Perrone v Beston Skilled Labour Hire Pty Ltd
[2016] VCC 619
•20 May 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationSERIOUS INJURY LIST
Case No. CI-14-03486
DINO PERRONE Plaintiff v BESTON SKILLED LABOUR HIRE PTY LTD Defendant ---
JUDGE:
HIS HONOUR JUDGE BROOKES
WHERE HELD:
Melbourne
DATE OF HEARING:
22, 23 and 26 October 2015
DATE OF JUDGMENT:
20 May 2016
CASE MAY BE CITED AS:
Perrone v Beston Skilled Labour Hire Pty Ltd
MEDIUM NEUTRAL CITATION:
[2016] VCC 619
REASONS FOR JUDGMENT
---Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering – identity of injury – aggravation of pre-existing degenerative change – disentangling
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
Judgment: Leave granted to bring proceedings for pain and suffering damages.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr S J A Jurica
Adviceline Injury Lawyers For the Defendant Mr C D N Griffin Russell Kennedy HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered by the plaintiff in the course of his employment with the defendant on 29 November 2010 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. He brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined, relevantly, as meaning:
“(a) permanent serious impairment or loss of a body function … .”
3 The body function relied upon in this application is the lumbar spine.
4 The plaintiff relied upon two affidavits and gave vica voce evidence. He was cross-examined. In addition, he relied on the affidavits of Michelle Maglitto, sworn 23 September 2015; Christopher James Dodd, sworn 30 September 2015 and Helen Duffy, sworn 1 October 2015. In addition, both parties relied on medical reports and other material which was tendered in evidence. The defendant also relied on video-surveillance, taken 30 May 2015.
Outline of Section 134AB
5 The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future.
6 By ss38(c), 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 more than significant or marked, and as being at least very considerable.
7 The statutory test reflects the decision of the Full Court in Humphries & Anor v Poljak,[1] where Crockett and Southwell JJ held:
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. Informing a judgement as to whether, when regard is had to such consequences, an injury is to be held to be serious, the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? Beyond such guidance it is, we think, not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time-to-time of a range of applications including those, the adjudication of which is now our responsibility.”[2]
[1][1992] 2 VR 129
[2]Humphries & Anor v Poljak (supra) at 140
8 Accordingly, the Court must consider the impairment of body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments. In Stijepic v One Force Group Aust Pty Ltd & Anor,[3] Ashley JA and Beach AJA stated:
“The emphasis in s134AB(37)(c) and in (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because it may be supposed, the consequences are glaringly apparent one way or the other.”[4]
[3][2009] VSCA 181
[4]Stijepic v One Force Group Aust Pty Ltd & Anor (supra) at paragraph [42]
9 The question whether an injury satisfies the definition of “serious injury” is largely a matter of impression and value judgment.[5]
[5]Kelso v Tatiara Meat Co Pty Ltd (2007) VSCA 267
10 Subsection 38(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[6] in reaching my conclusions.
[6](2005) 14 VR 622
The issues
12 The injury identified is aggravation of pre-existing degenerative change in the lumbar spine.
13 It is settled law that for the purposes of s134AB of the Act, an aggravating injury must, itself, qualify as a serious injury.[7]
[7]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
14 In his final address, Defence Counsel identified the issues as follows:
(a)the plaintiff had suffered from a previous back injury by way of aggravation and acceleration of underlying degeneration, for which he had a significant amount of treatment, and from which there were fairly significant consequences flowing;
(b)it is accepted the plaintiff suffered a further aggravation of his underlying degeneration in the workplace incident that took place on 29 November 2010, which required quite intensive treatment until about mid-2011;
(c)Thereafter, a stage was reached where there had been improvement and stabilisation;
(d)more intensive treatment was sought after these proceedings had been issued in March 2014;
(e)the consequences at the date of hearing attributable to the 2010 injury are exaggerated and do not meet the threshold required by statute.[8]
[8]Transcript (“T”) 138, Line (“L”) 49 – T141, L8
Background facts
15 The plaintiff was born in March 1973. He attended high school but did not pass Year 12 in 1991. Thereafter, he was employed at Melbourne Pathology, first, in the maintenance department and then later, in the storeroom for about ten years and, thereafter, as a laboratory clerk.
16 While working at Melbourne Pathology, in about 1997, the plaintiff made a claim for compensation in relation to a back injury and had treatment.
17 In late 2000, while still employed at Melbourne Pathology, he suffered further back pain while lifting boxes, and made another claim for compensation in relation to this back injury.
18 Over the years, between 1997 and 2007, he experienced episodes of back pain and sought treatment from his general practitioner.
19 Between 18 September 1997 and 12 April 2007, the plaintiff was treated for lower-back pain at a general practice known as Eastbrooke Family Clinic.[9] Thereafter, he asserted he stopped having treatment and stopped having ongoing symptoms with respect to his lower back.
[9]Exhibit 6
20 In approximately late 2008, the plaintiff started work with Cram Drainage (“Cram”), doing plumbing repairs, which he alleged was a heavy job consisting of digging trenches for drains. He transferred from Cram to the defendant in early 2009, where he was performing the same type of work as a full-time labourer, essentially digging trenches, using an excavator machine.
21 The plaintiff alleges he had no problems doing this heavy work for approximately two years although, on occasions, he was required to do digging jobs on his own. He alleges he started to get some symptoms again in 2010.
22 Significantly, on 29 November 2010, in the course of his employment with the defendant, the plaintiff was required to dig an L-shaped trench with the width of approximately 1 foot and a length of 15 to 20 metres, with an increasing depth from 30 centimetres up to around 1.5 or 2 metres, by hand.[10] He alleges the employer was unable to supply him with an appropriate digging machine or other manual assistance. The task took him approximately six hours, from 8.00am to 2.00pm without any break.[11]
[10]Exhibit A, affidavit sworn 3 March 2014 at paragraphs 14 and 17, Plaintiff’s Court Book (“PCB”) 9 – 10
[11]Exhibit A, affidavit sworn 3 March 2014 at paragraph 19, PCB 4
23 The plaintiff alleges that, as a result of performing this task, “my back was killing me”.[12]
[12]Exhibit A, affidavit sworn 3 March 2014 at paragraph 20, PCB 10
24 On 30 November 2010, the plaintiff attended general practitioner, Dr Alexander Chan. The plaintiff alleges he had not previously consulted Dr Chan as he had only moved to Newport a year or so previously. Dr Chan was his general practitioner from that time on.
25 In early December 2010, the plaintiff completed a Claim for Compensation in respect of his back injury, which was accepted.[13]
[13]Exhibit A, , affidavit sworn 3 March 2014 at paragraph 22, PCB 11
26 Since that time, the plaintiff was treated by a number of specialist practitioners and was prescribed “a lot of different medications, including Mobic, Panamax, Panadeine Forte, Tramal, Tramadol, Endep, Amitriptyline, Cymbalta and Mersyndol Forte.”[14] However, because he developed problems with his stomach, by 2014 he was only taking Panamax “from time to time, as this does not affect my stomach, but it is only of limited help in controlling my back pain”.[15]
[14]Exhibit A, , affidavit sworn 3 March 2014 at paragraph 30, PCB 12
[15]Exhibit A, , affidavit sworn 3 March 2014 at paragraph 31, PCB 12
27 The plaintiff did not return to work with the defendant after 29 November 2010 as there were no suitable light duties available. He received weekly payments of compensation before he was able to obtain a job as a laboratory clerk at St Vincent’s Hospital in mid-2011. He stated:
“I found the very work (sic) difficult, as it was data entry and I was not allowed to stand up and stretch my back whenever I wanted. I only lasted for two to three months before I had a flare up of pain while on probation, and I ended up losing my job.”[16]
[16]Exhibit A, , affidavit sworn 3 March 2014 at paragraph 42, PCB 14
28 Thereafter, in around the middle of 2012, the plaintiff started his own business called “Dino Fix Building Maintenance”. He states this was a general handyman business which he ran as a sole trader. He alleges that he tries to do handyman tasks which are within his physical limits, which might include painting, tiling or repairs, but he avoids larger jobs.[17]
[17]Exhibit A, affidavit sworn 3 March 2014 at paragraph 44, PCB 14
29 The plaintiff alleges he works up to five short days and around 20 to 25 hours per week. He charges his customers $30 per hour and does not make the same amount of money as he did working for the defendant. He states:
“It takes me longer to complete jobs as I am incapable of working full days because of my back. I can’t earn a full-time wage.”[18]
[18]Exhibit A , affidavit sworn 3 March 2014 at paragraph 44, PCB 14
30 Because of his back condition, the plaintiff alleges:
“I can’t do bigger jobs and grow my business which is disappointing to me and puts financial pressure on me.”[19]
[19]Exhibit A, affidavit sworn 3 March 2014 at paragraph 46, PCB 14-15
31 In his second affidavit sworn 23 September 2015, the plaintiff alleges that he applied for and received Centrelink payments in or around July 2014, which supplements the income that he is able to earn through running his own business.[20]
[20]Exhibit A, affidavit sworn 23 September 2015 at paragraph 26, PCB 20
32 In the latter affidavit, the plaintiff alleges:
“On average, I work 3 days per week for approximately 5 hours per day. My job varies in nature, but I predominantly do landscaping and painting jobs. My back restrictions have made it that I work a lot less productively. For instance, it takes me 8 hours to complete a task that should only take me between 5 and 6 hours previously. The restrictions in my back have also meant that I have had to turn down many jobs. I am currently under a significant amount of financial pressure to meet my financial commitments and obligations. Prior to my injury, money was not an issue for me.”[21]
[21]Exhibit A, affidavit sworn 23 September 2015 at paragraph 27, PCB 21
33 Further, the plaintiff stated:
“Since my back injury, I have suffered from a lot of stress and anxiety. I am concerned about the unknown and what will happen to me into the future”.[22]
[22]Exhibit A, affidavit sworn 23 September 2015 at paragraph 28, PCB 21
Pre-existing impairment
34 There is no doubt the plaintiff received extensive conservative treatment for a lower-back condition from his, then, general practitioner at Eastbrooke Family Clinic in Lincolnville between September 1997 and September 2007.[23] During this time, he swore that he experienced episodes of back pain which would, at times, require him to take medication, consult his general practitioner and have physiotherapy treatment. However, he swore that when he left Melbourne Pathology, he found that his symptoms improved and that by the time he started work with Cram and Beston Skilled Labour Hire Pty Ltd, the defendant, he believed that he had fully recovered from his previous problems and was able to return to full-time heavy work without any ongoing treatment.[24]
[23]Exhibit 6
[24]Exhibit A, affidavit sworn 3 March 2014 at paragraphs 8 and 9, PCB 8
35 Defence counsel tendered the records from the Eastbrooke Family Clinic between 18 September 1997 and 5 September 2007.[25] On 24 January 2007, the plaintiff’s general practitioner has noted:
“Lower Back Pain: Review
Due to return to Melb Path on 3 Feb, but has resigned, given 4 weeks notice.
Claim will stop then.”[26]
[25]Exhibit 6, extracts Eastbrooke Family Clinic reports
[26]Exhibit 6, extracts Eastbrooke Family Clinic reports
36 Finally, on 12 April 2007, it is noted:
“Lower-back pain: medical Report provided.”[27]
[27]Exhibit 6, extracts Eastbrooke Family Clinic reports
37 Thereafter, there is an attendance on 5 September 2007 for an unrelated matter.
38 Perhaps, of relevance, are the following entries:
(a) 12 May 2006:
“Lower-back pain: Has gone part time.
Feels happier now that he has gone part time.
Certificate altered to accom[m]odate this fact.”
(b) 30 March 2006:
“Lower-back pain: Review
Seems more positive overall.
Had an interview with new job.
No grief from employment.
Gym – 5 times a week, core work, treadmill.”
(c)5 October 2005:
“Lower Back Pain: Review
Is responding more to physiotherapy with forward flexion.Is still having issues with WCover –thinking of having physio dropped.”
(d)12 September 2005:
“Lower Back pain: Had CT guided injection on Friday
Pain slowly improving after injection.Woke up Sunday, no pain.”
(e)23 March 2005:
“Lower-back pain: Bone scan is normal
Work situation is improving, is using a lumbar support for lumbar spine chair at work.
Having 30 minute stretch physio going well.Endep is relieving pain reasonably well at the moment.”
(f)16 March 2005:
“… Long discussion the other day with the physio regarding CT result ?wedging at T12.”
(g)10 March 2005:
“Lower-back pain: Review of CT scan – again
Discussed with physio, concerned re small amount of wedging at 11/T12/L1. Not tender in these areas.”
(h)3 March 2005:
“Lower Back Bain: CT scan – shows small central L4/5 disc prolapse, no impingement of nerve roots.”[28]
[28]Exhibit 6, extracts Eastbrooke Family Clinic reports
39 Under cross-examination, the plaintiff agreed that he continued to suffer from ongoing pain after 1997 “Until 2008, I think”.[29]
[29]T14, L23-24
40 Further, he was asked:
Q:“Since you suffered the pain in late 2000, I suggest that the pain has continued since that time to interfere with activities in your private life?---
A:That’s correct.
Q:Some of those activities involve sporting activities?---
A:That’s correct.
Q:Some of those activities relate to problems that you have performing duties of work?---
…
A:That’s correct.”[30]
[30]T16, L19-30
Post-injury impairment
41 The plaintiff has been unable to return to his pre-injury employment and all medical practitioners support him in this assertion. Video surveillance taken of him on 30 May 2014 shows him performing tasks consistent with his own business. For example at 10.36am, he is wearing gardening gloves and is later seen pruning tree branches, kneeling down on the footpath outside the fence to weed along it, bending forward, standing easily to move along and kneel and bend to do further weeding. He is also observed at 10.53am sweeping and bending to collect weeds and branches before moving inside the property. Later, at approximately 12.06pm, he seemed to be working freely and, at 12.13pm, he is stacking his utility with items and at 12.15pm, he is seen to be pushing them down. He agreed, in cross-examination, that the activities were consistent with showing no pain. However, in my view, the video surveillance is not inconsistent with the activities the plaintiff had deposed to in his first affidavit referred to above.
42 The plaintiff conceded that his back condition during the period 2000 and 2007 did affect his sporting life. He stated that it affected him a lot because he enjoyed playing sport.[31] However, he stated he did get back to some indoor football, indoor cricket and running prior to 2008.[32] In particular, he stated he was running nearly 5 kilometres per day in the period 2008 – 2009.[33] Further, he was lifting weights in the same period every second night, “but it all depends on my day, how my day is, because sometimes I do get tired during the day”.[34]
[31]T114, L23
[32]T114, L24-27
[33]T115, L21-26
[34]T116, L13-14
43 As to his pain and suffering, the plaintiff swore as follows:
“I experience constant pain in my back, although it varies in intensity. I would say that he pain is generally at a 7/10 level, and it can go as low as 5/10. I do my best not to think about the pain, and try to stay as active as possible. I no longer have pain down my legs, but I experience tightness and restlessness in my right leg. It is hard to describe, but it feels like the nerves in my leg become tight.
The pain I experience affects my day to day life. I can generally only sit for around 30 to 60 minutes, before I need to get up or adjust my position. This makes long distance driving difficult; for example, if I have to drive for two hours, I would usually need to stop twice to have a break and stretch my back. I have relatives in Adelaide, but my back problem restricts my ability to drive there.
As I stated previously, I love movies, and I used to enjoy going out for dinner and watching a movie. I would go up to three or four times a week, either with my partner or a friend. This is now difficult for me, as most movies go to 1.5 or two hours, and it is difficult to stand up and stretch in a movie theatre.
I can stand for around an hour, before the pain in my back starts to increase. If I need to stand for prolonged periods, I find it helps if I can move around.
I can probably walk for an hour or so before my back becomes tight and my pain increases, but I am no longer able to run, as I can feel this jolting my back. I used to do a log of running, usually five nights a week after work, and five kilometres each time. It was my main way of staying fit. I also used to lift weights at home, but now my exercise is restricted to walking on a treadmill and ding stretches.
Because of my back pain, I have reduced movements of my back. Bending forwards, I can only reach my knees, and arching my back also causes increased pain. Side to side movements, however, are less painful.
My doctors have not given me an specific limits on lifting, but have told me to try to be careful and sensible about this.
Domestically, my partner did most of the housework, including mowing the lawns. It is embarrassing to talk about, but our physical relationship suffered since my back injury, as sexual activity tended to aggravate my back. That relationship has now ended in part because of the impact of my injury.
My sleep continues to be affected by my back injury. I tend to move around in bed at night and this causes an increase in my pain, which makes it difficult to fall asleep and which can also wake me up. When I need help sleeping, I take two tablets of Panamax, usually around three nights each week. I think I have more pain at night because during the day I am at least able to stay mobile. When I wake up in the mornings, my back will feel stiff and tight and this improves when I start moving.”[35]
[35]Exhibit A, affidavit sworn 3 March 2014, paragraphs 33 to 41, PCB 12-13
44 In his second affidavit, the plaintiff swore as follows:
“On a day to day basis, I continue to experience ongoing pain. The pain varies in intensity and my pain levels vary throughout the course of the day. Generally speaking, when I wake up in the morning and before I sleep at night, my pain is about 9 out of 10. During the day, my pain is about 7 out of 10. Usually I suffer from more intense pain in the mornings and in the evenings.
Since my first affidavit, the duration for which I am able to sit without aggravating my back pain has reduced. Currently, sitting for more than 30 minutes at a time aggravates my back pain.
My difficulty with sitting for more than 30 minutes at a time has restricted my ability to do many things. For instance, where possible, I restrict myself to travelling to locations that do not require more than 30 minutes of travel time. On the occasions when I am required to drive for more than 30 minutes, I usually stop the car at approximately 30 minute intervals so that I can get out of the car for a break and stretch.
Over the past 12 months, I have attempted to watch a movie at the cinema on approximately 3 occasions. I continue to struggle to sit through the length of a movie without paying for it later with increased back pain. When watching TV at home, I get up at approximately every 30 minutes before my back stars getting tight and sore.
At times, I have had to refuse dinner plans with friends as I would not have been able to sit at the dinner table for the entirety of the meal. This has affected my relationships with my friends and resulted in a lot of social isolation.
Similarly, the duration for which I am able to walk before feeling tension and tightness in my lower back has also reduced since my first affidavit. At the moment, I avoid walking for more than 30 minutes at a time to prevent aggravation of my back symptoms.
As with my first affidavit, I continue to not be able to participate in any physically demanding activities. I have not been able to play any sports, including indoor cricket and football. This is something I miss a lot.
I continue to not be able to run and lift weights to keep fit. Since my first affidavit, Dr Chan has imposed lifting restrictions of lifting no more than 15kgs at a time.
Most of the housework is currently shared between me and my partner, Michelle. Michelle usually does the more physically demanding tasks such as the vacuuming and mopping. On the occasion when I have done the vacuuming and mopping, I have had to pace myself and do it for 10 minutes at a time before taking a short break. Fortunately, my current house does not have any lawn so I have not had to worry about mowing lawns. Michelle and I usually do the washing and grocery shopping together.
My relationship with Michelle has been ok. However, we continue to struggle with sexual intimacy due to my back restrictions.
On most nights, I struggle to fall asleep as I find it very difficult getting comfortable in bed. On average, I fall asleep at around 1am each night. Throughout the evenings, I continue to suffer from disturbed sleep as a result of the pain that I experience. Usually, I am only able to get between 4 and 5 hours of uninterrupted sleep before being woken up from the pain.”[36]
[36]Exhibit A, affidavit sworn 23 September 2015 at paragraphs 15-25, PCB 18-20
Post-injury treatment
45 The plaintiff attended his general practitioner the day after injuring his back. Dr Chan first reported on 14 November 2011 and stated that the plaintiff complained of pain in the lower back with radiation down the posterior aspect of his left thigh. Examination showed restricted straight leg raising to 80 degrees on the right side and 60 degrees on the left side. Femoral stretches were positive on both sides.[37]
[37]Exhibit F, PCB 36
46 On 4 December 2010, the plaintiff was prescribed an anti-inflammatory, Mobic, and an analgesic, Panamax. A CT scan dated 7 December 2010 showed a diffuse bulging disc at L4-5, causing an impression upon the anterior aspect of the thecal sac. There was also a little calcification of a mildly bulging disc material to the left of the midline of L5-S1.
47 Dr Chan reported that, despite physiotherapy, pain in the lower back remained significant, with straight leg raising deteriorating to 15 degrees on both sides by 9 December 2010.
48 In late January 2011, the plaintiff had been unable to obtain any meaningful relief. Straight leg raising remained at 15 degrees on both sides and “there was much muscle spasm in the lower back”.[38]
[38]Exhibit F, PCB 36
49 Dr Chan then recorded that the plaintiff was able to find a job, and returned to full-time work in August 2011. He was said to be managing, despite the pain level being the same as before. However, in late September 2011, his back pain flared up while he was sitting, but he could not remember any aggravating factor. He also noticed pain radiating down his right leg and pain when turning in bed at night. Straight leg raising was only 5 degrees on both sides, and there was significant muscle spasm in the lumbar region, on the right more than the left. Once again, the plaintiff was prescribed Mobic and Mersyndol Forte, and physiotherapy was recommenced.[39]
[39]Exhibit F, PCB 37
50 When seen on 11 November 2011, the pain level averaged 7 out of 10; however, the plaintiff was thinking of setting up a home maintenance business.
51 Dr Chan considered, at that stage, that the plaintiff’s back condition would prevent him from carrying out any heavy activities, such that he would have to avoid any heavy lifting, bending and twisting of his back, prolonged standing or prolonged sitting. He would also need to continue with strengthening exercises for his back, as well as for general wellbeing.
52 The plaintiff was referred to orthopaedic surgeon, Mr Jonathan Hooper, in February 2011 and he, in turn, reported on 29 November 2011.[40] He recorded a history, which included the obtaining of a computer job at St Vincent’s Hospital in 2011, however:
“… he was unable to cope with this due to a flare-up of his back pain and he resigned from his job. He said he could not cope with sitting for eight hours a day.”[41]
[40]Exhibit J, PCB 58
[41]Exhibit J, PCB 58
53 However, the plaintiff advised Mr Hooper that he intended to go into the home maintenance business “where he feels he can cope. He can work at his own pace and alter his position periodically according to his discomfort.”[42] It was Mr Hooper’s opinion that:
“This man hurt his back in a work incident in November, 2010. He has evidence of disc pathology. He is presently managing conservatively, although if his back deteriorates with time it may need to be further investigated. He will have a permanent disability in terms of low back pain and some leg pain which will prevent him participating in heavy work or vigorous games.”[43]
[42]Exhibit J, PCB 58
[43]Exhibit J, PCB 59
54 Mr Hooper obtained an MRI report dated 12 March 2011.[44] Relevant findings were as follows:
[44]Exhibit E, PCB 33-4
“L4/5:
There is mild disc desiccation and loss of height and a broad based disc protrusion with circumferential annual tear. Small extrusion extending down posterior to L5 in the midline. Protrusion is mildly indenting the thecal sac and mildly compressing the left L5 nerve roots as they exit from the sac.
L5/S1:
“There is mild disc desiccation. Mild broad based disc protrusion posteriorly but this does not extend to the level of the thecal sac. Second protrusion into the right intervertebral foramen mildly compressing [the] L5 nerve.
CONCLUSION
Mild degenerative changes affecting the lower 2 lumber discs. Mild impingement on the L5 nerve roots at L4/5. Mild compression of the right L5 nerve and L5/S1.”[45]
[45]Exhibit E, PCB 33
55 Dr Chan referred the plaintiff to occupational health and rehabilitative consultant, Dr David Middleton, who reported on 14 March 2012.[46] He was first seen on 22 June 2011 and, thereafter, in August 2011, 13 September 2010 and 2 February 2012. His diagnosis was one of:
“… a straining and aggravation of his previously asymptomatic degenerative lumber spine disease. This resulted in the development of lumbar instability and chronic pain due to the failure of an adequate recovery. The underlying instability has now been addressed, however there is still ongoing pain due to the aggravation of the underlying degenerative disease of the lumbar spine which in time should continue to reduce subject to the provision of ongoing gym and swim based exercise program.”[47]
[46]Exhibit K, PCB 60-65
[47]Exhibit K, PCB 64
56 The long-term prognosis at that stage was guarded –
“… as there is still a significant underlying level of pain, which will only be improved with the support of an ongoing long term exercise program.”[48]
[48]Exhibit K, PCB 65
57 The plaintiff was also referred by his general practitioner to musculoskeletal pain medicine specialist, Dr Steven Jensen, who first saw him on 8 March 2011 and reported on 16 December 2011, 30 March 2012, 28 June 2012 and 7 October 2015.[49] It was Dr Jensen’s opinion that the plaintiff was suffering from–
“… mechanical lumbosacral spine dysfunction but now with significant psychosocial distress as evidenced by his non-organic signs.”[50]
[49]Exhibit H, PCB 41-52
[50]Exhibit K, PCB 50
58 As to the plaintiff’s prognosis, Dr Jensen stated:
“It is well recognised that the prognosis for back pain in compensable situations where there is significant psychosocial distress is generally poor. I feel this would be applicable in this situation.
It is also well recognised in the medical literature that the major drivers of this poor prognosis are psychosocial factors rather than physical organic factors.”[51]
[51]Exhibit K, PCB 43
59 Dr Jensen was alone amongst the plaintiff’s treating practitioners who took that view.
60 As to the radiological investigations, Dr Jensen recorded:
“I did view a CT scan of his lumbar spine dated 7 December 2010. I felt the most prominent finding here was that of an extruded disc prolapse at L4-5 that was migrating superiorly and quite visible on the sagittal views. I felt this was causing some impression upon the thecal sac. There was some evidence of disc bulging at L5-S1 with some associated calcification of disc bulge centrally and to the left of the mid line, suggestive of previous healed disc prolapse. There was no nerve root encroachment at any level.
I note the report of the CT scan did report ‘no free disc fragment is demonstrated within the spinal canal.’ I disagreed with this report.
I subsequently viewed an MRI scan performed at St. Vincent’s Hospital radiology on 12 March 2011. This did report modic changes of the L5-S1 disc and also a small central bulge at L4-5 with a high intensity zone. I could not see evidence of the extruded disc on this MRI scan, suggesting if it was present it had resolved.” [52]
[52]Exhibit K, PCB 43
61 In any event, Dr Jensen reported to the worker’s compensation insurer on 13 March 2012, wherein he disagreed with their independent medical examiner, Dr G Graham, wherein it was suggested that the facet joints may be the site of the pain. He provided reasons for his disagreement with Dr Graham.[53] Of note, however, he stated:
“Based on the above information I would, therefore, hereby like to formally request that you accept liability for this man to undergo caudal epidural injection in my consulting rooms … as a first intervention.
The worker will be given a visual analogue pain chart following this injection so we can better ascertain its true effect. Further management strategies will be formulated once we have the outcome of that specific intervention.”[54]
[53]Exhibit K, PCB 45
[54]Exhibit K, PCB 45-6
62 In a follow-up report to the insurer dated 28 June 2012, Dr Jensen stated:
“I am in receipt of your correspondence dated 21 June 2012 where in you have requested some brief comments pertaining to whether or not I felt this worker’s medical condition had stabilised.
I believe that overall this man’s condition is unlikely to significantly improve by more than 3% impairment in the next year with or without medical treatment.
Taking into account his definition, I therefore believe that for the purposes of his level of impairment to be assessed, his condition can be considered to be stable.”[55]
In my view, these last two reports are consistent with an opinion by Dr Jensen that there is an ongoing physical basis for the plaintiff’s complaints of pain.
[55]Exhibit K, PCB 47
63 Finally, Dr Jensen reported on 7 October 2015, this time to the plaintiff’s solicitors. Therein, he recorded his original opinion that the prognosis was poor based on a combination of persistent back pain, significant psychosocial distress and a compensable scenario. However, he noted the plaintiff had a –
“… capacity for modified work duties whereby he should refrain from prolonged sitting and also repetitive bending, lifting, twisting or stooping and any heavy manual activity.”[56]
[56]Exhibit K, PCB 48
64 Once again, these restrictions, in my view, are consistent with ongoing physical injury.
65 In any event, Dr Jensen further reported:
“I did see this man again following [a pain management] programme on 20 February 2012. He told me he particularly enjoyed the psychological component of that programme. He told me he thought his back was better for the experience. He was continuing the exercises he had been prescribed.”[57]
[57]Exhibit K, PCB 48
66 Dr Jensen further recorded he administered a caudal epidural injection on 20 June 2012. He reported some temporary improvement in the plaintiff’s referred right leg pain as a result thereof.
67 Dr Jensen then re-conferred with the plaintiff on 4 May 2015. He took a history that the low-back pain was the same, but things were getting worse. On examination, Dr Jensen noted:
“I do note that there was a marked improvement in his non-organic signs, which were nowhere near as florid on this examination as compared to previous occasions.
Examination on this occasion revealed a co-operative man with a slight limp … He had bilateral positive slump test for his back pain but no leg pain.
He had tenderness to palpation through his lumbar spine spreading into the sacroiliac joint region. There was some increased paravertebral muscle tone noted to palpation. It was noted that neurologically he was intact but I did measure his thigh circumferences and noted that his left thigh was 1.5cm less than the left. Calf circumferences were equal.”[58]
[58]Exhibit K, PCB 49-50
68 Dr Jensen reported on a lumbar spine MRI scan dated 3 August 2015 to the following effect:
“This noted significant degenerative changes in the lower three intervertebral discs as described … It was also noted that there was a small right L5-S1 disc protrusion causing mild effacement of the exiting right L5 nerve root. Mild degenerative change was noted in the sacroiliac joints and also in the lower lumbar facet joints.”[59]
[59]Exhibit K, PCB 50
69 On this occasion, Dr Jensen expressed the opinion that the plaintiff “was still suffering from mechanical lumbosacral spine dysfunction”.[60] On this occasion, he was not opining that there was a psychological exaggeration. He reported:
“My feeling at present is that his pain is more consistent with discogenic quality pain and, therefore, I do not perceive there would be any significant yield from injecting his sacroiliac joints.
We did prescribe the tricyclic anti-depressant medication, Nortriptyline (Allegron) two at night. This is used for pain modulating effect and also the fact that it can improve sleep quality in persistent pain states. He remains on this medication.”[61]
[60]Exhibit K, PCB 50
[61]Exhibit K, PCB 50
70 As to prognosis, Dr Jensen stated:
“You have also asked for an assessment as to his long term prognosis. I believe this remains poor. I do believe that given the persistence of his pain despite numerous conservative measures it is highly unlikely his condition will change to any significant degree for the foreseeable future.”[62]
[62]Exhibit K, PCB 50
71 Further, Dr Jensen thought that workplace restrictions have not changed from his earlier report. He stated:
“He would have difficulty with prolonged sitting. He also would have difficulty with any heavy manual tasks, particularly of a repetitive nature. He would also have difficulty with any recurrent bending, twisting, lifting, carrying or stooping activities. I feel it unlikely this scenario would change for the foreseeable future.”[63]
[63]Exhibit K, PCB 50
Medico-legal assessments
72 The defendant had the plaintiff examined by occupational physician, Dr James Rowe, on 4 April 2011 and he reported on the same day.[64] Dr Rowe confirmed a previous history of back pain more than ten years ago, which he considered not relevant to this claim. The plaintiff had not been back to work since November 2010, and although he had been told he could return to some form of light or modified duties, there was no such work available with the defendant.
[64]Exhibit 3, Defendant’s Court Book (“DCB”) 10-15
73 Dr Rowe confirmed the CT scan of 12 March 2011 reported there was mild degenerative change in the lower two discs with some impingement of the nerve roots at L4-5 and compression of the right L4-5 nerve root at L5-S1.[65] Dr Rowe took a past history of the plaintiff having suffered with back pain on two occasions in about 1996 and the year 2000. The plaintiff has had occasional backache since, but not as severe as on this occasion. Without providing a definitive diagnosis, Dr Rowe stated the plaintiff had suffered back injury which had not resolved and that his work had continued to be a contributing factor to his condition. He also stated it was appropriate he continued to be treated conservatively and that, otherwise, he would never return to his pre-injury duties and he needed occupational rehabilitation.[66]
[65]Exhibit 3, DCB 11
[66]Exhibit 3, DCB 15
74 Thereafter, on 20 August 2012, the defendant had the plaintiff examined by orthopaedic surgeon, Mr Michael Shannon, who reported on 24 August 2012. However, it was the plaintiff who tendered the report in evidence.[67] Mr Shannon took a consistent history and recorded:
“He is taking analgesic and antidepressant medication as well as sleeping tablets and anti-inflammatories.
Currently he is trying to avoid strong analgesics.
He states that he started his own Handyman business in October, but is not getting much work through this.”[68]
[67]Exhibit O, PCB 92-100
[68]Exhibit O, PCB 93
75 On examination, Mr Shannon noted restrictions in movements, but stated:
“He does have positive Waddell signs suggesting a non organic component.”[69]
[69]Exhibit O, PCB 94
76 However, after noting the radiological investigations as already recorded, Mr Shannon stated:
“[The plaintiff] clearly has a long history of mechanical back pain dating back at least to 1997 and associated with a fairly long term WorkCover claim whilst employed at Melbourne Pathology.
It does appear however, that he made quite a good recovery from that injury and indeed the fact that he was working as a Plumber’s Labourer would suggest that his symptoms were few at the time that he sustained his injury in November, 2010.
The incident would be regarded as an aggravation and possibly acceleration of underlying degenerative change, but there does not appear to be any major new pathology identified in that the CT Scan appearances are fairly similar to the pre-injury Scans, although an MRI Scan being more sensitive has shown an annular tear.
I cannot exclude however, that employment with Beston Skilled Labour Hire has altered his level of impairment and although he has improved somewhat since the original injury in 2010, he does have ongoing symptoms, restriction of movement and spasm, although there are some non organic features to his presentation.”[70]
[70]Exhibit O, PCB 95-6
77 Thereafter, the defendant chose to have the plaintiff assessed by occupational physician, Dr Michael Baynes, who reported on 25 October 2012.[71]
[71]Exhibit 1, DCB, 3-8
78 As to the nature of the injury, Dr Baynes reported:
“[The plaintiff] is suffering from a chronic pain syndrome associated with chronic lower back pain and occasional referred pain to the right leg. This is in association with degenerative change to the lower two lumbar discs with mild impingement of the L5 nerve root at L4/5 and L5/S1. There was some evidence of impingement of clinical examination.”[72]
[72]Exhibit 1, DCB 5
79 Importantly, he opined:
“I believe employment continues to contribute to the worker’s condition with the worker reporting ongoing pain and limitation of function.”[73]
[73]Exhibit 1, DCB 5
80 As to the presence of any non-work-related factors, Dr Baynes stated:
“Non-work-related factors would include pre-existing age-related degenerative change
…
[But] These have not overtaken employment as the most pertinent factors at this point.”[74]
[74]Exhibit 1, DCB 5
81 Importantly:
“… the worker cannot return to pre-injury duties due to ongoing back pain and limitation of function”.[75]
[75]Exhibit 1, DCB 6
82 Dr Baynes considered that the plaintiff had a capacity for alternative duties where there was no lifting greater than 7 kilograms and no lifting from below knee height or above shoulder height. He should also be able to frequently change his postures and rotate tasks.[76] Finally, Dr Baynes stated that the best practice for the management of the plaintiff’s condition included a self-managed exercise program where he has a gym at home and simple analgesia. The current treatment regime was in line with best practice.[77]
[76]Exhibit 1, DCB 7
[77]Exhibit 1, DCB 7
83 The plaintiff then tendered the second report of Mr Dooley, which had been reported to the defendant’s solicitors on 11 June 2014.[78] Importantly, Mr Dooley reported as follows:
[78]Exhibit P, PCB 101-105
“[The plaintiff] has noted becoming stressed and depressed in time. Most people will experience varying degrees of anxiety and depression following sudden changes in their lives, e.g. acute illness, acute injury, relationship breakdown, etc. Most of us are creatures of habit and routine and when our routine is significantly disrupted for a prolonged period of time, most of us will decompensate in various ways. I am of the view that Mr Perrone’s psychological reaction to his situation is influencing his ongoing symptoms. This is not unexpected and overall I do not believe that Mr Perrone’s psychological condition influences his ongoing symptoms too an excessive degree.” [79]
As to his current condition, Mr Dooley noted that the plaintiff tried to avoid analgesic medication and that his handyman-type work involved light physical work. Importantly, he considered that the injury the plaintiff sustained during his employment in 2010 continued to materially contribute to his current condition.[80]
[79]Exhibit P, PCB 103
[80]Exhibit P, PCB 104
84 The defendant then tendered Mr Dooley’s final report dated 7 October 2015.[81] In this report, he noted that he had viewed attached surveillance DVDs. Apparently, he was asked to comment further. He replied:
“As you know, it is my view that in the work related episode of November 2010 Mr Perrone aggravated underlying degenerative dis disease of the L5/S1 level. He has described persisting pain. On clinical examination it was my view that the constancy and intensity of Mr Perrone’s ongoing pain and his described disability were greater than I would expect to see for his organic condition. In the second DVD, Mr Perrone is noted to be carrying out his handyman/gardening type work. It shows Mr Perrone bending to a right angle, i.e. around ninety degrees, manoeuvring bins etc. The DVD material would not cause me to change my diagnosis in relation to Mr Perrone’s injury but it does show that in my view Mr Perrone is capable of working as a handyman/gardener and capable of carrying out a wide range of at least light physical type work.”[82]
[81]Exhibit 2, DCB 9
[82]Exhibit 2, DCB 9
85 Finally, the defendant had the plaintiff examined by consulting psychiatrist, Dr Stephen Stern, on 12 November 2012.[83] Dr Stern considered that the plaintiff had suffered a work injury to his lower back on 29 November 2010. He considered he was depressed initially, but this resolved after attending rehabilitation at Life Care during 2011 (I note this is consistent with the view of Dr Jensen). He has been left with constant lower-back pain, but has now adjusted normally. There is no current psychiatric disorder.[84]
[83]Exhibit 4, DCB 16-22
[84]Exhibit 4, DCB 19
Findings
86 The common thread of all medico-legal examiners who have assessed the plaintiff is that at the workplace accident on 29 November 2010, the plaintiff suffered an aggravation of pre-existing degenerative change in his lumbar spine at L4-5 and L5-S1.
87 The aggravating injury rendered symptomatic, a degenerative condition that had been quiescent probably up to a year prior to the commencement of his employment with the defendant in 2008 and during heavy work with the defendant up until some time in 2010.
88 There has been no recovery from this aggravation injury to the extent that the plaintiff is fit to return to his pre-injury heavy work. This impairment is permanent.
89 The plaintiff has been able to return to a lighter form of work as a self-employed handyman. The surveillance material is consistent with his affidavit evidence in paragraphs 44 and 45 of his first affidavit and paragraphs 26 and 27 of his second affidavit.
90 In the witness box, the plaintiff was extensively cross-examined, but he impressed me as being essentially a witness of truth who was endeavouring to answer the questions honestly. I accept that he has suffered the ongoing pain and restrictions attested to in his affidavit and corroborated by his partner, Ms Maglitto, and his friend, Mr Dodd. In my view, the totality of the consequences suffered as a result of the aggravation injury on November 2010 can, when judged by comparison with other cases in the range of possible impairments, be fairly described, as at the date of hearing, as being “more than significant or marked” and as being “at least very considerable”.
91 As a result, leave will be granted to the plaintiff to issue proceedings at common law for pain and suffering damages arising out of a workplace incident on 29 November 2010.
92 I will hear the parties as to any consequential orders.
---
0
4
0