Penno v Goulburn Valley Region Water Corporation
[2009] VCC 632
•26 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-02637
| LARRY THOMAS PENNO | Plaintiff |
| v | |
| GOULBURN VALLEY REGION WATER CORPORATION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 6 and 7 May 2009 |
| DATE OF JUDGMENT: | 26 May 2009 |
| CASE MAY BE CITED AS: | Penno v Goulburn Valley Region Water Corporation |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0632 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird and | Ryan Carlisle Thomas |
| Mr K Mueller | ||
| For the Defendant | Mr P Scanlon QC and | Herbert Geer |
| Mr I Gourlay | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant, in particular on 10 July 2003 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The impairment of body function relied upon in this case is the low back.
5 The plaintiff relied upon two affidavits and he was cross-examined. In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(vii) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
6 The plaintiff is aged fifty-five, having been born on 16 October 1953 in Tasmania. He left school at the age of fourteen at the end of Year 7. The plaintiff initially worked in the bush and in sawmills and mines. He also did foundry work and other heavy labouring jobs.
7 In 1972, the plaintiff moved to New Zealand, where he worked as a welder fabricating steel. In 1980, he moved to Mooroopna and worked for a number of employers until commencing work with the defendant in 1989.
8 The plaintiff’s work included repair and maintenance of plant and equipment, pit construction, pipe construction, digging manholes, and preparing and maintaining water mains and sewerage.
9 During his time with the defendant prior to the said date, the plaintiff suffered injury on a number of occasions.
10 On 18 April 1996, the plaintiff tore his shoulder muscle using a jackhammer. On 16 February 1996, he injured his lower back using a crowbar, and on 9 February 1998, he again injured his lower back, this time using a jackhammer. On 29 March 1999, the plaintiff again injured his low back using a crowbar, and on 29 September 1999, he injured his low back whilst digging. On 3 April 2001, he suffered an electric shock whilst moving guiderails into place. Following each of these injuries he had a couple of days off work and then returned to normal duties.
11 In cross-examination, the plaintiff agreed that since 1996 his back pain fluctuated and never left him. In 1996, his pain was central to high in his back and the pain later disappeared. From February 1998 to March 1999, the plaintiff agreed that he had problems with his low back but he could not remember whether he had problems from then until 2002.
12 On 26 May 2002, the plaintiff suffered a low back injury when he slipped off a footrest climbing onto a backhoe. After this incident he had a longer time off work, perhaps for a couple of weeks, until he returned to work on alternate duties.
13 The plaintiff resumed normal duties on 30 September 2002. He returned to the same old, heavy job that involving lifting gatic lids which ranged in weight from an average of thirty kilograms to two hundred kilograms. He lifted these manually with others. He was working mainly on sewer pipe pump station maintenance.
14 On the said date the plaintiff was required to clear a blocked sewer and had to manually attempt to break up concrete and sandstone with the use of a crowbar. Whilst performing that task, he felt pain in his back (“the incident”).
15 The following day the plaintiff could not move. He was taken by ambulance to the Goulburn Valley Hospital. He was prescribed painkillers and was referred to his general practitioner, Dr Leffler.
16 The plaintiff was off work for about three months and then returned to modified duties in mainly sewer pump maintenance, working with another person until the end of 2007. There was a ten kilogram lifting restriction on his duties.
17 Dr Leffler continued to treat the plaintiff conservatively. He prescribed medication and referred the plaintiff to Jim Marx for physiotherapy and manipulation. The plaintiff was also referred to Dr Todhunter who carried out nerve bocks and radiofrequency denervation. The plaintiff agreed he had significant improvement after facet joint blocks. The plaintiff has had traction on two occasions, most recently performed by Jim Marx in October 2008.
18 In cross examination the plaintiff disagreed that whilst on modified duties he was able to do the normal activities around the house. The plaintiff could not recall telling Dr Leffler that his condition was improving and was “not too bad” during the first half of 2004, late 2004 and on 3 October 2005. Whilst on modified duties the plaintiff was off work for nine days in 2005 because of back pain.
19 The plaintiff ceased work on or about 23 November 2007 after the defendant could no longer provide him with light duties. During that year he had complained to his doctor of back pain but he wanted to keep working. The plaintiff’s employment was then terminated on 28 January 2008. He received weekly payments until October 2008.
20 In cross-examination, the plaintiff agreed that in February 2008 his back was good and that he was trying to get work if given an opportunity.
21 On 16 October 2008, with the assistance of CRS, following his participation in the government-sponsored WISE program, the plaintiff obtained employment with Williams Construction, an earthmoving company in Shepparton.
22 Dr Leffler advised the plaintiff to try this job, but to keep up treatment and adhere to the restrictions that had previously been set as to light duties. Those restrictions included no heavy lifting, no repetitive bending or twisting work, no working in confined spaces, no digging, and no working with a jackhammer, crowbar or pick.
23 Having driven from Mooroopna to work each morning, the plaintiff presently travels for three quarters of an hour to work everyday from Shepparton to Cobram with his fellow workers. Every now and then he drives back to the depot. He works for about six hours on site. He is now earning more than he did with the defendant but he disagreed he was working a lot harder.
24 The plaintiff deposed that his job mainly involved the operation of an excavator and a backhoe. Both the backhoe and the excavator have been assessed by CRS as to their suitability, given his injury. The backhoe has fully suspended and adjustable seating with lumbar support, fully adjustable steering, and an electronic clutch. The excavator has fully suspended seating and fully adjustable controls. Those machines enable the plaintiff to carry out his work with some level of comfort and support by significantly reducing vibrations, jarring and jolting.
25 The plaintiff also has to operate a tanker and a tipper. The heaviest task in his current job is having to refill the water tanker using a hose.
26 The plaintiff needs to take his time working. He has to take regular rest breaks, getting out of the machine to stretch and walk. At the end of each working day he usually sits in a recliner chair at home to ease the pain and discomfort in his back. By the end of each week the plaintiff begins to struggle at work, but he prefers to continue working.
27 In cross-examination, the plaintiff disagreed that his present job was substantially heavier than his previous one and that he was lifting more than ten or twenty kilograms. He agreed he had to check the mechanical systems of the excavators and check and change the grease and oil. He could bend and squat and but sometimes he had trouble squatting.
28 In the plaintiff’s opinion, there was no comparison at all between his pre and post incident work. He now does not work in confined spaces, nor does he lift one hundred to two hundred kilogram concrete lids.
29 The plaintiff agreed the current plant operating work does not cause him any problem. He said he was happy with the work because he was happy working again
30 The plaintiff explained he works because he has done nothing but work all his life and he would rather be working than sitting at home doing nothing, becoming bored, depressed and getting stressed out and bad-tempered, which affected his family. He still has a mortgage and a family to support.
31 The plaintiff continues to see Dr Leffler monthly. He does daily exercises, such as stretching, knee lifts and walking. He continues to take Fenac, an anti-inflammatory, every morning for his back, and Paracetamol most days for pain. He also takes Diazepam for low-back pain spasms on a ‘needs basis’.
32 The plaintiff continues to suffer daily pain and stiffness in his low-back, but the severity of his pain varies. The pain is made worse in cold weather, when he has to stand for a long time, and also after a day’s work. He continues to have some referred pain and numbness into his right leg. He has also experienced further episodes of severe back spasm where his pain is so bad he cannot move. He gets very moody, stressed and tense at times because of his pain and discomfort.
33 The plaintiff’s pain is now about five out of ten. In the nine months prior to the incident he did not have any back pain. Since the incident he has suffered spasm when he gets “a power of pain”. He stiffens up and cannot move. These spasms probably happen once or twice a month if he pushes himself too hard and then the pain goes to a level of about ten when he can hardly put up with it.
34 The plaintiff was cross-examined about the medication he has taken and is presently taking. He thought that he might have taken painkillers in 1998 and that he took painkillers after the various other incidents.
35 The plaintiff confirmed Dr Leffler prescribed Fenac, an anti-inflammatory, and that he had earlier prescribed Nurofen. Having cross-examined the plaintiff to the effect that the last prescription was some time ago, counsel for the defendant noted that Dr Venes last prescribed Fenac fifty milligrams on 29 September 2008.
36 Prior to the incident, the plaintiff was interested in speedway sport. He acted as a volunteer assistant helping on the pit gate and attending to fire- extinguishing activities and other activities. He used to work on the gate on Saturday afternoon between 3.30 pm and 10.00 pm. He used to open the heavy gauged steel gates to let the cars in and out of the track.
37 In cross-examination, the plaintiff admitted that he still attends the speedway on a frequent basis and he enjoys the companionship of his friends. He agreed there is nothing physically stopping him attending the speedway. He no longer helps out in the pit area because his friends do not race anymore and he just watches the races with them and has a chat and a beer. He is not a member anymore. He can no longer handle the heavy gates.
38 Since he was a very young child the plaintiff enjoyed fishing. Prior to the incident, he used to fish from a boat and go river fishing. Since then he has been very restricted because he has trouble launching his boat, a three-metre aluminium tinny, by himself. He has not used his boat for three to four years.
39 In cross-examination, the plaintiff admitted there was no reason he could not go fishing in his boat with somebody else who could do the heavy work. He could go fishing on the riverbank. He agreed that he was able to go fishing in his boat when he was not working before October 2008, but then said he had not had the boat out for a couple of years and that he had not gone fishing because his mate was unavailable. He could put his tinny on a little trailer to transport it but said he did not have a four-wheel drive and he had nowhere to store it because it would get stolen in his driveway.
40 The plaintiff agreed that there was nothing stopping him from fishing if he was able to travel to and from Cobram every day and work there full time.
41 Whilst the plaintiff agreed there was nothing physically wrong with him that was stopping him from fishing if he had someone to help him, he said there was still the weight factor. He then said he did not think he could sit for that long in a boat.
42 Prior to the said date the plaintiff enjoyed going mainly bush and river camping. He deposed that his back is such that he cannot really set up camp anymore, and he has not gone camping by himself for quite a long time.
43 The plaintiff hardly does any camping now. He has bought a “pop top” caravan and he and his family usually go to caravan parks whereas they previously camped in the bush.
44 The plaintiff supposed it would be clearly within his capacity to go and set up camp in the bush and that that would be easier than driving an excavator all day.
45 The plaintiff agreed he could put up a tent, cook the meals, light a fire and fish on the riverbank of the Murray whilst camping but he could not cut wood. He would have problems sleeping in the bush but he could sleep on a stretcher. Whilst he agreed he could set up camp, he could not do so for thirty others digging holes, putting up toilets and shower units and getting water and firewood as he used to.
46 The plaintiff started to play golf for exercise after he hurt his back in 2002. He was just a “hacker”, his handicap was thirty six and he played at Merrigum, a bush club. He played golf with the same three friends every week, mainly on a Sunday, playing for five hours. He probably played three times a month.
47 The plaintiff has tried to play golf once since the incident and played about three holes, after which he could not continue playing as he ached and he felt “buggered”. He “just cannot hack it anymore”. He cannot “work the clubs properly” and cannot drag the buggy around.
48 Prior to the incident the plaintiff had done gardening, pruning, cutting and a lot of maintenance. He has tried some gardening, mowing and a bit of pruning. His wife or son does most of it now because he cannot handle it. He has taken rubbish to the tip. He has tried to mow the lawn but no longer does so because sometimes it just gets too hard pushing the lawnmower.
49 Since the incident the plaintiff has tried to do some work and maintenance around the house but he has had difficulty. He has tried to hang a lattice and do a little bit of minor maintenance, like repairing tiles and fences after the kids have pulled the pickets off. He has a shed fitted with tools where he potters around and makes things.
50 In cross examination, the plaintiff agreed that it would definitely be out of the question for him to be walking around carrying two slabs of beer with his back condition. Having said he would definitely not lift such a weight, in re examination, the plaintiff said that in the footage shown, it was the first time he had lifted two slabs and that when he picked up the slabs at the liquor shop, they were at the top of a stack at about waist height.
The Plaintiff’s Medical Evidence
51 The plaintiff has been a patient at the Archer Street Clinic in Shepparton since 6 January 1981 (“the Clinic”). He first complained of back pain on 1 February 1998. He also attended for back pain later in February 1998, on 22 September 1998, 23 March 1999 and 30 September 1999.
52 On 27 May 2002, the plaintiff attended the Clinic complaining of suffering injury to his back at work. He was put off work until 16 June 2002 and did modified and alternative duties until 30 September 2002, when he resumed normal duties.
53 Dr Leffler first saw the plaintiff in relation to the incident on 11 July 2003 when he sent the plaintiff for a CT scan. Dr Leffler certified the plaintiff unfit for work between the said date and 1 September 2003 when the plaintiff returned to alternative duties. On 2 January 2004, the plaintiff commenced modified duties.
54 As of January 2008, Dr Leffler considered the plaintiff’s back problem would be permanent. He did not see the plaintiff returning to his pre injury employment. He noted the plaintiff had a complicating ongoing problem with his blood pressure and a previous myocardial infarct.
55 Dr Leffler considered that the plaintiff’s back had remained pretty much the same over the past few years. It fluctuated from day to day and week to week. He noted the plaintiff had not required a prescription for pain-relief since July 2003.
56 Dr Leffler reported in April 2009 that the plaintiff was coping alright and that he liked his current job more than his previous employment. He noted that the plaintiff was suffering from time to time with back pain. The plaintiff was continually aware of what he could and could not do at work. There were types of work he could not do. The plant operation work in Dr Leffler’s view did not seem to cause the plaintiff any problems. He noted that the plaintiff was happy with his progress and with his work situation. Dr Leffler reported that the plaintiff was not taking anything specific for his back at the moment. Dr Leffler thought the plaintiff may need physiotherapy in the future but nothing was planned.
57 In Dr Leffler’s view, the plaintiff’s back may well deteriorate faster than the average person, but hopefully not before retirement.
58 Mr Richard Horton, orthopaedic surgeon, saw the plaintiff on referral from Dr Leffler in 2003. He noted that the plaintiff’s pain was tolerable as of October 2003 and that it had improved quite substantially since he was referred. Mr Horton thought the plaintiff should be on anti-inflammatories at least intermittently, and that he may need to modify the way he performed certain tasks. Mr Horton did not think there was any surgical treatment which was going to be of any value to the plaintiff.
59 Mr Khan, orthopaedic surgeon, examined the plaintiff on 10 May 2005 on behalf of QBE Insurance. At that time the plaintiff’s pain was across the lower parts of his back, more on the left of the midline than the right. It was constant and throbbing all the time. Mr Khan noted that someone had given the plaintiff a walking stick after he injured himself on 13 April 2005, when he could not get out of bed on a fishing holiday.
60 On examination, Mr Khan found there was restriction of movement of the plaintiff’s lumbar spine. Bilateral straight leg raising was to eighty degrees. Mr Khan could not detect tendon reflexes easily, as they were diminished.
61 In Mr Khan’s opinion, the plaintiff had multilevel disc degeneration in the lower part of the lumbar spine which had flared-up as a result of the incident. The plaintiff had also developed discogenic pain in his back at L2-3 and L3-4 which was consistent with the incident. He considered the episode on holidays in April 2005 was a continuation of the plaintiff’s previous back injury.
62 Mr Khan thought the plaintiff had had a flare-up of pre existing facet joint arthropathy and disc degeneration in the low back, as well as flare-up of pre- existing disc prolapses at L2-3 and L3-4. He noted that the plaintiff had been getting episodes of intermittent locking and spasms ever since the incident, most probably due to facet joint irritability.
63 Mr Khan considered the plaintiff’s prognosis was guarded. He thought, with his back, the plaintiff was not likely to return to any heavy labouring type of duties. He considered the plaintiff could be rehabilitated and assigned to an alternative lighter type of work, avoiding excessive bending, twisting, and turning of his spine, lifting unduly heavy weights, or working with his back bent for long periods.
64 Dr Todhunter, pain medicine specialist, first saw the plaintiff on 17 June 2005. At that time the plaintiff described basically mechanical low back pain with some occasional right leg pain which Dr Todhunter thought may be either referred or sciatic in nature.
65 Dr Todhunter noted that the CT scan showed multilevel disc degeneration but no significant neurological compromise. He considered the plaintiff had a degree of facet joint arthropathy at the lower lumbar levels.
66 In these circumstances, he thought the plaintiff would benefit from diagnostic medial branch nerve blocks to assess whether that reduced his pain or not with a view to proceed to a radiofrequency facet joint denervation if the plaintiff got significant relief from the blocks.
67 On 18 October 2005, joint blocks at L5-S1 on the right side were carried out. Following this procedure the plaintiff noted a significant reduction in his pain at L5-S1.
68 On 24 January 2006, Dr Todhunter undertook a radiofrequency facet joint denervation on the right side at L4 to S1 levels.
69 On review on 20 April 2006, Dr Todhunter thought it was evident that there had been a significant reduction in the plaintiff’s pain since the January procedure. He noted the question at that time was whether the plaintiff could safely increase his work capacity, bearing in mind that some of the work was quite heavy. He thought it would be reasonable for the plaintiff to try and increase his activity at work. He noted the fact the plaintiff had had a significant reduction in pain from these procedures indicated that the disc was not a predominant source of pain, and apart from normal measures and avoiding heavy lifting, then it was safe to increase the plaintiff’s work level.
70 On 13 June 2007, Dr Todhunter undertook a facet joint denervation on the right side at L4 to S1 levels, and on 20 February 2008, he undertook this procedure on the left side.
71 When Dr Todhunter last examined the plaintiff on 8 August 2008 he found no specific signs of any neurological compromise. The plaintiff had a reduced range of back motion globally and diffuse tenderness across his lower back. The plaintiff indicated his pain was to the right lumbosacral region and radiated to the right thigh.
72 Dr Todhunter’s initial diagnosis was that of mechanical low back pain due to the combination of discogenic back pain and facet joint pain. He thought the right thigh pain was referred pain, and that there was no historical or clinical evidence of any neuropathic leg pain. In his view, the plaintiff’s response to facet joint denervations indicated that there was a significant component of facet joint pain.
73 Dr Todhunter thought the plaintiff would have ongoing intermittent low back pain which would vary in intensity. He explained that there was no overall cure for the plaintiff’s pain, but that the plaintiff did get substantial relief with denervations. He noted that the effects of these procedures wore off after twelve to eighteen months, and the nerves regenerated. Hence, in Dr Todhunter’s view, it was reasonable to repeat the procedure if the plaintiff’s pain increased.
74 Dr Todhunter considered the plaintiff’s work was a significant contributing factor, and his ongoing pain was directly related to the incident and preceding events. In his opinion, it was safe for the plaintiff to undertake physical activity, including work. He considered the plaintiff should, however, avoid heavy lifting below knee height of objects weighing more than ten kilograms, as that increased the intradiscal pressure. Dr Todhunter thought that the plaintiff would be better physically, mentally and emotionally in the longer term if he could maintain physical activity, and particularly if he could find paid work.
75 Mr Kendall Francis, surgeon, examined the plaintiff on 29 January 2007 for the purposes of an AMA assessment.
76 On examination, Mr Kendall Francis found there was a normal contour of the thoraco-lumbar spine, but there was slight spasm and a somewhat precautionary tightening when the plaintiff’s paraspinal musculature was examined. There was tenderness and restriction of movement. Straight leg raising was possible to seventy degrees bilaterally. Ankle reflexes were impaired on both sides. Sensation was mildly impaired laterally over the right thigh and calf and over the dorsum of the plaintiff’s foot, but his soles were hypersensitive.
77 In Mr Kendall Francis’ view the plaintiff’s spinal condition was one of degeneration consistent with his age and presenting with recurrent episodes of back pain with associated referred lower limb pain.
78 The plaintiff was examined by Mr Mander, orthopaedic surgeon, on 15 October 2007 on behalf of Vision Super.
79 At that stage the plaintiff complained of constant backache at a level of five out of ten, made worse by prolonged standing or sitting for more than thirty minutes. The plaintiff told Mr Mander that he went fishing occasionally, but he had had to give up boat fishing, as he could not handle the boat. He had given up golf, and pottered around the shed at the weekend.
80 On examination, Mr Mander noted that the plaintiff stood with a very flat lumbar spine, with marked bilateral spasm with tenderness in these muscles and a slight concavity scoliosis to the left. Movement was very much restricted by increasing spasm and pain, particularly on forward flexion, lateral flexion, left and right. The plaintiff was unable to extend his spine due to immediate pain.
81 Straight leg raising was greatly limited to twenty degrees on the right and forty degrees on the left with pain referred up the back. There was no evidence of any motor sensory loss.
82 In Mr Mander’s view, the plaintiff suffered recurrent low back pain and right sided sciatica on occasions as a result of his work injuries. Mr Mander diagnosed multilevel lumbar disc injuries, particularly with marked degenerative changes at the lumbosacral spine. He suggested in the future the plaintiff would benefit from a three-month hydrotherapy program, but he was not in favour of repeated denervation.
83 Mr Mander considered the plaintiff unable to work in any manual activities for a minimum of six months. He thought the plaintiff should stay off work for six months after his employment was terminated, and that it was very likely the plaintiff would not be able to return to any form of manual work involving bending, lifting and using heavy work tools as would be required in his current employment.
84 Mr Mander noted there were no inconsistencies on examination except to say that the plaintiff throughout attempted to minimise his problem. Mr Mander noted examination findings confirmed considerable problems in the lumbar spine.
85 Mr Mander considered the plaintiff unfit for all aspects of his former employment, and thought that he was not fit for suitable employment unless there was a substantial improvement over the period of time following ceasing work. He was not prepared to state that the plaintiff’s disability rendered him totally and permanently disabled in accordance with the trust deed, saying that he would need to wait approximately six months to see how the plaintiff was after finishing work.
86 Mr Schofield, orthopaedic surgeon, examined the plaintiff on 20 February 2009. Mr Schofield noted on examination there was low lumbar tenderness. Spinal flexion was to fifty degrees, extension and other movements appeared normal. Straight leg raising on the left was to fifty degrees, and sixty degrees on the right. There was an absence of both ankle jerks, and some slight weakness of dorsiflexion of the great left toe. There were non-dermatomal sensory changes affecting both legs.
87 In Mr Schofield’s opinion, the plaintiff’s continuing back pain was due to desiccation of the lower three lumbar discs with the most severe changes affecting the lumbosacral disc, where there was evidence of instability, with gas seen in the erect extension view. There was also gas seen at L4-5 with a similar appearance. These changes, in Mr Schofield’s view, indicated chronic changes which had been progressive over many years, during which the plaintiff had suffered acute attacks of pain consistent with small prolapses occurring.
88 Mr Schofield noted the current examination revealed evidence of radiculopathy with absent ankle jerks and slight weakness of dorsiflexion. In his view it was therefore likely the plaintiff was developing slow progressive spinal canal stenosis which may eventually lead to surgery.
89 Mr Schofield diagnosed chronic multilevel disc degeneration affecting the lower three levels, resulting in radiculopathy. In his view, the plaintiff’s employment, and in particular the incident, had caused aggravation of pre existing degenerative changes.
90 Mr Schofield thought the plaintiff’s physical impairment was permanent, and that the plaintiff did not have fitness for pre injury duties as a maintenance worker/labourer. He considered the plaintiff’s current position as a backhoe operator was unlikely to remain a long term option.
Investigations
91 A CT scan of the plaintiff’s lumbar spine was carried out on 30 May 2002. It showed small posterior disc bulges at multiple levels, with posterior osteophytes at L5-S1 causing slight impression of the anterior surface of the thecal sac.
92 A CT scan of the lumbar spine carried out on 17 July 2003 showed multilevel small disc lesions to the right at L2-3 and L4-5, and to the left at L3-4.
93 A CT scan of the lumbar spine taken on 16 May 2005 showed persistent lumbar spondylitic change with minor right paracentral disc bulge at L2-3. There were posterior disc bulges at L4-5 and L5-S1. The latter had developed since the previous study, but, as it just encroached on the anterior aspect of the sac, it was noted it was unlikely to be of clinical significance.
94 A CT scan of the lumbar spine was carried out on 3 March 2006. It showed a minor L2-3 disc bulge. There was central L4-5 disc protrusion which appeared unaltered since the previous examination. Changes at the L5-S1 level also appeared unaltered. It was noted there was a stable appearance since the previous examination.
The Defendant’s Medical Evidence
95 The plaintiff was examined by Mr David Macintosh, consultant orthopaedic surgeon, on 22 October 2003. The plaintiff told Mr Macintosh about his back problems prior to the said date.
96 On examination, the plaintiff complained of intermittent back pain which was mainly aggravated by sitting for any extended periods. He needed to rise after approximately one hour.
97 Mr Macintosh noted that the plaintiff walked and sat comfortably and moved around the examination couch without difficulty. There was a significant restriction of movement of the lumbar spine but no tenderness. Straight leg raising was normal. There was no neurological deficit in the lower limbs, and there was no abnormal pain behaviour.
98 In Mr Macintosh’s view, the plaintiff continued to experience some mild symptoms following an acute soft tissue injury to the lumbar spine. He considered that the plaintiff’s employment was a significant contributing factor, and did result in an incapacity for employment. Mr Macintosh considered the plaintiff remained unfit to undertake heavy work, or work involving repetitive bending and lifting.
99 Mr Peter Scott, orthopaedic surgeon, examined the plaintiff on 25 October 2007.
100 The plaintiff complained to him of chronic low back pain present most of the time in a mild form, but worse with prolonged standing or sitting, repetitive bending or twisting or turning or heavy lifting or working in confined spaces.
101 Mr Scott noted that on examination the plaintiff walked without a limp. Movements of the lumbosacral spine were flexion to forty degrees, right and left lateral flexion and rotation to twenty degrees and extension to ten degrees, and pain was experienced at the extremes. The plaintiff complained of tenderness over most of the length of the lumbosacral spine to the left and right of the midline posteriorly. Straight leg raising on both sides was to forty- five degrees and was associated with backache but there was no evidence of any sciatic nerve root involvement. Apart from the absence of both ankle reflexes, there was no other left or right lower limb abnormality of motor power, tone, sensation, reflex activity or circulation.
102 In Mr Scott’s view, the plaintiff was not fit for his pre accident employment nor was the plaintiff fit for the job he was currently undertaking as a sewer pump maintenance worker which Mr Scott noted required considerable physicality and required the plaintiff to drive a considerable distance.
103 In Mr Scott’s opinion, the plaintiff’s condition was one of chronic low back pain, work initiated, with multilevel disc degenerative processes in the lumbosacral spine, with occasional intermittent lumbosacral nerve root irritation.
104 Mr Scott considered the plaintiff’s employment had been a significant contributing factor to the development of the plaintiff’s symptoms in the absence of any past history of a similar problem.
105 Mr Scott thought the plaintiff was fit for very light work only and he considered the plaintiff was unfit for his present job as a sewer pump maintenance worker. He considered there was a permanent impairment as a result of the injury sustained, and that at no stage in the future would the plaintiff be fit for labouring duties.
106 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff on 19 May 2008.
107 On examination, the plaintiff indicated generalised pain in the lower lumbar spine. There was flexion to forty degrees and extension to ten degrees. Bilateral straight leg raising was to eighty degrees. Sensation and power in both lower limbs was normal. The left ankle jerk reflex was absent, but both knee jerks on the right ankle reflex were present and normal.
108 In Mr Jones’ view, the plaintiff was suffering from multilevel disc degeneration, manifesting as back stiffness and pain. The prognosis was one of varying degrees of backache and stiffness long term, with a slow deterioration with increasing years. Mr Jones considered the basis of the plaintiff’s back condition was essentially degenerative in etiology, although changes at L4-5, and to a lesser extent the L5-S1 level, suggested that injuries suffered during the course of his work may be a contributing factor to some of the changes shown on x-ray.
109 Mr Jones thought the plaintiff’s employment had been a significant but not major contributing factor to his lower back condition. He thought the plaintiff did not have a capacity for unrestricted employment in his former job of heavy labouring work, such restriction being permanent.
110 Mr Jones considered the plaintiff would be capable of undertaking the work he was performing at the time of his termination on 21 January 2008. He thought the plaintiff was not capable of work requiring frequent bending, heavy lifting, or the use of jackhammers, crowbars or sledgehammers.
111 Mr Michael Polke, orthopaedic surgeon, examined the plaintiff on 9 December 2008.
112 On examination, the plaintiff was tender in the low back and there was some muscle guarding. There was a slight decrease of lumbar movement, with flexion to seventy degrees, extension, lateral flexion and rotation to thirty degrees. The straight leg raising was eighty degrees bilaterally, and the sciatic stretch test was negative. Both ankle reflexes were absent. Axial loading produced the plaintiff’s low back pain (Waddell’s test was positive).
113 In Mr Polke’s view, the plaintiff suffered from aggravation of his pre existing degenerative changes of his lumbar spine. His prognosis was only fair, as recurrence of symptoms in the future was likely.
114 Mr Polke thought there would have been an aggravation of symptoms due to the plaintiff’s heavy work over the years and the particular incidents documented, and that his employment with the defendant had been a significant contributing factor to his injury.
115 Mr Polke considered present conservative treatment was appropriate, although in his view, ongoing physiotherapy was no longer necessary, and he thought the plaintiff should undertake home-based core exercises and walk regularly. He noted that the injuries had affected, to some extent, the plaintiff’s enjoyment of life, although he could do most tasks. He was independent in activities of daily living, and he could drive and work.
116 Mr Polke considered that some impairment had been due to degenerative changes that developed over the years, and was also due to some aggravation at work.
117 Mr Polke thought the plaintiff did not have the capacity for labouring which was part of his pre injury employment duties, and that this incapacity was likely to continue indefinitely.
118 Mr Polke considered the plaintiff should avoid heavy lifting work, labouring work that included manual digging and other tasks that involved repeated bending and lifting. He thought the plaintiff was fit for his current employment operating earthmoving machinery and that his impairment for heavy labouring jobs was permanent.
Summary of Archer Street Clinical Notes
11 July 2003 - Complaint of the incident. 14 July 2003 - Has been better but still some pain, less spasm. 18 July 2003 - A lot of stiffness and back pain 31 July 2003 - Continues to have left and right sciatica, gradually
improving.27 August 2003 - Has still got back pain but it is a bit better. 5 September 2003 - Wants to do something outside supervising in 4-
wheel drive.19 September 2003 - Has been well with a bit of pain. Otherwise is
happy, is progressing well.9 October 2003 - No sciatica or restricted movement. 6 November 2003 - No joint pain or stiffness. Restricted movement and
back pain.20 November 2003
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Long talk about what he could and could not do. Back pain, no restricted movement, sciatica or stiffness.
19 December 2003 - Has been good with work. 29 January 2004 - Has been so so with some time without pain. Can’t
overdo it because he gets pain in the back.25 February 2004 - No mention of back pain. 27 February 2004 - Back trouble a lot of the time. Is happy with work. 26 March 2004 - No joint pain but restricted movement. 23 April 2004 - If keeps occupied very little pain. If sits for 20
minutes some ache.21 May 2004 - Has been good with new job. 16 July 2004
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Well otherwise apart from a fall and back a bit sorer. No restricted movement, sciatica or back pain.
10 September 2004 - Has been pretty good and a bit more different jobs. 7 October 2004 - Has been good and not too much pain. Seems to
be happier than before.5 November 2004 - A bit of a twinge today but otherwise going along
OK.3 December 2004 - Has been OK, a bit of pain at time with twinge.
Walking seems to make better.30 December 2004 - Coping with modified duties. 2 March 2005 - Has been OK and just some pain in the morning on
waking.24 March 2005 - Not bad. Had a bit of pain after long weekend. 18 April 2005 - Fishing entry. 22 April 2005 - Back is a bit better. 29 April 2005 - Has been a bit better. 12 May 2005 - Back is giving problems. 10 June 2005 - Has been much better and needs encouragement
that will ever get more better.21 July 2005 - Now has some pain free days and overall on top of
the pain.18 August 2005 - Has been well and needs certificate. 15 September 2005 - Has now been pretty good. 3 October 2005 - Has been much better with less pain in the groin. 7 November 2005 - Getting pain from time to time. 4 January 2006 - Has been on holidays and back is good now. 26 April 2006 - No sciatica. No back pain. 24 May 2006 - Has been well and a bit of pain up in the sides. 21 June 2006 - Back is OK after pain management. 19 July 2006 - Back is much better after pain management. 4 December 2006 - Back no trouble at the moment. 29 December 2006 - Has been well and on a bit of a holiday. 24 January 2007 - Gets a bit stiff from time to time. Is on holidays. He
caught a few fish.26 February 2007 - Has been well and needs work agreement. 29 March 2007 - Has got an odd twinge of pain from time to time. 21 June 2007 - Not really coping. Maybe going to lose his job. 16 August 2007 - Getting depressed about the whole thing 12 September 2007 - Has been ok-back pain 11 & 16 October 2007 - Very sore back 22 October 2007 - Bit better over past week and a little bit more freer 29 October 2007 - Better but not completely fixed 7 November 2007 - Back to work and much better 27 November 2007 - Has been ok and not too much pain at all 2 January 2008 - Mowed lawn and sore two days later
Investigations
119 A CT scan of the lumbar spine was carried out on 6 October 1999. It showed a small posterocentral L4-L5 disc bulge.
Video Surveillance
120 The defendant tendered video surveillance taken on 7 and 8 April 2009.
121 On 7 April 2009, the plaintiff was shown arriving at his workplace to commence work at 6.30 am. Later that day he was shown driving to First Choice Liquor in Shepparton. He agreed there were trolleys available if he wanted to carry slabs of beer.
122 The plaintiff was shown carrying two slabs from the shop. He said he was struggling a bit carrying the slabs but he agreed that he looked like he was walking normally. He then said it was the first time that he had carried two slabs. The plaintiff was then shown going to a hardware shop.
123 On 8 April 2009, the plaintiff was shown arriving at work at 6.22 am. He then went to a property at Campbell Street, Cobram where he commenced working at 7.21 am. The plaintiff was shown working until 8.38 am. The film did not cover that period in its entirety.
124 The plaintiff agreed he was shown carrying what might be a laser box weighing about five to six kilograms. He then climbed up on an excavator and worked briefly on it. He was shown to bend and kneel to look under the bonnet to check the oil and belts.
125 The plaintiff disagreed that he was moving freely when performing these tasks. He agreed he bent as far as he needed to to access the motor of the excavator. He agreed that this work was tougher than playing golf but it was not tough all the time.
126 The plaintiff was then shown getting onto the front of a tanker and cleaning the window in a sweeping motion using his right hand and holding onto the vehicle with his left. Having got down from the tanker, he was shown walking across the worksite, which he disagreed was an uneven surface.
127 The plaintiff was then shown driving a tanker for about two minutes.
128 The plaintiff was then shown involved in pegging activities setting up a string line. On a number of occasions over about two to three minutes he was shown fully and quickly bending. On one occasion he bent for a longer time putting the strings on the pegs.
129 Half an hour later the plaintiff was shown bending again on a number of occasions and at one time he squatted. For the last three minutes of the film the plaintiff was working in the excavator.
130 In cross-examination, the plaintiff agreed that he had to do a variety of other tasks besides sitting on the machinery. The plaintiff disagreed he was shown with full, unrestricted movement, and said he was restricted and wearing a back brace which he wore for manual work.
131 The plaintiff did not agree with the suggestion that he had not had to change in his position in his chair whilst in court.
Findings
132 In these proceedings it is not disputed that the plaintiff suffered a compensable injury on or about the said date.
133 Whilst there may have been no change in the plaintiff’s pathology shown on CT scan after the incident, it is the impairment not the injury with which I am concerned. I accept the consensus of medical opinion that there has been an aggravation of the plaintiff’s pre existing lumbar degenerative condition as a result of the incident.
134 Essentially the primary issue is whether the aggravation resulting from the incident is serious and whether the present consequences meet the statutory test.
135 In this case, where there is a pre existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2003 incident is serious and permanent.
136 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
137 In both Angelatos v Museum of Victoria [1999] 3 VR 157, at 162-163 and at 168, and in RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, per Chernov JA at para 40, the Court of Appeal accepted that the principles in Petkovski v Galletti (supra) applied equally to serious injury applications under the Act.
138 In accordance with the principles in Grech v Orica Australia Pty Ltd and Anor (2006) 14 VR 602, provided the plaintiff establishes that the subject compensable injury in 2003 materially contributes to his impairment and its consequences and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.
139 Whichever approach is followed, the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation from the 2003 incident is permanent at the time of the hearing in its effects on the lower spine and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak (supra).
140 The impairment to the plaintiff’s spine must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, as at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
141 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441: see in particular Chernov JA at paragraph 29.
142 In addition to being “serious” the impairment must be permanent, in that it is likely to last into the foreseeable future.
143 Looking at the plaintiff’s condition before the incident it is apparent that he had ongoing problems with his back as a result of his manual labour since the late 1990s. However, prior to the said date he required little time off work and was working full time on unrestricted duties. In the last nine months before the incident he attended his general practitioner five times and made no complaint of back pain nor was he receiving any treatment on the said date.
144 In these circumstances, I accept that as at the said date, the plaintiff’s back condition was stable and of no real concern to him.
145 Since the incident, after three months off work initially, save for about two weeks off work due to back pain in 2005, the plaintiff has worked full time on what he has described as modified, lighter duties until his job was no longer available at the end of 2007. He has worked full time with his current employer as a plant operator since October 2008 and has missed no time off work.
146 With this ability to work full time, it was submitted by counsel for the defendant that the plaintiff’s application should fail.
147 Reliance in this regard was placed on the decision of Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, where Chernov JA observed that it would ordinarily be difficult to conclude that the pain and suffering consequences were serious in circumstances where it is accepted that a plaintiff is physically capable of alternative employment unless there was some other evidence that showed he experienced significant pain or he otherwise suffered significantly from the injury.
148 Whilst I accept that each case must be looked at on its facts and that the observations of Chernov JA in Sumbul (supra) should not be treated as a general proposition that the ability to engage in full time work precludes a finding of serious injury, such observations should be given due weight.
149 In my view, the plaintiff’s work history since the incident and the type of work he has engaged in, is of relevance when considering this issue.
150 Looking first at the plaintiff’s duties with the defendant after the said date. The plaintiff described his work as lighter than his pre incident work having the assistance of another employee and also a lifting restriction of ten kilograms in his sewer maintenance work.
151 It appears however on the histories given to various doctors during this period of modified duties, that the plaintiff’s duties may have been more onerous than he described. As of April 2006 Dr Todhunter thought it would be reasonable for the plaintiff to try and increase his activity at work, “bearing in mind that some of the work was quite heavy, involving lifting etc. “
152 When Mr Scott examined the plaintiff in October 2007 he noted the plaintiff’s job required considerable physicality and required the plaintiff to drive a considerable distance. Mr Mander who also saw the plaintiff in October 2007 described the plaintiff’s job as manual work involving bending, lifting, and using heavy work tools.
153 Whether or not the modified duties were as onerous as these histories suggest, the plaintiff was coping fairly well with his duties according to those treating him in that period.
154 Whilst the plaintiff could not recall telling Dr Leffler that he was coping with these duties and that his back was not too bad at various times from 2004 to 2007, Dr Leffler’s notes suggest this was the case, save for two attendances in October 2007, after which the plaintiff’s condition was noted to have settled.
155 Further, as Dr Leffler noted in his January 2008 report, he had not prescribed pain-relief for the plaintiff since 2003. The plaintiff agreed that he had told Dr Leffler earlier this year that he liked his present job more than the work he did for the defendant. His work as a plant operator did not cause him any problems. The plaintiff agreed that he was happy with his work and progress.
156 As Dr Todhunter reported and the plaintiff agreed, the plaintiff experienced significant improvement in his condition following the facet joint procedures. As the plaintiff admitted, in early 2008 he was keen to get back to work.
157 Looking then at the nature of the plaintiff’s present duties with his present employer Williams Construction.
158 The plaintiff’s most recent affidavit left me with the impression that his current job is relatively static, involving the operation of machinery specially tailored for his back condition. Further, he deposed that performing this type of work he had to take regular rest breaks, getting off the machinery to stretch.
159 Albeit a snapshot of his work activities, the work the plaintiff was shown performing on the video cannot be described as light. The film showed the plaintiff performing work that was of a significantly different nature to the work he described in his affidavit
160 As the plaintiff admitted in cross-examination, “he does go out into the system and he has to do other stuff”. He agreed there was a lot more to his job than operating the back hoe and excavator.
161 Clearly Mr Mander’s pessimistic view in October 2007 that the plaintiff would not be able to return to any forms of manual work involving bending, lifting and using heavy work tools has not proven to be the case.
162 Presently the plaintiff has a very long work day, getting up at 5.30 am to drive to the depot. He then works a full day and drives home.
163 When shown on the film on 8 April 2009, the plaintiff had arrived at the Cobram work site at about 7.30 am. He was shown engaged in a range of work tasks, bending on numerous occasions, often quickly with no apparent restriction. On one occasion whist pegging he remained bent for a longer period. He was shown squatting and climbing up and down from machinery in a normal fashion.
164 The plaintiff agreed there was a lot of bending shown on the film but said that it that it was not repetitive.
165 I accept that the film showed the plaintiff had a full and comprehensive range of movement in the lumbar spine and an ability to engage in relatively heavy work.
166 I do not accept that this is a case of stoicism where the plaintiff has continued working in significant pain because he has to support his family.
167 The video footage at work is relevant not only to the plaintiff’s physical capacity but also as to his credit given the difference between his affidavit evidence in this regard and what he was actually shown doing.
168 Further, the plaintiff’s evidence as to the slabs of beer and his subsequent explanation caused me concern as to the reliability of his evidence generally. In cross examination prior to the film of the plaintiff at the liquor shop being shown, the plaintiff was firm in his denial of an ability to carry two slabs – having agreed on three occasions that “it was definitely out of the question.”
169 When shown doing exactly that, the plaintiff suddenly remembered having picked up the slabs from the top of a stack at waist height and also said that it was the first time he had lifted two slabs.
170 Whilst it was in relation to a relatively minor issue, this evidence together with the plaintiff’s evidence as to his work activities suggests an attempt by him play down the extent of his true capacity and makes his evidence as to the level of his pain and disability less reliable.
171 The plaintiff is not presently undergoing any significant medical treatment. Dr Leffler just “checks him over” and does not actually give him any treatment. The plaintiff last had physiotherapy late last year, however there is no evidence from his physiotherapist, Jim Marx, beyond his treatment of the plaintiff in 2003.
172 The plaintiff’s medication regime is somewhat unclear. Whilst he said he takes Fenac daily, and it appears that it was last prescribed for him by Dr Leffler in September 2008, in his most recent report of April 2009, Dr Leffler having noted that the plaintiff was happy with his progress and work situation, mentioned that the plaintiff is not taking anything specific for his back at the moment. In January 2008, Dr Leffler also had noted that the plaintiff had not required a script for pain-relief since July 2003.
173 When treating pain medicine specialist, Dr Todhunter, last saw the plaintiff in August 2008, he thought it was safe for the plaintiff to undertake physical activity, including work. He was of the opinion that the plaintiff’s pain was coming from the facet joint and not to any extent from other structures, such as intervertebral discs, and that there had been significant improvement after the facet joint denervation.
174 Further, whilst the plaintiff deposed as to significant restriction in, and the cessation of various activities following the incident, it became apparent after cross-examination that the plaintiff can still do most of the activities he enjoyed prior to the incident.
175 The plaintiff may no longer work on the gate at the speedway but he still attends regularly, enjoying the company of his friends who are now too old to drive themselves.
176 The plaintiff is still capable of going out fishing in his boat if he has his son or a mate to help him. He can fish from the riverbank. It seems the main impediment to the plaintiff going out in his boat is the availability of a mate to go with him, not his back condition. He admitted he could transport the boat himself if he had a trailer.
177 The plaintiff can still perform most of the tasks involved in camping. Whilst he may have difficulty setting up a large site for thirty people, he can still set up a camp and put up a tent, cook the meals, light a fire and fish from the riverbank.
178 As the plaintiff agreed in cross-examination, camping, fishing and playing golf was easier than working on an excavator. Whilst he might be restricted a bit in his hobbies, the plaintiff agreed they had not been taken away completely
179 Overall, whilst I accept that the plaintiff has some back pain and limitation arising from the incident, the consequences of his back impairment are not serious. He can still engage in relatively heavy work on a full time basis, he continues to participate in a number of hobbies, save for golf which was not a major passion, where he enjoys social interaction with others. He has had significant benefit from Dr Todhunter’s procedures in the past and his present level of treatment is minimal.
180 Taking into account all the evidence, I am not satisfied that any impairment resulting from the incident is “serious” or permanent.
181 Accordingly, I dismiss the plaintiff’s application for leave to bring proceedings for pain and suffering.
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182 He stated he was doing essentially his pre incident job but with the help of another worker and with ten kilogram lifting restrictions.
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