Pavic v Decca Tiling Pty Ltd
[2016] VCC 135
•1 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-06392
| MICHAEL PAVIC | Plaintiff |
| v | |
| DECCA TILING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2016, 11 February 2016, 18 February 2016 | |
DATE OF JUDGMENT: | 1 March 2016 | |
CASE MAY BE CITED AS: | Pavic v Decca Tiling Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 135 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury application – Pain and Suffering – Economic loss – Whether physical injury relied upon resulted in or materially contributed to serious injury consequences
Legislation Cited: Accident Compensation Act 1985 s134AB
Cases Cited:Grech v Orica Australia Pty Ltd [2006] VSCA 172;
Judgment: Leave granted in respect of economic loss and pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Ms C A Kusiak | Zaparas Lawyers |
| For the Defendant | Ms M Tsikaris | Russell Kennedy |
HIS HONOUR:
1 This is an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) by the Plaintiff for leave to commence proceedings for damages in respect of the economic loss consequences and pain and suffering consequences of injuries suffered by him during the course of his employment with the Defendant as a tiler in the period 6 October 2008 to 2 May 2009.
2 The injuries relied upon by the Plaintiff are:
(i)lumbar spine injury at L4/5 and L5/S1 and the aggravation of degenerative changes thereto with referred bilateral leg and foot pain; and
(ii)psychiatric injury including Chronic Adjustment Disorder with mixed anxiety, depressed mood and major depressive disorder.
3 The Plaintiff was born in 1952 in Croatia and is now aged sixty-three. He completed the equivalent of Year 7 in Croatia and left school at the age of fourteen. His family migrated to Australia when he was fourteen years old and upon arrival here he did not attend school. He did, however, attend night school in order to learn to read and write English.
4 At the age of fifteen, the Plaintiff commenced employment in a clothing factory as a factory hand and worked there for three months. The Plaintiff then commenced employment as a tiler, learning the trade on the job. He has not completed any formal training as a tiler and has been engaged in that occupation ever since.
5 The Plaintiff is married with three children.
6 The Plaintiff commenced formal employment with the Defendant on 6 October 2008. On 2 May 2009 the Plaintiff commenced work at a site in Geelong, and at approximately 11.00 a.m., after moving a number of wheelbarrows loaded with tiles, the Plaintiff experienced pain in his lower back and legs and left work.
7 On 3 May 2009 the Plaintiff presented at the Sunshine Hospital with a range of complaints including raised temperature, vomiting and lower back pain. He was discharged from the hospital on 4 May 2009 and readmitted that day. He was then discharged on 5 May 2009, but following continuing back pain he was readmitted and was again discharged on 6 May 2009.
8 The discharge summary notes[1] record the principal diagnosis as gastritis and back pain. The notes also record that the patient presented with back pain and epigastric pain and that the Plaintiff had a tender lumbar spine region. The discharge notes record that a CT scan of the Plaintiff’s lumbar spine ought to be arranged if he experienced worsening back pain.
[1]Defendant’s Court Book (“DCB”) pages 9 and 10
9 The Plaintiff has not worked since 2 May 2009.
10 A worker’s injury claim form was submitted on 25 May 2009 describing the injury as lower back and knees. The Defendant accepted that the Plaintiff suffered a compensable injury in the course of his employment in an employer injury claim report dated 28 May 2009. The Plaintiff has been in receipt of weekly payments and medical and like expenses since that date.
11 It is not in issue in the proceeding that the Plaintiff has no current work capacity and that he has suffered a greater than 40 per cent loss to his pre-injury gross income. It is also not in issue in the proceeding that the injuries relied upon by the Plaintiff in support of the application are permanent.
12 Furthermore, it is accepted by the parties that in the event that I am satisfied that the physical injury relied upon by the Plaintiff in support of the application is a serious injury for the purposes of the Act, it is not necessary for me to consider whether the psychiatric injury is severe for the purposes of the Act.
13 However, it is the case for the Defendant that the Plaintiff cannot satisfy the court that the physical injuries relied upon by the Plaintiff resulted in or materially contributed to the serious injury consequences.[2] That is not to say that the injury must be the sole cause of the consequences, and it is clear that a consequence may have a multiplicity of causes.[3]
[2]See Grech v Orica Australia Pty Ltd [2006] VSCA 172
[3]Ibid per Ashley JA at [58]
14 In the proceeding the Plaintiff filed three affidavits, dated 20 June 2014, 12 May 2015 and 28 January 2016. In addition, the Plaintiff attended the hearing of the matter, gave evidence, and was cross-examined. Otherwise the parties relied upon the medical and vocational material tendered by them.
15 Following the Plaintiff’s admissions to the Sunshine Hospital between 3 May 2009 and 6 May 2009, and consistent with the discharge summary notes, a CT scan was conducted of his lumbar spine on 22 June 2009. That scan revealed:
“Conclusion
1. A mild to moderate central canal stenosis is at L1‑2, L2‑3, L3‑4 and L4‑5 levels with a minor central canal stenosis noted at L5‑S1 level.
2. No further significant central canal or foraminal stenosis is seen.
3. No pars defect is noted.
4. The degree of nerve root impingement can be further assessed with MRI examination of the lumbar spine.”[4]
[4]Plaintiff’s Court Book (“PCB”) page 90
16 A left lower pole renal calculus was also noted.
17 Following the findings of this CT scan, an MRI scan was conducted of the Plaintiff’s lumbar spine on 10 September 2009 with the following finding:
“Asymmetric generalised disc bulge and annular fissure is demonstrated at L4‑5 resulting in minimal subarticular stenosis and minor bilateral bony foraminal stenosis. Generalised disc bulge results in minor bilateral bony foraminal stenosis at L5‑S1. The facet joints, conus and abdominal aorta are within normal limits.
Conclusion
Disc degeneration at the thoracolumbar junction and lower lumbar spine without focal disc protrusion. There is minimal subarticular stenosis at L4‑5, worse on the left than the right and minor bilateral bony foraminal stenosis at L4‑5 and L5‑S1 without neural compromise.”[5]
[5]PCB 91
18 A further CT scan conducted on 25 August 2010 revealed:
“The sacroiliac joints appear normal and there is no evidence of sacroiliitis.
The lumbosacral disc is normal and there is no evidence of a canal stenosis at this level.”[6]
[6]PCB 92
19 On 9 April 2010 the Plaintiff was referred to Mr Bruce Love, an orthopaedic surgeon, by his general practitioner. Following an examination of the Plaintiff, Mr Love concluded:
“My examination of him does not reveal any major abnormality in the lumbar spine, hips or knees but he does have a palpable deformity of the dorsum of each foot.
The x‑rays of his feet show osteophytes at the margins of the tarsometatarsal joint on each foot. An MRI of the lumbar spine reveals significant degenerative change at the L4/5 and L5/S1 level.
This man appears to have a generalised degenerative condition and I have taken the liberty of referring him to Dr Alex Stockman for a rheumatological opinion and further management by medical means.”[7]
[7]PCB 45
20 Dr Stockman, a rheumatologist, saw the Plaintiff on 5 May 2010, and, after taking a history from him and conducting an examination, he concluded that there is “marked limitation in movement of the lumbar spine in all directions”. Dr Stockman reviewed the results of the CT scan and MRI scan conducted in 2009, and concluded:
“Mr Pavic seems to have degenerative condition of the lumbar spine and to a lesser extent the knees and feet. He may have some sort of neuropathy. I would also like to exclude inflammatory back condition, but this seems unlikely at his age.”[8]
[8]PCB 78
21 Dr Stockman examined the Plaintiff on 18 August 2010 and reported:
“Mr Pavic continues to complain of low back pain, pains in the legs and knees. The symptoms fluctuate from day to day but the pain is worse during the night and first thing in the morning with at least half an hour of morning stiffness.”[9]
[9]PCB 80
22 The Plaintiff continued to see Dr Stockman on a regular basis, and on 11 April 2014 Dr Stockman concluded:
“His condition has essentially unchanged when last seen and during the follow up period of almost 4 years. When last seen he was complaining of constant pain in the low lumbar region, which was disturbing his sleep and associated with prolonged morning stiffness. He was complaining of paraesthesia in the feet and pain in both legs, more in the right leg. He stated that his pain was less severe when walking than standing still.
His medications have also remained unchanged since the initial visit, namely Panadeine Forte, four a day and Mobic (an anti-inflammatory medication) 15mg per day. In addition, he was on Endep for sedation and pain control and Coversyl for his hypertension. Examination of his spine at the last visit was also unchanged with global restriction of movement.”[10]
[10]PCB 82
23 Dr Stockman further concluded:
“Michael Pavic has disc degeneration at L4/5 and L5/S1. In addition he has ankylosing spondylitis characterized by nocturnal back pain, prolonged morning stiffness and limitation of movement of the lumbar spine. Furthermore, he has osteoarthritis in both knees.
His back condition is partly related to his work as a ceramic tiler and partly to ankylosing spondylitis, which is an inflammatory condition of the spine of unknown etiology.
His knee condition is largely related to his work.
In my opinion Michael Pavic is unfit for work, for pre-injury employment and unfit for alternate duties. He will need to continue with the treatment outlined above. His prognosis is that his condition is unlikely to change into the foreseeable future.
In summary, Michael Pavic’s back condition has several causes and the degenerative component, which is not extensive on imaging, is likely to be related to his previous job as ceramic tiler.”[11]
[11]PCB 83
24 In a further report dated 3 July 2015 Dr Stockman considered the interrelationship between the Plaintiff’s lumbar disc degeneration and his ankylosing spondylitis, and concluded:
“Michael Pavic has lumbar disc degeneration at L4/5 and L4 S1 and he also has ankylosing spondylitis. It seems that the latter condition, which is longstanding and genetically driven, is inactive because there is no evidence of inflammation in the sacroiliac joints on recent MRI scan. The condition has largely burned itself out and in my opinion most of his back pain is caused by degenerated lumbar discs. Inflammatory markers would be helpful in distinguishing degenerative from inflammatory back pain, however, it is likely that these markers are normal as the [sic] were when performed in 2010 and 2011.”[12]
[12]PCB 85
25 It is the case for the Defendant that ankylosing spondylitis is a congenital inflammatory condition, and not employment-related. In support of this, the Plaintiff was examined at the request of the Defendant by Dr Roy Karna, a rheumatologist, on 7 November 2014. Dr Karna concluded that:
“I am sceptical that he has an active inflammatory spondyloarthropathy ankylosing spondylitis type condition. Regardless of the potential diagnostic uncertainty regarding the presence of an inflammatory spondyloarthropathy condition and for the purposes of the argument if one accepts that he does have a low grade inflammatory axial spondyloarthropathy, this is purely constitutional and unrelated to work.”[13]
[13]DCB 29
26 Dr Karna further concluded:
“[T]he most substantial component of his presentation does not have an organic basis.”[14]
[14]DCB 29
27 And that:
“I believe this worker’s fundamental problem is one of a chronic pain syndrome being psychogenically driven. He has age concordant degenerative changes in his lumbar spine and lower limbs which I do not believe are relevant to his presentation and looking at his situation in totality I am sceptical that he has an underlying inflammatory ankylosing spondylitis type condition.”[15]
[15]DCB 29
28 Finally, the Plaintiff was examined by Mr Kevin Siu, a neurosurgeon, on behalf of the Defendant, on 22 July 2015. Mr Siu had the results of the CT scan and MRI scans of the Plaintiff, together with the report of Dr Stockman dated 11 April 2014. Mr Siu did not have the report of Dr Karna dated 7 November 2014. Mr Siu concluded:
“Having obtained a history from Mr Pavic and conducted a physical neurological examination, I am of the opinion that this worker has non-specific back pain following a period of exertion. However, with a history of a high temperature at the time when he had the symptoms of back pain and the medical reports of Dr Stockman (11 April 2014), and indeed Dr Pavlovic (February 2011), the worker’s condition was more in the domain of a rheumatologist. The diagnosis offered by the other specialists was that of ankylosing spondylitis. Although there were degenerative changes in the lumbar spine, but with the presence of sacroiliitis, knee osteoarthritis, I believe the bulk of the symptoms are from an inflammatory condition of the spine.
Dr Stockman considered that the degenerative condition of the lumbar spine, not extensive on imaging, was likely to be related to his job as a tiler, but Dr Stockman certainly acknowledged the back condition could arise from several causes of which ankylosing spondylitis, an inflammatory condition, is likely to be responsible.
I therefore consider that this worker’s condition is best assessed by a rheumatologist of your choice, as I think there are no neurosurgical problems.”[16]
[16]DCB 21
29 In his report of 11 April 2014, Dr Stockman did not state that ankylosing spondylitis was likely to be responsible for the Plaintiff’s back condition. Furthermore, as I have observed, Mr Siu was not provided with the report of Dr Karna in which he stated he was sceptical that the Plaintiff had an active ankylosing spondylitis type condition. In his report dated 26 November 2015, Dr Karna further considered whether or not the Plaintiff had ankylosing spondylitis, and reviewed the Plaintiff’s most recent MRI scan. He concluded that the Plaintiff may have an incomplete version of the disease, and that:
“His recent MRI scan shows no evidence of sacroiliac joint bone oedema which is seen if the ankylosing spondylitis condition is active ... On that basis I agree with Dr Alex Stockman’s contention that his condition has ‘burnt itself out’.”[17]
[17]DCB 37
30 In my opinion the evidence establishes that the Plaintiff suffered from ankylosing spondylitis but that condition has “burnt itself out”.
31 The Plaintiff was examined by Mr Thomas Kossmann, an orthopaedic surgeon, on 2 May 2009. Following the examination, Mr Kossmann concluded:
“Mr Pavic’s back pain appeared to be an acute injury upon degenerative lumbar spine disease as demonstrated on the MRI dated 10 September 2009. Mr Pavic’s injury is as a result of the continual hefty lifting in his work as a ceramic tiler and this is superimposed upon the pre-existing lumbar spine and sacroiliac disease.”[18]
[18]PCB 120
32 The Plaintiff was also examined by Mr David Brownbill, a consultant neurosurgeon, on 30 September 2014, and Mr Brownbill concluded that:
“Examination on the 30th September 2014 has shown restriction of thoraco lumbar spinal movements. There was no objective neurological abnormality of the lower limbs. There were no signs of radiculopathy.
Radiological investigations had demonstrated longstanding multiple level lumbar spine degenerative changes (which on the information provided had been asymptomatic).”[19]
[19]PCB 125
33 Mr Brownbill further concluded:
“From a neurosurgical point of view I consider that on probability he has sustained aggravation of lumbar spine degenerative changes giving rise to pain but without neurological damage.”[20]
[20]PCB 126
34 I do not accept that the consequences relied on by the Plaintiff, which are not in issue in the proceeding, were not caused by the aggravation of the degenerative condition of the Plaintiff’s lumber spine. The evidence discloses that any ankylosing spondylitis had burnt itself out.
35 I am satisfied that the Plaintiff aggravated his degenerative lumbar spine condition during the course of his employment with the Defendant, and that aggravation has materially contributed to the serious injury consequences in this case. In arriving at this conclusion I have not had regard to any psychological consequences of the Plaintiff’s lumber spine injury. [21] The cumulative effect of the evidence of the Plaintiff, Dr Stockman, Mr Kossmann and Mr Brownbill is that the pain and suffering consequences relied upon by the Plaintiff are a result of the aggravation to his degenerative condition of his lumbar spine during the course of his employment.
[21]See : Section 134AB (38) (h) of the Act
36 For the reasons set out above, I am satisfied:
(i) That the Plaintiff has established that by reason of the impairment of function arising by reason of the injury to his lumbar spine he has sustained a loss of earning capacity which meets the statutory threshold fixed by the Act;
(ii) That the consequences of that loss of capacity are fairly described as being more than significant or marked, and as being at least considerable.
37 It follows that the Plaintiff is entitled to the orders sought in this application, namely leave to commence a proceeding claiming damages for both pain and suffering consequences and the loss of earning capacity consequences of the injury sustained by him to his lumbar spine.
38 In the circumstances, it is not necessary for me to consider whether the statutory thresholds are met in respect of the psychological injury relied upon by the Plaintiff.
39 I will hear the parties as to the precise form of orders sought in the matter and also upon the issue of costs.
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