two affidavits sworn on 26 November 2014 and 6 February 2017. He also relies upon affidavits in support from Mohammed Mustapha sworn 16 February 2017, and his wife, Florence Paul, sworn 15 February 2017. I note for completeness there are some inconsistencies between his wife’s affidavit and the plaintiff’s own evidence in respect of his abilities to undertake tasks on a day-to-day basis now. I also note that there is an inconsistency between the plaintiff’s history to doctors about the mowing of lawns and that of Mr Mustapha. I do not see these inconsistencies between the plaintiff’s wife and Mr Mustapha and the plaintiff himself, as any attack on the plaintiff’s credit. Rather, I accept the plaintiff’s evidence about these matters and set aside the conflicting part of the supporting affidavits.
Sleep
68 The plaintiff, in his second affidavit sworn 6 February 2017, states as follows:
“… At times my back pain interferes with my sleep. For some reason the pain seems worse in winter and I have more difficulty sleeping.”[34]
[34]PCB 16
69 The above statement in the plaintiff’s affidavit is the only reference or mention of the consequence of interference to his sleep.
70 I do not accept that the interference with the plaintiff’s sleep is a significant consequence for him.
Pain
71 In his first affidavit sworn 26 November 2014, the plaintiff stated that he had ongoing constant fluctuating back pain. He described the pain as on occasion being severe. He also said that he experience pain into his legs.[35]
[35]PCB 14
72 In his more recent affidavit sworn 6 February 2017, the plaintiff stated that his pain levels fluctuated. He stated that his back never feels normal. He stated that on a bad day, he would rate his strong pain as 7 out of 10.[36]
[36]PCB 15 and 16
73 In his evidence, the plaintiff stated that he had pain-free days when he was performing his tasks as a delivery person for the pharmacy business.[37] A fair reading of the plaintiff’s evidence was that he was able to perform his work tasks as a delivery driver for the pharmacy, attending upon nursing homes and aged-care facilities with his deliveries. He also gave evidence in the hearing that he was performing his music at home, either on his new Yamaha keyboard or his guitar. The plaintiff is clearly someone who can continue to live a relatively normal life including maintaining work and his love of music. This is all done despite the level of pain he describes.
[37]T30
74 The Court is mindful that a stoic applicant who may be prepared to put up with pain and make the best of the situation should not be treated less favourably than some other applicant who may resign themselves to the injury. Whilst I accept the plaintiff displays some level of stoicism and practicality, I do not find that he suffers from pain to his lower back to the extent that it is a significant consequence for him.
Medication
75 The plaintiff’s evidence is that he originally took Panadeine Forte and Panadol Osteo to relieve his pain symptoms. The current medication regime for the plaintiff is set out in his affidavit sworn 6 February 2017 as being sixteen Panadol Osteo tablets a week.[38] Panadol Osteo is an over-the-counter paracetamol-based medication. When asked directly about his frequency of taking the Panadol Osteo, he responded:
“Nearly every day.”[39]
[38]PCB 16
[39]T20
76 I find that the ingestion of a total of sixteen Panadol Osteo tablets per week is at the very low end of medication required for pain amelioration and consequently, is not a significant consequence for the plaintiff.
Ongoing treatment
77 The plaintiff does not have any ongoing treatment from medical practitioners or physiotherapists. The plaintiff agreed that the last time he attended his general practitioner for back symptoms was in 2015. He stated that he had a lot of pain at that time and he went to the general practitioner and “did the scan”.[40] I note that there is no radiological report relating to his visit to the general practitioner in or around 2015.
[40]T26
78 I have previously referred to his last visit to a general practitioner which was for ailments and injuries not related to his back.[41] The main injury at that time appears to have been a right shoulder injury which related to the plaintiff’s guitar playing.
[41]T27
Lack of mobility
79 The plaintiff is able to walk and run on his treadmill.[42] The plaintiff gave evidence that he could lift light weights as part of his training regime. The plaintiff stated that he could drive for an hour or sit and stand for an hour to ninety minutes.[43]
[42]T20
[43]T18
80 I find that the plaintiff’s described capacity for mobility is not indicative of a significant consequence for him due to inability to be mobile. I accept the plaintiff has some restriction of bending and twisting but that restriction does not amount to a significant consequence for the plaintiff.
Activities of daily living
81 The plaintiff, in his evidence, identified that the use of the Whipper Snipper is his most challenging task in the garden. He identified that use as being the biggest or most significant impairment on his ability to garden.[44]
[44]T19
82 I note however in his history to Dr Slesenger that in relation to his activities of daily living, the plaintiff stated as follows:
“SOCIAL & DOMESTIC HISTORY
Mr Paul lives with his wife and one child aged 18 in a single-storey house with a garden. He advised that his wife and daughter perform the majority of the domestic tasks including shopping, cooking, cleaning, laundry, vacuuming and mopping duties. He is able to do some light shopping. He advised that he can mow the lawn, but has difficulty using a whipper snipper. He advised that he is unable to make the beds.”[45]
[45]PCB 67
83 I also note that in his history to Dr Boys, the plaintiff stated as follows:
“Effects of Activities of Daily Living
This gentleman lives with his wife and 18 year old daughter. Mr Paul relates no restrictions on day to day activities at home. He prefers to avoid activities such as vacuum cleaning. He tends to sit down and perform gardening activities. Mr Paul is able to mow his lawn. He does utilise a whipper snipper but finds this uncomfortable and does so for short periods. Mr Paul is unrestricted with driving a motor vehicle locally.”[46]
[46]DCB 4
84 I find that the plaintiff has retained a significant capacity to perform the activities of daily living and that the minor reduction in his ability to mow the lawn and or use the Whipper Snipper do not constitute a significant consequence for him.
Sport and music
85 In his affidavit dated 26 November 2014, the plaintiff stated he had given up soccer, fishing and the gym.[47] The plaintiff’s evidence was that he still did weights and exercises, as well as using the treadmill to walk and jog.[48]
[47]PCB 14
[48]T20
86 In his evidence, the plaintiff stated he injured his left knee whilst playing indoor soccer in Australia in 2004-2005.[49] In his affidavit dated 6 February 2017, the plaintiff stated as follows:
“In approximately January 2005, I hurt my left knee playing soccer. I saw a surgeon in Cranbourne and had keyhole surgery and made what I considered to be a good recovery. I got back to playing soccer. I am not sure at my age now whether I would still be playing competition soccer, but I enjoyed keeping active and having a kick. Because of my back injury, I have not been as active at home and I have not been able to continue soccer at any level and I have not been able to be as active with my daughter as I would like”.[50]
[49]T11
[50]PCB 18
87 The plaintiff clearly acknowledges his days of playing soccer in competitions are over but relates it to his age rather than the injury to his low back. I do not find that the cessation of soccer is a significant consequence to the plaintiff based on the evidence in this hearing.
88 The plaintiff is a genuine music enthusiast. He gave evidence of injuring his right shoulder as a result of playing AC/DC music on his guitar. The affidavits set out how the plaintiff is precluded from taking part in the church band. The plaintiff gave evidence that he has recently purchased a new Yamaha keyboard to play his music at home. On occasions, friends come to his home and play music[51].
[51]T22
89 In re-examination, the plaintiff was asked about the limitations on him playing music. His evidence was:
Q:“When you say you take a rest, are you resting the back, or are you just resting because you’re tired, or what’s the rest for when you play music?---
A:No, it’s just the back because you can’t be sitting down there that long. Sometimes it’s, like, you lose interest and then you go out and it’s not the back. Sometimes it is back.
Q:Sorry, sometimes it is the back---
A:Yes.
Q:How often is that the case, that it’s the back that makes you stop playing?---
A:Not really too much.
Q:Now, the playing, I think you said 99.9 per cent – and I appreciate that’s just making a point – but the playing on your own, what’s your enjoyment like playing on your own compared to what it was like playing with others in the band and practising with those others?---
A:You see when you play with [the] band you learn lot, you learn from other people and your music gets more precise. Playing on your own is not same thing as playing with the band.
Q:All right. So if you can answer this then – please try. Do you enjoy it as much playing on your own, or not?---
A:Not really.
Q:Not really?---
A:Yes.”[52]
[52]T32-33
90 The plaintiff, when giving evidence about his current involvement in playing music, was truly engaged, enthusiastic and “lit up” with his involvement in music. I find that the plaintiff draws great enjoyment and pleasure from his playing of music and that any limit on his ability to continue with the church band is not a significant consequence for him.
Work
91 The plaintiff claimed that he was unable to return to his pre-injury employment as a fitter and turner and machinist. The general medical opinions are that the plaintiff can no longer perform his pre-injury duties of being a fitter and turner. Nevertheless, the plaintiff had been offered employment as a casual fitter and turner by his friend, Mr Mustapha. The plaintiff decided that he would not take up that opportunity and instead, rely upon his existing employment of a delivery driver for a pharmacy. That was a reasonable decision for the plaintiff to make. However, it does leave unanswered the question of whether or not the plaintiff could in fact have been able to resume his usual employment as a fitter and turner or machinist.
92 Mr Carson, on behalf of the plaintiff, urged the Court to take into account that the loss of the plaintiff’s normal and usual trade of being a fitter and turner is a very significant consequence for the plaintiff. I have had the advantage of seeing the plaintiff give evidence in this case and it is my finding that the plaintiff enjoys his current employment as a delivery driver, combined with its capacity to give him more time and access to perform or practice his music. It was clear from the plaintiff’s evidence that music was his first love and passion and the fact that he can now, with his split shift employment as a delivery driver, engage in pursuing his musical interests, that he prefers that work. I do not accept that the plaintiff has been so affected by the loss of his previous employment as a fitter and turner as being a significant consequence for him.
93 The defendant relied upon the issue of the non-organic presentation by the plaintiff in respect of his description of pain symptoms. In particular, the defendant relied upon a statement made in Dr Thomas’ report,[53] and the report of the physiotherapist.[54] The defendant relies on the evidence given by the plaintiff himself in respect of his anticipation of back pain before he mows the lawn.[55] I do not accept that the plaintiff is consciously exaggerating his symptoms. I accept the plaintiff’s complaints at face value and do not accept that, as a combination or individually, the consequences of the low-back injury to him amount to the statutory test.
[53]PCB 31
[54]PCB 61
[55]T16
Conclusion
94 After a consideration of all of the evidence and taking into account all the consequences suffered by the plaintiff as a result of his low-back injury, I am not satisfied that such consequences, when judged by a comparison with other cases in the range of possible impairments, can be fairly described as being “more than significant or marked and as being at least very considerable”. The plaintiff has not satisfied the statutory test for “serious injury” for pain and suffering damages.
95 I dismiss the application.
96 I will hear the parties on costs.
- - -
0
1
0