Peter v Victorian WorkCover Authority
[2025] VCC 74
•10 February 2025 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-03037
| JOSEPH PETER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2025 | |
DATE OF JUDGMENT: | 10 February 2025 (ex tempore) | |
CASE MAY BE CITED AS: | Peter v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 74 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering only – causation – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 ; Johns v Oaktech Pty Ltd [2020] VSCA 10; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: Leave granted to commence a proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer with | Zaparas Lawyers |
| Ms A Richwol | ||
| For the Defendant | Mr B McKenzie | IDP Lawyers |
HIS HONOUR:
1Joseph Peter is a chef, who was sixty when he injured his lower back in the course of his duties as a chef at Cabrini Hospital, Brighton (“Cabrini”) on 17 July 2017. He is now performing much lighter duties over thirty-five hours a week with a different employer.
2Mr Peter seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation Act Compensation Act 2013 (“Act”) under paragraph (a) of the relevant definition of “serious injury” for pain and suffering consequences, being for the permanent serious impairment or loss of a body function. The body function relied upon is the lumbar spine.
3There are two issues for the Court to determine on this application. Firstly, whether his current medical condition relates to his work injury on 17 July 2017 or, alternatively, his underlying degenerative spinal condition. Secondly, if Mr Peter suffers from an ongoing compensable injury, are the consequences of that injury “serious”.
Legal principles
4Mr Peter bears the onus of demonstrating his impairment is permanent and the consequences are serious. He must establish the consequences to him, with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as “being at least very considerable” and certainly more than “significant or marked” in accordance with the narrative test set out in ss325(2)(a), (b) and (c) of the Act.
5The seriousness of an impairment is determined by whether the pain and suffering and loss of enjoyment of life consequences, including any pecuniary disadvantage consequence, “when judged by comparison with other cases in the range of possible impairments or losses, (can) be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[1]
[1] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
6In Haden Engineering v McKinnon,[2] the Court of Appeal stated:
[2] (2010) 31 VR 1 (“Haden Engineering”)
“The experience of pain
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
…
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
● sleep;
● mobility;
● cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
● capacity for self-care and self-management;
● performance of household and family duties;
● recreational activities;
● social activities;
● sexual life; and
● enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”[3]
(Footnotes omitted.)
[3] Haden Engineering at 4-5, paragraphs [10-12],and [16]
7The Court of Appeal in Ellis Management Services v Taylor[4] also stated:
[4] [2013] VSCA 326 at paragraphs [52[, [57] and [59]
“... After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.
…
The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.
…
The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors ... .”
(Footnote omitted.)
8Although the Victorian WorkCover Authority (“VWA”) concedes the pain and suffering consequences of the impairment of Mr Peter's lumbar spine are not trivial, I must be satisfied that they are “at least very considerable”. That assessment is informed by what is lost, but the significance of what has been lost may be informed to an extent by what is retained.[5]
[5] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
9As Maxwell P, in Haden Engineering, stated:
“As to capacity for work, it was necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff had been able to return to full-time employment did not preclude an affirmative finding of serious injury. It was simply one of the matters to be taken into account. … .”[6]
[6] Haden Engineering at 2, paragraph [6]
10As explained in Johns v Oaktech Pty Ltd,[7] in ‘serious injury’ applications the credit of the applicant is of great importance.
[7] [2020] VSCA 10
11I regard Mr Peter as being an honest and accurate witness. I accept both his oral evidence and what is contained in his affidavits. His evidence was tested carefully by counsel for the VWA, Mr McKenzie, but ultimately not challenged.
Background and medical history
12By way of background, Mr Peter is married to Rochelle, who also swore an affidavit in support of the application on 13 January 2015. They have two adult daughters. They grew up in Sri Lanka. He lived most of his adult life there, arriving in Australia in June 2013. Since completing school to Grade 10 equivalent, throughout his working life, Mr Peter always worked as a chef. His employment history includes a period of time as personal chef to the President of Sri Lanka.
13After arriving in Melbourne in 2013, he worked at the Southern Cross Hotel in the city in the morning and then Zagamis’ restaurant in Reservoir in the afternoon. He has never held a driver’s licence and took public transport to and from work.
14His employment at Cabrini as a chef commenced in August 2015, on a permanent part-time basis, twelve hours a week over two days. He would also pick up additional shifts at other Cabrini campuses. His work comprised making lunch and dinner for patients and service of those meals the following day. His duties involved:
(a) repetitive movements, like stirring, cutting, chopping, puréeing and plating up a large number of meals; and
(b) handling heavy and awkward items, such as pots of soup and food stock, in the process of preparation, which had to be lifted and carried to the coolroom or dry storage or other areas of the kitchen.
15On 17 July 2017, he attended his usual shift at Cabrini and cooked a very large pot of pumpkin soup. Once cooked, he lifted the pot off the stove and placed it on the floor. Using an industrial mixer, he puréed the soup. He then bent down, using his knees, and lifted the pot with two hands. As he was straightening up into a standing position, he felt extreme pain on the left side of his lower back. At the same time, he heard a cracking sound coming from the area of his back from where the pain was emanating.
16He saw a general practitioner, Dr Anthony Franklyn, the next day. In August 2017, he had an x-ray which disclosed:
“Minimal upper lumbar scoliosis convex to the left.
Mild anterior spondylolisthesis of L5 on S1 is seen, possibly due to bilateral L5 pars interarticularis defects. Otherwise lumbar alignment is normal. Disc and vertebral body heights are normal.
Minimal osteophytic lipping seen at multiple disc space levels.”[8]
[8] Plaintiff’s Amended Court Book (“PCB”) 33
17Mr Peter continued to see his general practitioner, and commenced physiotherapy on Dr Reza Ahmadi's recommendation (and under a care plan) with Mitchell Killick at MyPhysio. Physiotherapy did not improve his symptoms as much as he had hoped.
18In early November 2017, Mr Peter took two days off due to lower back pain. Dr Ahmadi arranged a CT scan of the lumbar spine on 11 December 2017, which disclosed:
“Degenerative anterolisthesis at L5-S1 with some narrowing of the L5-S1 neural exit foraminae due to bony factors which may involve the exiting L5 nerve roots. … .”[9]
[9] PCB 31
19The pain continued.
20On 1 October 2019, a further CT scan of the lumbar spine revealed advanced degenerative changes in the L5-S1 facet joint, with no focal disc protrusion.[10]
[10] PCB 30
21Despite further treatment, including physiotherapy, the pain in Mr Peter’s lower back worsened.
22In March 2021, he came under the care of Dr Aftab Aslam and was commenced on codeine. He was also prescribed Tramadol, but that proved ineffective.
23In late April and for most of May 2021, Dr Aslam certified Mr Peter as unfit for work. A further CT scan of the lumbar spine conducted on 23 April 2021 revealed:
“Moderate central canal stenosis at L5-S1 level.
Mild-to-moderate central canal stenosis at L3-4 and L4-5 levels.
Left L5-S1 foraminal stenosis.
No further significant central canal or foraminal stenosis demonstrated of the rest of the lumbar spinal region… .
Grade 1 anterior spondylolisthesis at L5-S1 level secondary to facet joint degenerative changes.
No destructive bony changes. No pars defect is seen.
Uncomplicated diverticulosis of the large bowel.
Prominent facet joint degeneration noted. Low dose CT guided facet joint steroid injection may be of therapeutic benefit.
Likely bilateral renal cysts. Circumaortic left renal vein is suspected.”[11]
[11] PCB 29
24An MRI scan of the lumbar and lower thoracic spine on 3 May 2021 showed multiple disc bulges and severe bilateral L5-S1 facet joint arthropathy.[12]
[12] PCB 26-27
25Mr Peter lodged a WorkCover claim on 5 May 2021, which was accepted. He was placed on light duties.
26Other treatment included a CT-guided nerve sheath injection on 27 July 2021.[13] He was referred again for physiotherapy; and prescribed amitriptyline from August 2021, which helped with his back pain.
[13] PCB 25
27On referral from Dr Aslam, Mr Peter saw orthopaedic surgeon, Mr John O'Brien, in February 2022, who suggested his work hours should be limited, and arranged for a further MRI scan of the lumbar spine.
28An MRI scan on 7 March 2022 disclosed a mild broad-based disc bulge at L5-S1, extending into the left foraminal region, contacting the exiting L5 nerve root and resulting in moderate left neural foraminal narrowing, with multilevel broad-based disc bulges.[14]
[14] PCB 23
29Mr O’Brien diagnosed a significant left-sided L5-S1 disc prolapse, associated with significant facet joint arthropathy, causing compromise of the S1 nerve root, which explains Mr Peter's severe leg pain.[15] I accept that diagnosis.
[15] Report dated 29 March 2022 at PCB 46
30Mr O'Brien advised Mr Peter to take time off work, and he ceased work at around this time. He continued with physiotherapy and also saw a psychologist.
31On 28 November 2022, Mr Peter had a second CT-guided nerve root injection.[16]
[16] PCB 22
32Mr O'Brien discussed surgery with Mr Peter, and explained this would be an extended process without any guarantee it would alleviate Mr Peter's pain. It is not in dispute Mr Peter declined surgery, or that this decision was anything other than reasonable.
33Mr Peter resigned from Cabrini on 14 March 2023 and ten days later commenced working as a chef at a YMCA early learning centre in Point Cook (“YMCA”) which is much closer to home. He presently works five days a week, seven hours a day.
34His current treatment involves regular consultation with Dr Aslam; weekly physiotherapy; Endep, 75 milligrams nightly; and he wears a back brace every day. He takes paracetamol and Panadol Osteo, and uses Voltaren Gel heat packs twice a week. His wife provides other support, including massage.
35His current duties at the YMCA are much easier than the work he did at Cabrini. He cooks for eighty-five children. The employer is supportive, aware of his back injury and has provided a chair in the kitchen. He works mostly while sitting. Mr Peter breaks up the sitting with short periods of standing, and does only minimal lifting of small items and supplies up to 3 kilograms. Other staff are able to perform heavier physical tasks in consideration of Mr Peter’s back injury.
Does Mr Peter’s current medical condition relate to the incident in July 2017?
36Mr Peter reported back pain to his GP once in the year before injury, which Mr Peter did not recall. Save for this, I accept Mr Peter had no lower back pain before the incident, and all the relevant consequences have arisen after his injury in July 2017.
37His general practitioner, Dr Aslam, diagnosed left-sided L5-S1 disc prolapse associated with joint arthropathy and S1 nerve root pain. In his report of January 2025,[17] he expresses no explicit view as to causation, although he supported Mr Peter’s WorkCover claim.[18]
[17] PCB 38
[18] PCB 60
38In terms of specific opinion as to causation, the Court has the benefit of the following reports.
39Physiotherapist, Mr Killick, states the cause of Mr Peter's lower back pain is an acute disc injury.[19]
[19] Report dated 3 December 2017 at PCB 41
40Mr O'Brien, treating orthopaedic surgeon from February to September 2022, took a history from Mr Peter of lifting a heavy pot of soup in the course of his work, which precipitated left buttock pain radiating down the left leg. He records that history in his report of November 2022 as follows:
“… In approximately August of 2017 Mr Peter stated that in the course of his work he lifted a heavy pot of soup, which he reported immediately precipitated left buttock pain which radiated down the posterior aspect of the left leg. Mr Peter reported that he consulted his local medical officer and underwent physical treatment which Mr Peter stated controlled the severity of pain allowing him to continue with his normal work.
Mr Peter however stated that approximately six months prior to presentation, he experienced increasingly severe left buttock pain radiating down the posterior aspect of the left thigh and calf to the ankle, which he reported was significantly aggravated by prolonged standing and walking. As a consequence, [Mr Peter] reported that his hours of employment had been decreased without any significant improvement in the severity of pain.
…
… The MRI undertaken on 07 March 2021 did in fact demonstrate a left-sided L5/S1 disc herniation compromising the left L5 nerve root. In addition, there was reported multilevel mild broad-based disc bulge.
…
On my last review, I did consider Mr Peter was suffering from a work‑related L5/S1 left-sided disc herniation. As a consequence, I considered [Mr Peter] was physically incapable of employment and due to his response to conservative treatment I felt [Mr Peter] was totally and permanently disabled.”[20]
[20] Report of Mr O’Brien dated 15 November 2022 at PCB 50-51
41In summary, Mr O'Brien accepts the work-related or compensable nature of the left-sided disc herniation.
42Consultant occupational physician, Dr Peter Wilkins, conducted an independent medical examination and reported his findings on 30 April 2022.[21]
[21] PCB 88
43Dr Wilkins was asked whether Mr Peter’s incapacity for work resulted from, or was materially contributed, by the claimed injury or incident which occurred on 17 July 2017. Dr Wilkins opined:
“In my opinion this is the case, I base the conclusion on the history related by Mr Peter and the results of the poorly reproduced imagery reports from 2021. His L5/S1 disc prolapse is obviously of longstanding, presumably originating in 2017 at the date of original injury.”
44In summary, Dr Wilkins' opinion also supports a finding that Mr Peter suffers from an ongoing compensable injury.
45In November 2024, medico-legal neurosurgeon, Dr Mohammed Awad, diagnosed a likely acute L3-4 disc prolapse, aggravation of lumbar spondylosis and likely intermittent left L5 radiculopathy.[22] In his opinion, the workplace environment as a chef has likely been a significant contributing factor to aggravation of his lumbar spondylosis:
“… In my opinion, his injury during his line of work as a chef in 2017 most likely remains the dominant contributing factor to his ongoing pain, disability, and requirement for treatment.”[23]
[22] Report dated 26 November 2024 at PCB 62
[23] PCB 57
46Dr Awad was then provided the reports of consultant orthopaedic surgeon, Dr Anthony Menz, to which I refer below. In a supplementary report, Dr Awad stated that Mr Peter’s presentation could be the natural history of the underlying degenerative spine. Nevertheless, he maintained his view that the aggravation of lumbar spondylosis is likely due to Mr Peter’s workplace environment, and that his heavy workplace environment, and the injuries sustained at work, have likely accelerated this degenerative process, such that he is now more symptomatic and requiring treatment.[24]
[24] PCB 60
47Dr Menz, in two reports to the VWA’s solicitors, sets out his opinion that Mr Peter’s current presentation is essentially the natural progression of an underlying degenerative condition in the lumbar spine; and that the injury is not compensable. In his first report dated 28 August 2024, he states the initial injury in July 2017 had largely settled:
“I do believe that Mr Peter's existing widespread spinal degeneration is the cause of his ongoing symptom. The episode of 17 July 2017 most likely aggravated the pre‑existing degenerative changes then, but to a large degree settled over the next four years allowing him to continue to work at Kilian Cabrini Hospital.
…
The initial injury of July 2017 would have caused a temporary exacerbation of his symptoms which should have resolved within three to six months.”[25]
[25] Report of Dr Anthony Menz, Defendant’s Court Book (“DCB”) 13 and DCB 22
48In a subsequent report dated 14 January 2025, Dr Menz sets out his review of the radiological investigations and comes to the conclusion that the injury of 17 July 2017 is not a “materially contributing factor” to Mr Peter’s current incapacity or impairment. He reported:
“… [Mr Peter’s] incapacity and impairment is solely related to the constitutional and significant degeneration of his lumbar spine, which has not been made worse by the moderate traumatic incident of 17.07.2017.
…
This man sustained a soft tissue injury to his lumbar spine lifting a pot of soup in July 2017 and the trauma from that incident would have resolved within three to six months easily. His ongoing symptoms which are significant, are solely due to the significant lumbar degeneration, which has progressed from being mild in 2017 to moderate to severe in 2024.
His significant lumbar degeneration is solely constitutional and the progression from 2017 to 2024 is the natural history of degeneration of his lumbar spine.”[26]
[26] DCB 29-30
49I reject Dr Menz's opinion. There is no evidence of any other trauma which might explain Mr Peter’s current condition. His opinion depends upon a finding or evidence that Mr Peter's injury had largely settled or “resolved within three to six months easily”.
50The clinical notes tendered at trial demonstrate an uninterrupted history of treatment and a progression of symptoms leading to Mr Peter ceasing work in March 2022. Mr Peter saw his general practitioner the day after the incident complaining of persistent lower back pain, without radiation. By August 2017, he was still complaining of lower back pain, including radiated pain in his left buttock. He made that same complaint when referred to Mr O'Brien in February 2022.
51Mr Peter’s treatment for the period from July 2017 to August 2024 is summarised in the attached schedule.[27]
[27] See Plaintiff’s chronology dated 10 February 2025
52The medical history is in stark contrast to the proposition advanced by Dr Menz that the injury had largely settled, and the two cannot sit together. Rather, the history shows the same disc injury at L5-S1 progressed over time, until Mr Peter was forced to cease work at Cabrini.
53I note the VWA’s admission that two occupational physicians examined Mr Peter at the request of the VWA or its agent:
(a) Dr Mpho Banda, occupational and environmental physician, who prepared a report dated 2 June 2021; and
(b) sports physician Dr Sachin Khullar, who prepared a report dated 3 May 2023.
54Those reports were not relied upon by the VWA at trial and I infer they would not have assisted the VWA's position in relation to causation.
55Finally, I consider Dr Menz' view to be somewhat of an outlier, and prefer the evidence of the very experienced treating surgeon, Mr O'Brien.
56I am satisfied Mr Peter suffers from an ongoing compensable injury in the nature of a disc injury involving disc herniation at L5-S1, with an aggravation of lumbar spondylosis.
Impairment consequences
57The VWA properly conceded the consequences relied upon by Mr Peter are not trivial. Although, quite finely balanced, I am satisfied, overall, that when considered in combination, the following consequences meet the “very considerable” test:
(a) Mr Peter suffers from daily pain. In his words:
“I continue to experience back pain on a daily basis. The pain varies in severity. The pain in my low back travels down into my left buttock. Between about two and four days a week, the pain will travel beyond my left buttock down into the back of my left calf.
About two or three days a month the pain will travel all the way down into my left heel.
My back pain gets worse when I sit or stand for prolonged periods. … .”;[28]
(b) his pain makes climbing flights of stairs difficult, so he takes a lift where possible; and he has difficulty bending and squatting;
(c) the ordinary activities of life typically considered, such as Mr Peter’s sleep, mobility, capacity for self-care and self-management, performance of household and family duties, recreational activities, social activities, sexual life and enjoyment of life, are all affected by his lower back injury;
(d) returning to Haden Engineering, the Court of Appeal stated:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … .”[29]
[28] Affidavit of the plaintiff sworn 9 January 2024, PCB 12 at paragraph [53]
[29] Haden Engineering at 10, paragraph [45]
The evidence establishes that is the case for Mr Peter;
(e) Mr Peter used to engage in household duties and it is a matter of some importance to him that he can no longer assist his wife at home in this way. Mr Peter appeared to me to be a devoted husband, worker and father;
(f) both Mr Peter and his wife, Rochelle, have sworn to the fact there has been an effect upon their intimate relations and this is also a matter of importance;
(g) the sole hobby or pastime which Mr Peter enjoyed prior to his injury was playing cricket once a month with friends and family, which was also important socially to him. He is no longer able to participate in this activity. This is significant; and
(h) his church is also important to him, and from time to time his pain prevents him from attending.
58Mr Peter's evidence as to his ongoing pain and limitations was not challenged. The evidence of Rochelle corroborated this evidence.
59I infer from the amount, consistency and duration of symptoms and treatment, including two steroidal injections and a recommendation of surgery, that Mr Peter's pain is “very considerable”.
60He also requires daily prescription medication, supplemented by over-the-counter medication and other conservative treatment. As was said in Kelso v Tatiara Meat Co Pty Ltd:[30]
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[30] (2007) 17 VR 592 at 629, paragraph [199]
61Mr Peter takes Endep, having previously taken amitriptyline and a short prescription of Tramadol. In addition, he takes Panadol, Panadol Osteo, Voltaren, uses Voltaren Gel and heat packs twice a week, has weekly physiotherapy and wears a back brace every day.
62The VWA accepts Mr Peter's work capacity is reduced, but it fairly submits he is presently working more hours, although in a lighter position than he did prior to injury, and continues to enjoy his work.
63I accept Mr Peter's submission that, given the nature of his current position at the YMCA, it is a somewhat protected position, and he remains vulnerable on the open market given the nature of his condition and the restrictions upon his physical capacity, as set out in the medical material.
64I accept he is exhausted after work. His reduced work capacity is conceded. Even to the extent it could be said he remains working full time, that is simply one factor among the other factors I need to take into account.
65I was invited to find that, although Mr Peter's pain was daily and sometimes severe, I should, in accordance with the principles in Haden Engineering and TTB SMS v Reading,[31] reject his application upon consideration of what he had lost in terms of what he had retained.
[31] [2020] VSCA 203
66While the significance of what Mr Peter has lost in terms of the seriousness of the consequences might be informed by what he has retained in the pursuit of his work as a chef at the YMCA, his limited and compromised travel and participation in domestic and social activities, I must also consider the extent to which he is a stoic individual. I consider Mr Peter as somewhat of a stoic, putting up with his pain and getting on with life as best he can. This is best evidenced by Mr Peter continuing his work at Cabrini for some years as a chef, travelling two hours each way on public transport, despite his worsening lower back condition, and without lodging a WorkCover claim. This fact should not be held against him.
67To his credit, it appears to me he is not prepared to allow his injury to dictate a whole-hearted reduction in his enjoyment of life and pursuit of his work as a chef.
Conclusion
68On the evidence as a whole, I am satisfied that:
(a) Mr Peter suffered a disc injury to his lumbar spine on 17 July 2017 in the course of his employment;
(b) his ongoing consequences of the impairment to his spine are as a consequence of an ongoing compensable injury;
(c) these consequences are permanent; and
(d) the combination of significant daily pain, ongoing treatment, including multiple steroidal injections, reduction in work capacity, interference with his domestic and recreational activity and sleep, and the requirement for ongoing daily prescription medication, is such that the pain and suffering consequences to him of his injury are at least “very considerable”.
69I find Mr Peter has discharged the burden of proof, and leave is granted to him to commence proceedings for damages for pain and suffering in respect of injuries suffered in the course of his employment of 17 July 2017.
70I will hear the parties as to final orders including costs.
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Schedule of Mr Peter’s treatment from July 2017 to August 2024
· 18 July 2017, attended Dr Franklyn at Cabrini Health.
· 1 August 2017, attended Dr Franklyn, who referred him for an x-ray conducted on the same day. The x-ray demonstrated mild anterior spondylolisthesis of L5-S1.
· 5 October 2017, attended Dr Ahmadi for lower back pain and was referred to MyPhysio for physiotherapy treatment.
· 21 October 2017, commenced physiotherapy treatment with Mr Killick at MyPhysio. He had subsequent attendances on 25 October 2017 and 1, 8 and 15 November 2017.
· 6 December 2017, attended Dr Reza and a CT scan was ordered.
· 11 December 2017, a CT scan demonstrated degenerative anterolisthesis at L5-S1 with some narrowing of the L5-S1 neural exit foraminae due to bony factors which may involve the exiting L5 nerve roots. No evidence of focal disc protrusion.
· 21 April 2018, attended Dr Ahmadi who referred him for chiropractic treatment with Dr Elyas Mosheni.
· 2 June 2018, attended Dr Mosheni for chiropractic treatment. He had subsequent attendances on 6 and 11 July 2018, 3 August 2018 and 2 September 2018.
· 27 July 2019, attended Dr Ahmadi for back pain.
· 19 September 2019, was referred for physiotherapy and osteopathy treatment.
· 20 September 2019, attended Heaths Road Osteopathy. He had subsequent attendances on 24 September 2019, 2 October 2019, 18 August 201 and 9 September 2021.
· 21 September 2019, attended Dr Ahmadi for back pain, who issued a medical certificate for 21 to 24 September 2019.
· 30 September 2019, attended Dr Ahmadi for back pain, who referred him for a CT scan and issued a medical certificate for 30 September 2019 to 1 October 2019. The CT scan, dated 1 October 2019, showed spondylolisthesis of L5 on S1 and advanced degenerative changes at L5-S1 facet joints. No focal disc protrusion or canal stenosis.
· 15 October 2019, attended Dr Ahmadi to review the CT scan result and was prescribed Lexapro.
· 27 March 2020, attended Dr Ahmadi for a review since he was due for an updated osteopathy and chiropractic treatment plan. A medical certificate was given for 27 March 2020 to 30 April 2020.
· 8 July 2020, attended Dr Ahmadi for a review and general check-up, since he was due for an updated physiotherapy treatment plan.
· 10 July 2020, attended Dr Ahmadi for a physiotherapy care plan.
· 3 March 2021, attended Dr Cornelis Ferwerda at MyClinic Werribee and was advised to remain on a work plan of four hours, two days a week.
· 20 March 2021, first attended Dr Aftab Islam, GP, for back pain.
· 25 March 2021, attended Dr Islam for back pain. Dr Islam ordered an MRI scan and provided a certificate for 29 March 2021 to 30 March 2021.
· 1 April 2021, attended Dr Islam for back pain. Dr Islam prescribed paracetamol 500 milligrams and provided a medical certificate for 5 April 2021 to 6 April 2021.
· 9 April 2021, attended Dr Shadam Ahmad, GP at Doctors of Tarneit for back pain and was provided a medical certificate for 12 April 2021 and 13 April 2021.
· 22 April 2021, attended Dr Islam due to gradually worsening back pain.
· 23 April 2021, a CT scan of the lumbar spine which showed moderate central canal stenosis L5-S1 level, mild to moderate central canal stenosis at L3-4 and L4-5, L5-S1 foraminal stenosis and Grade 1 anterior spondylolisthesis at L5-S1 secondary to facet joint degenerative changes.
· 29 April 2021, attended Dr Islam for ongoing back pain radiating down the back of his left leg.
· 30 April 2021, attended Dr Samuel Inwang, GP, at MyClinic Werribee for back pain.
· 3 May 2021, an MRI scan of the lumbar spine and thoracic spine showed mild disc bulge and extrusion at the L3-4 level deform but do not compress the L3 nerve lateral to the neural foramen, mild swelling of left L3 nerve which may relate to inflammatory response from the disc extrusion and severe bilateral L5-S1 facet joint arthropathy.
· 5 May 2021, attended Dr Islam, who advised Mr Peter to cease Panadol and prescribed tramadol 50 milligrams, instead.
· 12 May 2021, attended Dr Islam. Mr Peter reported a good response to tramadol for his back pain.
· 17 May 2021, attended Dr Inwang for review of his MRI scan results dated 3 May 2021.
· 19 May 2021, attended Dr Islam who recommended physiotherapy treatment.
· 21 May 2021, attended Dr Inwang who provided a care plan for chiropractic and osteopathy treatment.
· 9 June 2021, attended Dr Islam and was advised he could work three hours a day.
· 23 June 2021, attended Dr Islam for back pain and was prescribed tramadol, 50 milligrams.
· 24 June 2021, attended Mr Aleksander Milivojevic for physiotherapy treatment at Hoppers Physio. He had twenty-three subsequent appointments between June 2021 and July 2023.
· 21 July 2021, Mr Milivojevic requested a back brace for Mr Peter from the WorkCover agent. The same day, Mr Peter attended Dr Islam for back pain.
· 27 July 2021, a CT-guided nerve sheath injection was performed at L3.
· 8 August 2021, attended Dr Islam for back pain and reported he was using tramadol intermittently. Dr Islam prescribed tramadol, 50 milligrams.
· 21 August 2021, attended Dr Islam for back pain and was commenced on amitriptyline.
· 8 September 2021, attended Dr Islam for back pain and reported improvement in pain since commencing amitriptyline.
· 29 September 2021, attended Dr Islam for back pain.
· 26 November 2021, attended Dr Islam and was advised to continue taking amitriptyline, 10 milligrams at night.
· 5 January 2022, attended Dr Islam and reported he was struggling to work independently in the kitchen at work.
· 10 February 2022, attended Dr Islam for a referral to an orthopaedic surgeon.
· 28 February 2022, consulted with Mr O’Brien, orthopaedic surgeon.
· 3 March 2022, attended Dr Islam for back pain. Dr Islam increased the amitriptyline dosage from 10 milligrams to 25 milligrams.
· 7 March 2022, an MRI scan of the lumbar spine showed mild broad-based disc bulge at L5-S1, extending into the left foraminal region, contacting the exiting left L5 nerve root and resulting in moderate left neural foraminal narrowing and multilevel mild broad-based disc bulge.
· 29 March 2022, was reviewed by Mr O’Brien, who recommended further nerve root block at L5-S1 and was put off work for a month.
· 31 March 2022, Dr Islam consulted with the return to work co-ordinator. Dr Islam increased Mr Peter’s amitriptyline dosage from 25 milligrams to 50 milligrams.
· 24 May 2022, Mr O’Brien reviewed Mr Peter and recommended an L5 nerve root block and for Mr Peter to remain off work. Mr O’Brien certified Mr Peter unfit for work from 23 May 2022 to 25 May 2022.
· 26 May 2022, attended Dr Islam for back pain.
· 27 June 2022, reviewed by Mr O’Brien.
· 28 June 2022, Mr Milivojevic requested a three-month swim membership from the WorkCover agent.
· 28 November 2022, CT-guided left L5 nerve root injection.
· 5 December 2022, final appointment with Mr O’Brien.
· 25 September 2023, attended Dr Islam and was given a certificate of capacity.
· 16 November 2023, attended Dr Islam for a physiotherapy care plan.
· 17 November 2023 and 11 December 2023, attended Dr Islam. Dr Islam provided a certificate of capacity and prescribed amitriptyline, paracetamol and Voltaren on each occasion.
· 23 February 2024, 20 May 2024 and 20 August 2024, attended Dr Islam. Dr Islam provided a certificate of capacity and prescribed amitriptyline on each occasion.
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