Perkins v TAC
[2011] VCC 1471
•22 September 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT LATROBE VALLEY
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-02430
| MALCOLM PERKINS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 7 and 8 September 2011 |
| DATE OF JUDGMENT: | 22 September 2011 |
| CASE MAY BE CITED AS: | Perkins v TAC & Anor |
| CI | [2011] VCC 1471 |
REASONS FOR JUDGMENT
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Catchwords: Catchwords: TRANSPORT ACCIDENT –Transport Accident Act 1986,
Section 93 – serious injury – impairment to the lumbar spine.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with | Maurice Blackburn Cashman |
| Mr J Goldberg | Gippsland Pty Ltd | |
| For the Defendant | Mr P Elliot QC with | Hall & Wilcox |
| Mr J Batten | ||
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident (“the accident”) which occurred on 18 October 2003 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to subparagraph (a) relied upon by the plaintiff is the lumbar spine.
4 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
6 The plaintiff relied on three affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
7 The plaintiff is presently aged forty two, having been born on 22 January 1969 in Yallourn. He was educated to Year 11 and then worked in a tile factory before starting his trade as a bricklayer.
8 At the age of eighteen, the plaintiff had about three months off work as a result of low back pain, but he returned to bricklaying in which he worked from 1987 to 2000.
9 In cross examination, the plaintiff described suffering from “brickies back” before the accident. After a couple of days off work, on his return, his back would be a little bit stiff but after a days work it would be back to normal. It was more discomfort than pain. When aged eighteen it made him go off work, but not later.
10 From 1987-1990, the plaintiff held down various second jobs in labouring and bricklaying work. He also worked in a shoe factory
11 In 2000 the plaintiff worked as a plant hand at a timber mill. The following year he worked as a contract cleaner at the Yallourn Golf Club.
12 In 2002, the plaintiff carried out traffic control duties and roller operating for M G Webster & Co and the following year, he did some delivery driving for Tip Top.
13 In cross examination, the plaintiff was taken to Mr Hartley’s vocational assessment in October 2005 which set out the plaintiff’s work history.
14 The plaintiff confirmed he had never worked full time as a brick layer. He had probably worked for family and friends on houses, barbecues, fences, carports, letterboxes as Mr Hartley described but he did not often get paid for that work. When it was put to the plaintiff he was not running his own business and having contracts the plaintiff said “God, no.”
15 The plaintiff had no physical problem with the odds and ends of brick laying on many occasions and his back did not restrict him doing this sort of work before the said date.
16 In cross examination, the plaintiff said he left the Tip Top job because they were pushing him pretty hard. They were ringing him too often and he needed a break. He was just tired with fatigue every night, doing the same thing.
17 The plaintiff did not have any physical problems driving with Tip Top. There might have been a little niggle – he did not know – but it did not interfere with his work.
18 The plaintiff was cross examined about an entry in Dr Thompson’s notes on 30 September 2002 relating to a medical examination for a job with Sunnycrust. It was noted that the plaintiff then weighed 106 kilograms and smoked thirty cigarettes a day and his blood pressure was 160/90.
19 The plaintiff could not recall that Dr Thompson discussing the plaintiff’s lifestyle with him, advising him to get his blood pressure checked or to lose weight.
20 In the two years prior to the said date, the plaintiff’s income had increased substantially and he intended to keep working in similar jobs on a permanent basis.
21 The plaintiff commenced employment with Winslow Constructors Pty Ltd (“Winslow”) on 7 October 2003 as a labourer.
22 In re-examination, the plaintiff confirmed his job involved a lot of walking and measuring and he worked ten to twelve hours a day sometimes. He had no physical problems with that work before the said date and there was no reason why he could not have finished the three month contract.
23 A payslip from Winslow for the pay period 15 October 2003 to 21 October 2003 set out gross pay of $1,579 for that week.
24 The plaintiff suffered injury on the said date when the roller he was driving in a training course with Winslow fell off a soft embankment to the ground below, throwing the plaintiff around inside the cabin (“the accident”). In examination in chief, the plaintiff described how he “got smashed around” in the roller when it went down a thirty foot embankment.
25 A photograph of bruising to the plaintiff’s lower back taken in the week after the accident was tendered.
26 Following the accident, the plaintiff was immediately aware of lacerations to the back of his head and buttock and extensive bruising to his left thigh.
27 The plaintiff was taken by ambulance to Latrobe Valley Hospital (“LVH”), where he was treated and remained for two days. In the hours and then days following the accident, the plaintiff began to experience quite severe low back pain, which radiated through to his legs.
28 After discharge from LVH, the plaintiff needed assistance with matters of personal hygiene and he stayed at his sister’s house for a couple of weeks, as he was virtually unable to take care of himself.
29 The plaintiff attended various different doctors at the Moe Medical Centre at this time, and he did not have a regular general practitioner.
30 Within about four weeks after the accident, the plaintiff was back at work on light duties, including driving a roller.
31 In March 2004, the plaintiff started seeing Dr Fontaine at Tanjil Place Medical Centre in Moe.
32 The plaintiff’s hours of work varied but he never returned to full time work. He generally worked about two days a week, four hours a day; after he had initially tried to work more hours but felt he would not be able to cope due to increased low back and leg pain.
33 On his return to work, the plaintiff also suffered from considerable stress and anxiety and was the subject of a fair amount of criticism by his workmates who felt he was being carried and not performing his share of the work. The plaintiff was subject to verbal abuse on many occasions and became quite depressed and began to ruminate about the incident and what might have happened to him.
34 In cross examination, the plaintiff confirmed his difficulty coping with his duties on his return to work in February 2004. He was not getting much better and he started getting stressed about why that was the case.
35 In October 2004, the plaintiff’s hours were reduced to two days of four hours and then his hours gradually increased a little bit. Light duties involved using a shove and rake, and he did not cope well. When his employment was terminated, the plaintiff was ”not coping at all well really.”
36 Dr Fontaine referred the plaintiff to a psychologist, Mr Lawler, whom the plaintiff first saw in April 2004. Mr Lawler saw the plaintiff on four occasions. Dr Fontaine prescribed Avanza for the plaintiff’s depression.
37 The plaintiff also attended hydrotherapy and physiotherapy twice weekly. However, despite the passage of time and treatment, his low back and leg pain was not improving.
38 The plaintiff made a WorkCover claim in respect of time he was having off work and the claim was accepted. The OH & S officer filled out the plaintiff’s claim form on his behalf. The plaintiff told him that after the accident, he was pretty much sore from the waist down.
39 The plaintiff was advised by letter dated 15 November 2004, that compensation payments were to be terminated the following month. He was informed by letter dated 16 December 2004 that he would be sacked effective that day.
40 In his first affidavit sworn in February 2007, the plaintiff deposed that he continued to suffer back and leg pain. His legs sometimes seized up and he felt a sensation of pain flooding down his back into his coccyx. He experienced that type of pain if he exerted himself when trying to mow the lawn. If he aggravated his pain, he had to stop what he was doing and rest.
41 The plaintiff had been unable to afford physiotherapy or the fees to go to the local pool for some time and felt his health had deteriorated as a result. He had put on weight but was then exercising and walking to lose weight.
42 The plaintiff had trouble driving for an extended period of time. He previously enjoyed trail bike riding but could not pursue that hobby. However, on rare occasions, when he got on the bike, ”just to get it out of his system”, he suffered increased low back and leg pain when riding and afterwards. He just wanted to remember what it was like on the bike. He felt depressed he could not get on the bike as he previously did.
43 The plaintiff also previously enjoyed going bush in a four wheel drive, but after the accident, the motion involved meant he had great difficulty pursuing that pastime. He also enjoyed fishing. It upset and depressed him that he could not do either activity.
44 After the accident, the plaintiff was then self sufficient and could cope with household chores, as long as he did them at his own pace. He was then going walking each morning for thirty to forty minutes.
45 The plaintiff was still anxious and upset about his pain and predicament but he learnt relaxation and breathing techniques to control feelings of anxiety and depression.
46 The plaintiff’s social life was reduced and he made conscious efforts to stay in touch with friends and family. He lost contact with many friends as he had not been able to be as actively involved in sports and activities as before and that upset him.
47 The plaintiff’s payments of compensation were eventually ceased effective from September 2005.
48 The plaintiff’s next job was at Yallourn Golf Club in mid 2006 as a contract cleaner three days a week, two hours a day. His duties involved just a bit of mopping, vacuuming and sweeping bench tops. The plaintiff felt “it was not bad, like it could have been worse really.” He definitely could not have coped with that work full time.
49 The cleaning work increased to about ten or twelve hours per week when the Club underwent renovations.
50 The plaintiff deposed in February 2007 that he kept a lookout for light work but he had no success. He was in receipt of a Centrelink pension.
51 The plaintiff was concerned that the type of work for which he had experience was now not open to him because of his injuries and he found the job prospects in his local area were not good.
52 The plaintiff deposed that at the time of the accident, the plaintiff’s base rate of pay was $800 per week but his wages would often increase to $1,300 or so a week.
53 In his further affidavit sworn in October 2008, the plaintiff deposed he walked when conditions were fine and tried to walk for an hour twice a day. He went backwards in terms of physical conditioning if he did not walk.
54 In February 2008, the plaintiff started working at a nursery, One Stop Garden Shop in Moe. He did deliveries and a little light lifting. He also drove a front end loader and organised loads of garden products.
55 The plaintiff got a break between shifts and had four days off each week. By the end of his weekly shift, he spent a half day in bed due to fatigue.
56 The plaintiff was then taking Panadol on a needs basis for leg pain, mainly the left. His lower back was very tight and ached after activity. His legs seized up and he got tightness from the waist down. He tried to avoid driving for long distances.
57 The plaintiff was then being paid $14 per hour, but he had been paid $24 per hour before the accident.
58 The plaintiff was still suffering from anxiety and gave an example of one job where the truck he was driving moved sideways off the road and his heart started racing. The plaintiff experienced what he described as panic attacks five to six times a month and would sometimes get them two to three days in a row.
59 The plaintiff was hospitalised at Warragul Hospital in mid 2008 when he had an ECG performed. The doctors there put the attack down to stress.
60 In cross examination, the plaintiff could not recall whether he was still working at the Golf Club when he started the job at the garden centre. The latter job involved driving a loader, loading trailers and filling bags of mulch. Working three days a week for eight hours was not bad. “It gave him a sort of a bit of life.” He could not have done that job full time; with that amount of work, his back got sorer and sorer.
61 In November 2008, the garden centre was taken over by a company known as 4 Dies. The plaintiff continued to be employed by 4 Dies on the same terms, working three days each week, until just before Christmas 2008, when he was retrenched because he was not able to keep up with the required amount of work.
62 The new owners got the plaintiff in and told him they could see he was struggling. He was in a bit of pain and “getting aggravated.” They told him they were sorry but he had to go as the business was getting bigger and there was going to be more work.
63 As of late 2008, the plaintiff went to the pool as often as he could and swum laps. He could not do breaststroke but did freestyle and walked in the water. He also did aqua aerobics. He occasionally went fishing. He was unable to enjoy water skiing and boating due to the jolting involved.
64 The plaintiff swore a third affidavit on 25 August 2011.
65 The plaintiff deposed that since about September/October 2009, he has been employed by Eagle Fuels, a Melbourne company which supplies diesel fuels to trains. He is employed normally three days each week for four to four and a half hours a day at a rate of $30 gross per hour. On occasions he has been requested to work four days in a week. His normal weekly wage is $405 gross.
66 The plaintiff’s job is that of a truck driver’s assistant and his duties include pushing a trolley which carries a roll of hose, which subsequently becomes attached to the hose of the fuel trailer. Each carriage of the train is then filled with diesel fuel from the hose.
67 The plaintiff was cross examined at some length about his job with Eagle Fuels.
68 On his return from Darwin, the plaintiff got a call from a disability agency, Interact Employment, asking him to work at Eagle Fuels, a company for whom he had previously worked for a couple of days.
69 At that time, the plaintiff was being hassled by Centrelink to pick up extra hours and he thought he would try this job. At the start the plaintiff worked four nights in a row, but he was “pretty buggered” by the fourth night and swapped Monday night with another worker.
70 The plaintiff confirmed his specific job was to refuel trains at the station. The plaintiff described how he pulled the hose, as it tended to hurt if he pushed it.
71 The plaintiff confirmed he was required to lift trays weighing fifteen to twenty kilograms and did so using both hands, because it was easier that way balancing himself.
72 The plaintiff is employed as a permanent casual and if one of the other workers needs a night off, they generally ring him. The system is called “set and forget” and the plaintiff works out his work arrangements with the other workers. He gets paid $15 every half hour over the four hours. The maximum shift the plaintiff had ever done was five hours.
73 The train station is about a thirty five minute drive from the plaintiff’s home and he usually starts work at about 11 pm.
74 If the plaintiff did not have a back problem, he would be working in that job – “no problem, full time” – as he actually enjoyed it. He worked four and a half hours every Friday, Sunday and Monday nights and was on call the rest of the time.
75 In re examination, the plaintiff described how at the end of 2009, he did a little bit of bricklaying for a family friend over two or three weeks. Each day, he basically stopped working after about two or three hours. That experience showed him that he would never go back to laying bricks full time. He would never be able to make a good wage out of it.
76 In December 2010, the plaintiff was telephoned by Mr Reid, one of the managers at the garden centre and offered work on that particular day. The plaintiff worked as requested and it was agreed he would be re-employed to work each Sunday for six hours. Until Easter 2011, the plaintiff continued with that part time employment, for which he received $120 each week.
77 On his return to the garden centre in late 2010, there was a lot more to do than when he worked there previously. He ceased this job because he found working six hours, then having to work Sunday night at Eagle Fuels was just too much.
78 The plaintiff worked as a delivery driver at the garden centre. He filled bags with garden produce using a shovel. Deliveries were all over the Latrobe Valley. He had to pick up bags of gardening supplies and put them in the truck, or use a loader to put them in the boot.
79 The plaintiff denied the garden work ran out. The plaintiff explained there was work there. It was getting harder and harder every Sunday. He was getting sick of feeling the way he did, working then going to bed and getting up at night to go to the railways yards.
Current Pain
80 The plaintiff’s current situation is that he suffers pain and discomfort every day. He has some comparatively good days but also a lot of bad days.
81 In cross examination, the plaintiff described his pain as discomfort on just about everyday, which can turn to being a lot more discomfort. He denied he was recovering from back soreness after work much more quickly and that he generally woke free of pain.
82 Every day the plaintiff lives in discomfort, the level of which depends on what he is doing, but he gets by. He does not do repetitive lifting.
83 The plaintiff continues to suffer from sciatic pain down his left leg into his foot. His low back and sciatic pain is present all the time to some degree and is aggravated when he has to stand for considerable periods whilst refuelling the trains.
84 The plaintiff’s pain is alleviated when he is in the swimming pool. He finds sciatic pain is worse than his back pain and he has tingling in both feet, which occurs mainly when working.
Medical Treatment
85 The plaintiff has not had medical treatment in the last two and a half years, but he gets an occasional full body massage at the Gippsland Physiotherapy Group in Moe.
86 The plaintiff also carries out his own exercise program which includes doing as much walking as he can and doing aqua aerobics and laps of the local pool. He also does some work on the treadmill at the gym.
87 The plaintiff generally takes three Panadol after he has finished work and not before he goes, but it depends what he has been up to. At one stage the plaintiff took Codalgin, a prescription painkiller, but it would have been a year or two ago that he was last prescribed it. That was at the time of what he described as a “back attack” in about February 2010.
88 The plaintiff is now living on a farm property at Narracan where he has been permitted to use an additional empty house for a cheap rent of $150 per week.
89 In cross examination, the plaintiff described how he helped out with small jobs on the property such as looking after the thirteen chooks and doing minor repairs.
90 The plaintiff continues to have very little in the way of social life, but he does enjoy his current job. He deposed he would like to work longer hours but does not believe he could work full time, as he tires very easily, and finds long periods of standing aggravates his back.
91 In examination-in-chief, the plaintiff confirmed for the last couple of months he had not been receiving Centrelink payments. He confirmed he was earning too much money now to get Newstart.
Current Activities
92 In examination-in-chief, the plaintiff said he drove alone to Darwin. He “had had a gutful of everything.” He was away for over two months.
93 In cross examination, the plaintiff confirmed his inability to drive for long periods had improved since his 2007 affidavit. He can drive a lot further and he does not have to stop and get out for as long and he can hop back into his car fairly quickly.
94 In cross examination, the plaintiff agreed he had not referred to driving to Darwin in his affidavits.
95 The plaintiff drove to Darwin in his Toyota troop carrier- a vehicle he bought with the sale proceeds of his house in 2007. He bought it mainly for camping but he had not really done much camping. He has been to the Dargo High Plain to see the Cattlemen’s Cup. When he goes away overnight, he puts a swag on the ground with two mattresses, as it is easier for him to get up in the morning.
96 There was nothing set in the plaintiff’s mind when he left on the trip to Darwin. He just wanted to see how he would go. It took five or six days and while he went off the road, he did not do four wheel driving when he went to Kakadu. He felt he needed a holiday.
97 The plaintiff does not own a trail bike any more. He has a road bike, a 900cc Yamaha.
98 Prior to the accident, the plaintiff probably did not ride his trail bike for four or five years, but before then he used to ride regularly, say, six to ten weekends a year. The plaintiff’s bike is at a mate’s place and the plaintiff has not ridden it for three or four years.
99 The plaintiff confirmed his interest in V8s and that he was always interested in ski boats and skiing.
100 The plaintiff used to have a passion of surf fishing but has not been surf fishing since the accident. He has been fishing from the Blue Rock Dam river bank, sometimes after work. In re-examination the plaintiff said that before the accident he normally went surf fishing at Ninety Mile Beach, but he can no longer do so.
101 The plaintiff played tennis on Tuesday night indoors and a Saturday “B” Grade competition, but has not been able to play since the accident and he has not tried to do other activities.
102 The plaintiff confirmed he was renovating his house before the accident but could not do anything except a little bit of painting, when he had to sell it.
103 The plaintiff agreed that he liked a drink and a smoke and that was going to the gym practically every day until he moved out of town. He does a lot of stretching in the morning. He “did one big walk, but then thought he would never be doing that again.” He can dress himself and he does his own shopping.
104 The plaintiff essentially agreed with the description of his day given to Dr Entwisle. The plaintiff agreed that things had improved and he was moving forward. He agreed he told Dr Entwisle in April 2010, that his main interest was finding work.
105 A number of entries in the plaintiff’s clinical notes were put to him in cross examination.
106 On 10 June 2004, it was noted that the plaintiff had stacked 1.5 metres of firewood. He did not remember stacking the wood all at once. Before the accident he used to cut his own wood but since then, he had not been able to do so.
107 The plaintiff agreed that on 28 March 2007, he told Dr Fontaine he was a bit “knackered” doing up his house working on the roof. The plaintiff explained after his brother in law had done most of the work, the plaintiff got into the roof to hose it down.
108 The plaintiff did some painting in 2007 before he sold his house. He had a lot of help from his mother, sister, brother-in-law.
109 The plaintiff helped out his brother in law with his business called Just All Tasks in December 2007. He pushed barrows with concrete in them. He did not dig any trenches but he might have knocked off a few ridges in the dirt with a shovel whilst standing in the trench.
110 In cross examination, the plaintiff agreed when he saw Mr Khan this year, he told him that, of course, he wanted to get back to full time work. This was always the case. The plaintiff was trying to get more hours to get rid of what he is doing now so he would have more of a normal life, because he did not have a social life working those hours. He loved his job. If they said, “Do Sunday to Thursday”, he would take it just to see how he would go.
111 The plaintiff has been handing around his resume to places like Beer Wine & Spirits. He was looking at, say, three days work for eight hours a day. He would give a job a go if he could work Monday to Friday, if it was a lighter job than he was doing now. As long as the fatigue did not kick in he was “pretty right”.
112 The plaintiff has done a course in traffic control but knew he could not do that work because it involved a lot of standing and it was dangerous having to get out of the way of vehicles.
113 The plaintiff agreed that he had definitely improved his physique.
114 In re-examination, the plaintiff agreed that in April this year he was working twenty hours at work and that his hours varied. He was willing to go in and help out if necessary to get the extra money. He keeps in touch with his disability officer. He agreed the work market had been tough for a long time, but he wanted to stay in his current job.
115 The plaintiff presently earns about $420 per week, working an average of fourteen hours. The plaintiff’s pay slips from Eagle Fuels for ten weeks from March to May 2011 set out the plaintiff worked fifteen hours per week on a base rate of $30 per hour.
116 In re examination, the plaintiff said that there would be more work available for him at Eagle Fuels and he would be able to work a normal full time week if there were no physical restrictions. He could not work full time in his current job.
117 If the plaintiff could get a job that was not as physical, he would certainly give it a go again. He could not work in a store or a shop standing up all day, as he ended up “tireder and tireder, like his is now, just getting sore.”
Summary of the Plaintiff’s Earnings
Gross Income
Financial Year Centrelink Payments
Earnings
2001 $9,978 $7,049 2002 $10,267 $5,959 2003 $25,008 $2,141 2004 $41,360 Nil 2005 $18,837 $5,558 2006 $16,356 $8,277 2007 $6,249 $9,000 2008 $7,392 $7,090 2009 $9,610 $6,403 2010 $7,710 $6,529 2011 $24,837 $689
Compensation Documents
118 The employer’s copy of the worker’s claim dated 10 March 2004 set out the plaintiff suffered injury when a roller rolled over. The injuries were described as soft tissue injuries, left thigh and left lower back.
119 A certificate of capacity was provided by Dr Fontaine on 11 October 2004, setting out the plaintiff was fit for modified duties with his injury being mechanical low back pain and disc protrusion left L4-5.
The Plaintiff’s Medical Evidence
120 Dr Fontaine, at the Tanjil Place Medical Centre in Moe, first saw the plaintiff on 24 March 2004.
121 Dr Fontaine reported concern had been expressed by Winslow’s human resources department about the plaintiff’s mental state and the orthopaedic surgeon suggested the plaintiff seek counselling.
122 Dr Fontaine felt that the plaintiff had ongoing physical symptoms warranting further investigation and a subsequent CT scan was carried out.
123 It was reported that there were degenerative changes at L5-S1 with pars defect. There was a left paracentral disc protrusion suspected at the L4-5 level but it was noted that was difficult to image.
124 Dr Fontaine felt the left paracentral disc bulge at L4-5 corresponded to some of the plaintiff’s symptoms, although it was hard to date those appearances on the scan and in someone of the plaintiff’s size with a possible congenital pars defect, he thought these findings could have predated the injury.
125 Dr Fontaine noted the plaintiff was also suffering from agitated depression with tearfulness and sleep disturbance. He started the plaintiff on Avanza and referred him to a psychologist, Gary Lawler. Dr Fontaine put the plaintiff off work for a fortnight and sent him back to physiotherapy.
126 Clearly, in Dr Fontaine’s view the injury was the direct consequence of the plaintiff’s employment.
127 Dr Fontaine noted that attempts were made to return the plaintiff to work several times, but as of December 2004, he had to drive and all his duties were of a heavy physical nature and he was not very good at pacing himself. The plaintiff tried to “tough it out” but he kept pulling up sore and when that happened, emotional factors came to the fore. The plaintiff was working four hours a day, two days a week.
128 Dr Fontaine then thought the plaintiff had a permanent impairment with regards to his back and could not see him returning to pre-injury work. He considered the plaintiff had a capacity for alternative duties such as local light delivery, storeman and fork lift driver.
129 The plaintiff was then attending hydrotherapy and physiotherapy twice a week and making progress with core stabilisation exercises.
130 In a return to work plan in September 2004, Dr Fontaine noted the plaintiff wanted a half hour increase in his duties when he was then working three days a week, five hours a day.
131 In February 2005, Dr Fontaine noted the plaintiff had been made redundant at Christmas, at which time he was” treading water” in terms of doing eight hours a week over two days. Dr Fontaine believed the plaintiff had a capacity for more like twenty hours, if the duties were appropriate and closer to home.
132 He noted at that stage, the plaintiff had recent success in losing weight and that he should really be looking for lighter work in future, perhaps another delivery job.
133 In January 2006, Dr Fontaine reported to the plaintiff’s solicitors that the plaintiff’s recent settlement had taken off some financial pressure and theoretically should allow him to move forward in terms of swim and gym membership and improve his overall fitness and weight reduction. Dr Fontaine commented whether or not the plaintiff availed himself of that opportunity remained to be seen, though past performance was not encouraging.
134 On that basis, Dr Fontaine would have to say the plaintiff’s injury had not stabilised and that would probably remain the case for the next six months.
135 In February 2009, Dr Fontaine thought that the plaintiff had a capacity for work and had demonstrated that by finding employment with a garden supplier, although he gathered they had recently let the plaintiff go.
136 Dr Fontaine advised he did not think any passive treatments were likely to help the plaintiff and, in his view, certainly the plaintiff was not a candidate for surgery.
137 Dr Fontaine described the plaintiff as an overweight forty year old fellow whose entire working life had been in the area of heavy manual labour. He suspected the plaintiff’s back had been subject to multiple insults over the years which would have led to the degenerative component. He noted the small disc protrusion correlated with the plaintiff’s symptoms of nerve root irritation at the time of presentation and this part was probably directly attributable to the accident.
138 Whilst Dr Fontaine believed the plaintiff’s condition had stabilised, he himself had not seen the plaintiff for over a year.
139 On 22 February 2010, the plaintiff was seen by Dr Fontaine’s colleague, Dr Birks, with a flare up of his back pain. The plaintiff was then exhibiting some symptoms of nerve root irritation on the left side, whereupon the radicular pain was easing and the plaintiff was back to performing twenty five minutes’ activity on the exercise bike and was back at his part time job fuelling diesel trains at night.
140 Dr Fontaine reported that the plaintiff had not been taking prescribed analgesics from his clinic. It was his understanding the plaintiff was following a home based exercise program.
141 Dr Fontaine surmised the plaintiff’s condition had plateaued and he would experience the odd aggravation of symptoms from time to time, which would settle with conservative management.
142 Mr Gary Lawler, psychologist, saw the plaintiff for the first time on 22 April 2004 on referral from Dr Fontaine.
143 In a report dated 14 May 2004, Dr Fontaine diagnosed a chronic Post Traumatic Stress Disorder and major depressive disorder. He noted six months after the accident, the plaintiff continued to have distressing recollections of it, with marked avoidance behaviour and sleep difficulty.
144 Mr Lawler then believed the plaintiff was not fit for his pre-injury employment, noting the reliance on a degree of physical activity and alertness.
145 Mr Lawler anticipated the plaintiff’s psychological injuries were likely to resolve over the next two to six months, depending on the degree of engagement with psychological treatment and the extent to which the plaintiff believed the workplace harassment would not continue to occur.
146 Mr Lawler thought permanent psychological injury was unlikely. He suggested the plaintiff would be assisted by a rehabilitation consultant.
147 Mr Thomas, orthopaedic surgeon, saw the plaintiff once on 8 June 2004, when he was referred for evaluation of low back pain.
148 Mr Thomas noted on examination, the plaintiff was obese. Mr Thomas did not detect any neurological deficits. However, the plaintiff did have some tenderness to palpation of lumbar spine region.
149 In Mr Thomas’s view, the plaintiff had low back pain related to the work accident. He thought the plaintiff’s treatment had been appropriate and did not believe surgery would be necessary. He encouraged the plaintiff to lose weight.
150 Mr Thomas thought there was a direct connection between the accident and the plaintiff’s back pain and that he developed low back pain after the injury. Mr Thomas noted the L5 neural arch pars defect was a long standing condition and not caused by the plaintiff’s workplace accident. The plaintiff did state, however, following the accident his back became painful, whereas prior to it, he did not have low back pain.
151 Mr Johnson, orthopaedic surgeon, saw the plaintiff on 9 September 2005 at Dr Fontaine’s request.
152 At that stage, the plaintiff complained of frequent low back pain that radiated into both legs to the soles of the feet with the associated parasthesia. The symptoms were worse when sitting, driving, standing and kneeling and were relieved by lying down.
153 The plaintiff was a somewhat overweight man who localised his pain to the low back and legs. The range of thoracolumbar movement was fifty per cent of normal. Straight leg raising was seventy degrees bilaterally in both the lying and sitting positions. All of the plaintiff’s reflexes were present. There was no neurological abnormality in the lower limbs. There was a full range of hip movement.
154 Mr Johnson viewed a previous CT scan that showed evidence of a central bulge at the L4-5 level, as well as bilateral L5 pars defects with associated degenerative change.
155 Mr Johnson told the plaintiff he was uncertain of the cause of his symptoms. Whilst there were some abnormalities demonstrated on the CT scan they were non specific and it was difficult to know if they were the cause of the plaintiff’s symptoms. However, as the plaintiff was clearly struggling with his problem Mr Johnson recommended he be further investigated..
156 The MRI scan of 23 September 2005 demonstrated disc degeneration at the L4-5 and L5-S1 levels. At L5-S1, there were bilateral L5 pars defects and on the left severe L5 foraminal stenosis.
157 On review on 7 October 2005, Mr Johnson discussed the results of the MRI scan and explained to the plaintiff it was likely his symptoms related to his lower lumbar pathology. A clear cause of the left leg pain had been demonstrated although definite compression of the right sided root had been shown.
158 Mr Johnson noted the quality of the scan was fairly poor and he thought it might be possible the plaintiff might have a compression of the right root under pseudarthrosis mass.
159 At that time, the plaintiff did not want to consider surgery and preferred to be treated conservatively. Rehabilitation with Dr Thomas was discussed but due to financial concerns, the plaintiff preferred to leave things as they were. Mr Johnson noted at that stage the plaintiff was in the process of attempting to have his WorkCover benefit reinstated.
160 Mr Johnson concluded he was uncertain of the anatomical cause of the plaintiff’s pain. From the history, it appeared to be related to the incident. He felt it possible the plaintiff would be incapable of performing unrestricted work duties.
161 Should the plaintiff have persistent symptoms, then Mr Johnson would recommend he be treated initially with a rehabilitation program and if that was unsuccessful, then further investigations with a repeat MRI scan and possibly CT/myelography may be appropriate.
162 Elissa Muir, physiotherapist from Gippsland Physiotherapy Group, reported in July 2011. Ms Muir advised the plaintiff was last seen on 17 November 2010.
163 Ms Muir reported that the plaintiff presented to physiotherapy with a left lateral thigh haematoma and lumbar muscular spasm and stiffness.
164 She noted the plaintiff returned to work in February 2004 and there was a further reduction of his work hours due to pain and fatigue.
165 Physiotherapy consisted of electrotherapy massage, spinal mobilisations, manual therapy and stretches, hydrotherapy and supervised exercise program. The plaintiff attended twice a week until his sessions were ceased.
166 Ms Muir noted the plaintiff continued to report left lateral thigh pain, lumbar pain, bilateral knee pain, sensory dysfunction and fatigue.
167 The plaintiff also presented for four physiotherapy treatments for plantar fasciitis in late 2009 to Ms Turner.
168 To the best of Ms Muir’s knowledge, the plaintiff’s injuries were consistent with the accident.
169 Ms Muir estimated that the plaintiff would continue to suffer re aggravation of his lumbar and hip pain depending on his activity. Given his history, she considered the plaintiff would be restricted with the amount of lifting he would be able to complete and that he would have difficulties with sustained postures and any twisting or turning activities.
170 She estimated the plaintiff would require further medical treatment particularly since there was a high likelihood of re-aggravation to his lumbar spine. Based on the CT report she thought the plaintiff’s lumbar spine was likely to continue to deteriorate and it was possible he may be required to seek the opinion of a neurosurgeon, should conservative treatments fail. She recommended the plaintiff have entitlement to physiotherapy sessions to provide assistance should he suffer an aggravation of his injuries.
Medico-Legal Evidence
171 Mr King, orthopaedic surgeon, examined the plaintiff in June 2005.
172 The plaintiff then complained of an intermittent nagging lumbosacral back pain for three days a week, lasting for a few hours at a time. His main worry continued to be constant aching in the backs of the buttocks, thighs and calves, the left being much worse than the right.
173 On examination, straight leg raising was seventy degrees bilaterally. There was no neurological abnormality.
174 There was mild to moderate limitation of thoracolumbar spinal movements by spasm and pain (approximately two thirds of the normal range of all movements were present). No x-rays were available to Mr King, but he did have the radiologist’s report of the April 2004 CT scan.
175 In Mr King’s view, such generalised trauma to the trunk and spine in the accident was likely to have resulted in at least some damage to lumbar discs and associated ligamentous structures, noting there was a small disc bulge at the L4-5 level and evidence of some pre-existing narrowing and mild degeneration at the L5-S1 level.
176 Mr King thought such injury to lumbar discs and associated ligamentous structures would adequately explain the onset of low back pain and some bilateral but mild persistent sciatic pain, particularly in the left thigh.
177 Mr King considered the plaintiff was chronically disabled to a moderately severe degree by a stiff painful lower back and by some mild but definite nerve root irritation resulting in left sided sciatica.
178 On the basis of the plaintiff’s clear history, Mr King attributed all of his persisting problems to the effects of the accident trauma.
179 Mr King noted an earlier incident of low back pain when the plaintiff was about eighteen would explain the mild degenerative changes present at L5-S1, but accepting the plaintiff went back to heavy working, including bricklaying, for many years after this, Mr King thought that original injury at the age of eighteen had seemed to have left the plaintiff with no long term impairment.
180 Mr King considered the plaintiff had stabilised and it was reasonable to assume he would never go back to bricklaying or to any other heavy unskilled manual job that involved constant bending, lifting and straining. In Mr King’s view, there was no functional element present that he could detect.
181 Mr Khan, orthopaedic surgeon, examined the plaintiff on 8 November 2010. The plaintiff told him of a constant ache in his back, more in the left than the right. The plaintiff had a persistent ache in his lumbar spine, more on the left side of the middle and left loin area, with pain going down to the left buttock and thigh.
182 On examination, movements of the thoracolumbar spine were restricted. A straight leg test was negative on both sides and there was no muscular wasting in the thighs or calves on measurement. The plaintiff occasionally got “pins and needles” in the soles of both feet, but at the time of examination, he did not have any symptoms.
183 An examination of the plaintiff’s nervous system was normal. There was hamstring tightness particularly on the left, and restricted hip movement.
184 Mr Khan thought the plaintiff had flared up pre-existing asymptomatic disc degeneration at L4-5 and L5-S1 levels, noting he had a pre-existing bilateral pars defect in the lumbar spine and had flared up left sided L5 foraminal stenosis associated with the left leg pain. Mr Khan noted the plaintiff had also developed non organic psychological trauma as a result of the injury.
185 Mr Khan thought from an orthopaedic point of view, the plaintiff had been left with significant residual after effects of the injury. The plaintiff was unable to perform any heavy strenuous type of work requiring excessive bending, twisting and turning of his spine, lifting heavy weights, sitting or standing for long periods or walking for long periods.
186 In Mr Khan’s view, the injuries had affected not only the plaintiff’s working aspect of his life but also his domestic activity, recreational aspect of living and had disrupted his family life.
187 Mr Khan considered the plaintiff had been left with partial permanent residual impairment of function, as an after effect of his injury. He thought the plaintiff was totally unfit for his pre injury duties but coped with alternative duties within the restrictions as mentioned above. He did not recommend any surgical intervention for the plaintiff’s back injury and thought he should continue to receive facilities to attend the gym regularly and carry on with a low impact home stretching exercise program for an indefinite period.
188 As a result of the accident, Mr Khan thought the plaintiff had sustained soft tissue or musculoskeletal and ligamentous injury to the lower lumbar spine and left hip area. He noted the plaintiff had sustained non organic psychological trauma as a result of the accident. However, Mr Khan thought the plaintiff’s condition was genuine and was not associated with feigning or misleading on the plaintiff’s part. Mr Khan thought the plaintiff’s condition had stabilised.
189 Associate Professor Wallin examined the plaintiff in November 2010.
190 The plaintiff described to Professor Wallin that he normally did not have severe pain every day but indicated on most days he had what he described as fatigue, involving mainly stiffness in his low back, but not sufficient pain to result in the need for use of medications. His back became quite stiff when he sat for thirty minutes and he struggled if walking for more than an hour. He also indicated he episodically experienced pain and stiffness extending down his left leg.
191 On examination, the plaintiff had approximately sixty five per cent of the normal range of back movement, giving rise to low back stiffness but not pain. He had to squat to pick things up from ground level. However, he indicated his legs were always very weak on an ongoing basis when he did that activity.
192 Lower limb reflexes were present, but weak. Straight leg raising on the right was comfortable but on the left gave rise to stiffness in the left low back. Sensation in the lower limbs was normal.
193 Professor Wallin noted the plaintiff currently did not have ongoing major pain in his back but he did have very significant vulnerability relating in significant stiffness in the back and significant weakness in the legs.
194 Professor Wallin had available the April 2004 lumbar CT scan, which recorded the presence of degenerative changes at L5-S1 with a pars defect and also a left paracentral disc protrusion, which was suspected at the L4-5 level, but was difficult to image.
195 Professor Wallin thought the plaintiff had some ongoing low back disability, in spite of the fact he previously did have a very significant diagnosable component of pain and some sciatica. He considered at the age of forty one, the plaintiff did not have major ongoing low back pain. However, he had some ongoing significant vulnerability in his low back, which resulted in the development of a significant component of stiffness and also in a very large component of fatigue, which probably did incorporate a psychological component.
196 Noting the plaintiff had had a mild injury to his back at eighteen, Professor Wallin commented that for many years after, the plaintiff was able to actively engage in bricklaying and therefore there was no doubt whatsoever his ongoing disability was realistically assessable as containing a material injury from the accident.
197 Noting the plaintiff’s current status and the fact that when he did try to engage in some bricklaying over a two week period in late 2009, he had significant difficulties, Professor Wallin thought it appeared unlikely the plaintiff would ever be able to return to his pre-injury employment or physical activities. Although the plaintiff was doing a light job for fifteen hours a week, Professor Wallin noted the plaintiff appeared to be marginalised in the workforce for a very long period of time and it was unlikely he would ever in the future recover to the point of being able to engage in more than fifteen hours work of light duties; that is, incorporating the fuelling job he is engaged in on trains in Traralgon.
198 Professor Wallin concluded the plaintiff’s condition was definitely organic in nature, although there was a mild degree of psychosocial disability, consequent upon the physical injury and its negative impact on the plaintiff’s life.
199 The plaintiff was examined by Thomas Kossmann, orthopaedic surgeon, in June 2011.
200 The plaintiff told him that he had pain in his back which was manageable but it took him some time to get going in the morning. His sleep was disturbed and sometimes, when he woke when his back was sore. From time to time he experienced tingling in his feet, mainly on the left.
201 The plaintiff told Mr Kossmann of his work history and that he was working for Eagle Fuels for the previous eighteen months, a job involving filling trains with diesel. The work was for four hours a night, three days a week. He could manage his back pain if he was careful. The days after quite laborious work, the plaintiff regarded as recovering days.
202 On examination, the plaintiff complained about pain starting in his lower back, radiating to his left hip and then his left leg. There was some reduction in spinal movements and straight leg raising was seventy degrees bilaterally. There were no sciatica signs and on the left, the plaintiff complained of hamstring pain. There was no other neurology.
203 Mr Kossmann had available to him the CT scan of the lumbar spine of April 2004, and x-rays of the pelvis, right hip and left hip of May 2005 and an MRI of the spine of 23 September 2005.
204 Mr Kossmann did not expect any significant improvement of the plaintiff’s condition and did not consider any other treatment at present was necessary or appropriate, noting the plaintiff was undergoing a self exercise program in the gym and swimming.
205 Mr Kossmann diagnosed back pain - lumbar spine - on the basis of degenerative changes of the lumbar spine with an L5-S1 pars defect and a possible disc prolapse at the L4-5 level. He considered the injuries were consistent with the accident.
206 Mr Kossmann thought the plaintiff was able to work, noting that his current duties were adequate. He also mentioned the plaintiff had tried to work further hours and days but was not able to cope.
207 Mr Kossmann thought the plaintiff’s prognosis was moderate and that he would suffer from back pain for all of his life. He believed the plaintiff was not a candidate for surgical intervention.
Psychiatric Examinations
208 Dr Nigel Strauss, psychiatrist, assessed the plaintiff in May 2005, at which time the plaintiff was looking for work.
209 The plaintiff described depression and occasional tearfulness. He had no specific nightmares about the accident, or any nervousness driving a car.
210 The plaintiff said his memory and concentration were not good and he was forgetful and he was upset and stressed. He also advised he was less socially active.
211 On examination, the plaintiff was preoccupied with his physical and social problems and his thinking was negative. However, there was no evidence of any psychosis, delusions or hallucinations. The plaintiff was mildly anxious and insight was reasonable. Perception was normal and memory and concentration were good.
212 Noting the plaintiff had apparently suffered a frightening accident and had been left with chronic pain and a phobia about driving a roller machine, Dr Strauss was not sure of the plaintiff’s organic status, and therefore could not say the plaintiff had any psychologically based pain. However, because of his chronic pain, he thought the plaintiff had developed secondary anxiety and depression and this was associated with his roller driving phobia.
213 Dr Strauss believed that the plaintiff’s incapacity for employment was physically, not psychologically based. He believed the plaintiff would probably benefit from five visits to a psychologist. However, the plaintiff’s dosage of psychotropic medication did not need to be increased.
214 Dr Strauss thought the plaintiff may improve once he found stable employment and if his physical problems improved.
215 Dr Strauss re-examined the plaintiff on 14 June 2011.
216 The plaintiff told Dr Strauss of his job history since the last attendance and the fact he had been working as a diesel train refueller for the previous eighteen months.
217 Further, until recently, the plaintiff was also working at a garden centre six hours a week, but said the work was too demanding and he was now looking for alternative light work.
218 The plaintiff described pain in his legs, lower back and left hip. He was not having any active treatment because he could not afford it, but he was going to the pool and did some light work at the gym.
219 On mental state examination, the plaintiff’s thinking was a little concerned and worried but was not depressed. There was no evidence of any psychosis delusions or thought disorder. Memory and concentration were good and the plaintiff did not appear to be in any pain.
220 Dr Strauss confirmed the plaintiff’s anxiousness driving a roller or four wheel drives. Whilst the plaintiff had a phobia in regard to these activities, Dr Strauss thought he currently had no other psychiatric problem. The plaintiff did not present as depressed or anxious at interview; in other words, he was not suffering from secondary psychiatric reaction to his physical problems.
221 Dr Strauss did not believe the plaintiff had any psychologically based pain, just the specific phobia consistent with the accident. In his view, any incapacity for employment was physically, not psychiatrically, based and the plaintiff did not require any treatment.
Vocational Evidence
222 Mr Hartley of the OR Group carried out a vocational assessment of the plaintiff on 18 October 2005.
223 It was concluded that the plaintiff was unable to return to bricklaying work due to his injury. He was not in a position then to commence job seeking until medical, financial, vocational, counselling and retraining issues had been successfully dealt with.
The Defendant’s Medical Evidence
224 There were a number of medico-legal examinations arranged in 2004 which are of limited relevance, given they are now seven years out of date.
225 Mr Ketharnathan examined the plaintiff in April 2004. The plaintiff was then complaining of aches in both his lower limbs, with the right worse than the left.
226 On that examination, range of movement of the thoracolumbar spine was unimpaired and the plaintiff was able to climb and lie flat on the examination couch without discomfort. Straight leg raising was performed normally without any discomfort. Reflexes and sensation were normal in both lower limbs and there was no muscle wasting observed in either lower limb.
227 Mr Ketharanathan thought the plaintiff sustained lumbosacral musculoligamentous injury and laceration and bruises to his trunk. He then thought there was no physical clinical evidence of any impairment to the lumbosacral spine or the trunk. However, he noted that the plaintiff appeared clinically depressed and he thought a psychiatric appraisal may be helpful.
228 Mr Peter Nelson, orthopaedic surgeon, examined the plaintiff in September 2004. He noted the nature of the plaintiff’s injury would appear to have been a musculoligamentous strain to the supporting ligaments and related structures of his back.
229 Mr Nelson thought the plaintiff’s ongoing symptoms were not consistent with that soft tissue injury, noting the plaintiff had degenerative disease in his lumbar spine and had a congenital pars interarticularis defect at L5-S1.
230 In Mr Nelson’s opinion, the plaintiff’s ongoing problems and his current state related to his degenerative disease and his congenital underlying pars problem, both of which were intermittent problems from time to time with flare ups and remissions.
231 In his view, the plaintiff’s employment no longer significantly contributed to his current state.
232 Dr Kenna, consultant in musculoskeletal pain management, examined the plaintiff on 21 October 2004.
233 The plaintiff’s main complaint was then back pain with referral of symptoms into the legs and up the spine.
234 On examination, the plaintiff was tender at the L5-S1 junction, but there was no neurological deficit.
235 At that stage, Dr Kenna was not able to confirm the ongoing presence and nature of any totally incapacitating lesion. He considered any soft tissue injuries had long since dissipated.
236 In his view, although the plaintiff initially had work related injuries, these were substantially of the soft tissue nature, and they had since dissipated.
237 He thought the plaintiff’s clinical presentation was explainable by the radiological findings; that is, lower lumbar degenerative change accelerated by gross obesity with associated pars defect and subsequent discal pathology.
238 Dr Kenna noted, clearly psychological factors had played a role. It had been generally acknowledged that the plaintiff had a limited capacity to return to work and he was certainly unfit for pre injury employment due to substantially reduced activity tolerance levels.
239 The plaintiff was examined by Dr John Douglas, psychiatrist, in June 2004. The plaintiff then described back ache and a pain in his legs and tingling in his feet.
240 On mental state examination, there were no disorders of perception. The plaintiff’s insight was good and he was able to recollect information.
241 Noting the most salient symptom appeared to be back and leg pain, Dr Douglas diagnosed a pain disorder associated with both psychological factors and a general medical condition being a soft tissue injury associated with the accident, to which the employment was a contributing factor.
242 Dr Douglas believed the plaintiff should be encouraged to return to work with a view to resuming his pre injury employment, but he thought that the plaintiff could not work full time then.
243 Dr Kostos, rheumatologist, examined the plaintiff initially in 2010 and more recently in August this year.
244 On the first examination, the plaintiff told him he had ongoing soreness in his back and legs with tingling in the feet, but his main problem was actually fatigue and soreness in his lower back, with pain in both legs greater in the left than the right.
245 The plaintiff was then working two to three hours per night, three nights a week and one night the following week refuelling trains.
246 On examination, all movements were restricted with some minor discomfort. A similar sensation was noted with simulated rotation, but not with axial compression. There was mid line lumbosacral and coccygeal tenderness, without adjacent paravertebral or sciatic notch tenderness. The plaintiff’s hips showed a full range of movement, with some discomfort on the left. Straight leg raising was to thirty degrees bilaterally with negative sciatic nerve stretch tests, although the plaintiff complained of tight hamstrings. Neurologically, reflexes were normal and sensation to pin prick was slightly reduced throughout the entire left leg.
247 Dr Kostos had available the lumbar 2004 lumbar CT scan and the September 2005 MRI scan.
248 Dr Kostos diagnosed a number of soft tissue injuries, “for want of a better description,” as a result of the accident, which had largely resolved. He thought the plaintiff had some ongoing low back pain with bilateral leg pain, although that had changed over the years and was now predominantly in the left leg.
249 Dr Kostos considered that the plaintiff certainly had some features suggestive of radicular pain but there was not any confirmation of that on physical examination. He noted the plaintiff’s other main problem was that of fatigue, which was obviously multifactorial.
250 Given the continuation of the plaintiff’s symptoms, Dr Kostos thought the plaintiff’s prognosis was poor.
251 Noting the plaintiff complained of some ongoing back and predominantly left leg pain and investigations did suggest some impingement of the left L5 nerve root, Dr Kostos thought the nature of those changes clearly indicated that the radiological appearances predated the accident. He wondered whether they had actually become more of a problem for the plaintiff recently, once his other problems settled.
252 On the basis of the plaintiff’s history, Dr Kostos suggested he could have some radicular pain in his left leg. In Dr Kostos’ view, there were certainly no objective findings to confirm a radicular origin. He considered the changes were constitutional in origin and had not been caused or aggravated by the accident. He thought the plaintiff did not require specific treatment.
253 On re-examination in August 2011, the plaintiff indicated that overall there had not been a great deal of change in his condition.
254 All movements showed slight restriction with left sided discomfort in all directions. There was mid line lower lumbar and adjacent paravertebral tenderness to palpation, right greater than on the left, with buttock tenderness, left greater than the right. The hip showed a full range of movement without discomfort. Straight leg raising was still to thirty degrees bilaterally and the plaintiff claimed that sciatic nerve stretch testing produced “quads” pain. There was similar neurological findings with Dr Kostos noting the situation had not changed a great deal since he saw the plaintiff in 2010.
255 Dr Kostos noted, further, the situation was being compounded by some inconsistencies on physical examination and the presence of organic signs. Dr Kostos considered however, in the end, it really meant that all that was being relied upon was the plaintiff’s subjective assessment of his own symptoms. It was therefore not possible to make a specific diagnosis.
256 Dr Kostos confirmed the best treatment for the plaintiff would be an exercise program to increase general fitness and assist with weight loss. In Dr Kostos’s view, the plaintiff was not incapacitated for employment as a result of his compensable injury, as he was currently working. However he noted the plaintiff was working in a reduced capacity and that situation was likely to remain for the foreseeable future, unless he embarked on the exercise program. Dr Kostos outlined.
Psychiatric Examinations
257 Dr Entwisle, psychiatrist, first examined the plaintiff in November 2005 when the plaintiff was found to suffer from an adjustment disorder with anxious and depressed mood. He re examined the plaintiff in April 2010 and July 2011.
258 On the recent examinations, Dr Entwisle was the of the view the plaintiff did not present with a psychiatric condition.
259 On the latest examination, the plaintiff described his mood as improved and that he was good and picked himself up and he was no longer withdrawn or a hermit. He loved life again; he just wished he had more money. He was no longer tearful or depressed. He thought he was moving forward.
260 On mental state examination, the plaintiff’s memory and concentration were intact and his insight was present. There were no perceptual abnormalities noted. There was no thought disorder or delusional thinking and there were mildly anxious themes.
261 Dr Entwisle thought from a psychiatric perspective, the plaintiff did not suffer from any impairment for work. He thought the plaintiff’s prognosis was good and a return to normal functioning.
Claim Documentation
262 The worker’s Claim for Compensation was dated 2 March 2004. The injury was described as grazing and bruising to the elbow, hip and knee.
263 By letter dated 15 November 2004, Cambridge terminated the plaintiff’s entitlement to compensation of weekly payments and medical and like expenses on 16 December 2004 based on the medical opinion of Dr Nelson and Dr Kenna.
264 Cambridge advised the plaintiff that his employment was no longer a significant contributing factor to the claimed injury.
Vocational Assessment
265 Mr Hartley of OR Group carried out a vocational assessment of the plaintiff on 18 October 2005.
266 Mr Hartley set out that between 1987 and 1990, the plaintiff completed his apprenticeship with Kalitzi Bricklayers Pty Ltd. Between 1990 and 1993, the plaintiff was described as a self employed bricklayer. He undertook jobs such as letterboxes, barbecues, fences, carports piers and slate ceiling. In 1993 he built a house for relatives.
267 In 1993 it was noted the plaintiff was doing bricklaying with house construction for Lee and Dean Acheson. In 1994, the plaintiff was self employed in shed construction, planning, measuring, cutting, laying concrete foundations, erecting walls and finishing.
268 From June to December 1995, the plaintiff was employed as a labourer in rail line construction through New Work Opportunities on the Walhalla Goldfields Railway Project. His duties included painting, builders’ assistant, jacking and packing railway line, bricklaying, tutoring and landscaping.
269 From 1998 to 1999 the plaintiff worked at J Robins in South Oakleigh operating presses to make ladies shoes working in the making room, heel room, and bottom stop sections.
270 From 1996 to 2000, the plaintiff was described as a self employed bricklayer, working on houses, barbecues, fences, car port piers, letterboxes and concrete labouring.
271 In 2000, he was employed as a timber mill labourer with Plant Hard in Morwell, where his duties included stacking timber, quality control, chipper operation, log deck and binding sticks.
272 In 2001, the plaintiff worked as a contract cleaner with Yallourn Gold Club, undertaking general cleaning, mopping and vacuuming and worked on a part time basis to supplement his income.
273 In 2002, the plaintiff was employed in traffic control with MG Webster & Co where he worked as a survey assistant and road traffic controller on a part time basis. He also worked for that company for two weeks as a roller driver with surveying and landscaping assistant duties.
274 Between 2002 and 2003, the plaintiff worked as a bread delivery driver with Tip Top Bakeries.
Overview
275 I accept that in the accident, the plaintiff suffered injury to his lower which has been diagnosed as a soft tissue injury or mechanical back injury, aggravating a pre existing degenerative lumbar condition.
276 Whilst medical reports obtained on the defendant’s behalf in 2004 contain opinions that any accident related aggravation had ceased and that the plaintiff’s condition was constitutional in nature, I do not accept this is the case and that argument was not pursued in submissions.
277 The plaintiff however suffered from some back problems before the accident.
278 In Petkovski v Galettii (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.”
279 At the age of eighteen, the plaintiff had a back injury whilst bricklaying that put him off work for two to three months at that time. Thereafter, the plaintiff had a condition which he described as “brickies back” where he experienced stiffness when resuming work after a weekend off.
280 The condition was one of tiredness and discomfort and save for that initial period off work, the plaintiff was able to work unrestricted in his various jobs including bricklaying without the requirement for any treatment.
281 On this basis, I am satisfied that the plaintiff did not have ongoing back problems of any significance immediately prior to the accident.
282 As counsel for the defendant conceded, there is no doubt that the plaintiff has back pain however the extent of that pain and the consequences thereof are in issue.
283 I accept the plaintiff was a very truthful, credible witness, who gave his answers honestly and did not in any way exaggerate his complaints.
284 There was no attack on the plaintiff’s credit. There was no surveillance film. Save for a brief reference by Dr Kostos to some inconsistencies on examination, no doctor was of the view that the plaintiff embellished, exaggerated or feigned his symptoms.
285 Whilst the plaintiff might have described his ongoing condition as one of discomfort rather than pain, it is persisting discomfort which continues to interfere with his activities as he confirmed in his viva voce evidence.
286 Although he has had no medical treatment since a flare up of his back pain in February last year, the plaintiff continues to take Panadol tablets for pain relief after he has finished work. He self manages his condition doing exercises at home and, until moving out of town recently, regularly went to the gymnasium.
287 I accept the plaintiff has been highly motivated in terms of increasing his fitness and he has resumed a deal of physical conditioning.
288 Whilst he can still dangle a fishing rod at the local dam, the plaintiff is no longer able to enjoy his passion of surf fishing because of his back condition.
289 The plaintiff’s other sporting activities have been similarly restricted with the plaintiff having to cease playing social and competition tennis and also golf and losing the social interaction he enjoyed in relation thereto.
290 The plaintiff’s ability to carry out maintenance and renovation tasks has been significantly restricted. Before the accident, the plaintiff installed a bathroom, knocked out walls and did other physical tasks renovating the home he purchased. After the accident the only work he was able to do was to assist family members paint the house in 2007 for it to be sold as he could no longer afford the repayments.
291 The plaintiff is frustrated by his discomfort and limitation on his activities and is still upset by the accident as he demonstrated in court when he momentarily broke down. Whilst he does not have a psychiatric illness, these are expected emotional consequences of his physical injury that I am entitled to take into account in assessing its seriousness, as President Winneke set out in Richards v Wylie.
292 As counsel for the plaintiff submitted, the major consequence of the plaintiff’s condition is its effect on his work capacity.
293 I accept that this case, in terms of employment, is not as straightforward as a man losing his trade as a bricklayer.
294 Clearly, having completed his apprenticeship, thereafter the plaintiff only worked in his trade occasionally and on an unpaid basis for friends and family.
295 It was apparent prior to the accident that the plaintiff’s career was taking a wider path, with him engaging in various unskilled and at times heavy labouring jobs which he was able to carry out without problems with his back.
296 Having engaged in a number of short term jobs over the years since completing his apprenticeship, in the eighteen months or so before the accident, the plaintiff’s employment position had stabilised considerably with full time work at Tip Top Bakery, then the job at the garden centre and finally the three month contract with Winslow.
297 I am satisfied that the plaintiff earned in the vicinity of $1,500 per week during the early weeks of that contract as evidenced by the tendered pay slip. Whilst this was a relatively high figure, it is evidence of the plaintiff’s earning capacity had he not been injured in the accident.
298 As the plaintiff’s level of work had increased significantly in the eighteen months before the accident compared to his irregular and short term work before that time, I am entitled to take this figure into account when considering the plaintiff’s earning capacity.
299 Since the accident, the plaintiff has not been able to return to full time unrestricted heavy physical work.
300 The plaintiff experienced difficulties on his return to Winslow in the months after the accident. He could not cope with full time restricted duties and his hours were subsequently reduced to the point where he was working only a couple of days a week on limited hours in what he described as tile tacking when his employment was terminated.
301 The plaintiff’s work history since that time has demonstrated his continuing problems with heavier work and working longer hours.
302 Whilst he had a cleaning contract at the Golf Club, the plaintiff only worked six hours a week and could not have worked full time. His work at the garden centre was limited and he was not able to work full time hours.
303 The plaintiff obtained his current job with Eagle Fuels through a disability support agency. I accept that the plaintiff would do more work for that employer if he was physically capable, as he enjoys the job.
304 However, when the plaintiff has worked further hours, he has had problems, as evidenced in the early stages of his employment when he was required to work the Monday after the three consecutive nights and on other occasions when he worked more extended hours.
305 The plaintiff paces himself at work and takes care of his back when undertaking his duties. He is able to recover from any discomfort or tiredness in the days he has off between his three day work shift.
306 I accept the plaintiff is highly motivated to work and his increase in hours to fifteen or so per week with Eagle Fuels, has ended his entitlement to Centrelink benefits.
307 I accept that the plaintiff cannot do his present job full time with the lifting and standing required. Further in my view, the plaintiff could not do a job standing all day in a store or shop or a similar job on a full time basis because of his low back pain.
308 As the plaintiff explained, the more he works, the sorer and sorer he gets and the more fatigued he becomes.
309 The consensus of medical opinion is that the plaintiff does not have a capacity for his pre-injury unrestricted manual heavy work but has the capacity for work not requiring heavy lifting, sitting or standing for prolonged periods, twisting and turning of his spine and excessive bending.
310 I accept that the plaintiff has embarked on an appropriate exercise program as suggested by Dr Kostos but his reduced capacity for manual work remains.
311 Prior to the accident, the plaintiff had limited work prospects because of his education, lack of training and his history of manual work. Taking away the plaintiff’s capacity for heavy manual work is a serious consequence for him. Whilst he has various tickets to drive machinery, he does not have the ability to do the lifting or other heavy work that would be involved in such jobs.
312 Clearly, the plaintiff has a capacity for some work as evidenced by his current job. I accept the plaintiff is well motivated and has told doctors that his top priority is getting back to work, but he cannot because of his physical restrictions. Whilst he might have the desire to return to full time work, he does not have the physical capacity to do so.
313 Further, I am satisfied as the plaintiff’s back pain which has persisted since 2003 with only limited improvement, that his condition is long term.
314 I am satisfied that the consequences of the impairment to the plaintiff’s back, when judged by comparison with other impairments in the range of possible impairments can be fairly described as being more than significant or marked and as being at least very considerable.
315 Accordingly, I grant leave to the plaintiff to being proceedings in relation to the transport accident.
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