Pham v Swift Australia (Southern) Pty Ltd
[2013] VCC 1027
•23 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02114
| CONG NHUONG PHAM | Plaintiff |
| v | |
| SWIFT AUSTRALIA (SOUTHERN) PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2013 | |
DATE OF JUDGMENT: | 23 August 2013 | |
CASE MAY BE CITED AS: | Pham v Swift Australia (Southern) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1027 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the low back – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Coldwell | Slater & Gordon Ltd |
| For the Defendant | Mr J O’Brien | Wisewould Mahony |
HIS HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant on 17 September 2009.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the low back.
6 The plaintiff relied upon two affidavits, sworn 22 December 2011 and 31 May 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or his evidence. However, I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” suffered by him arose out of, or in the course of, or due to the nature of his employment with the defendant.[2]
(b)“the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c)“the consequences” to the plaintiff of his impairments to the low-back in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3]Barwon Spinners (supra) at paragraph [33]
[4]s134AB(38)(b) and (c)
9 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB(37)(c) and (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. … .”[6]
[5][2009] VSCA 181
[6]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph at [42]
10 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
11 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 The test for “serious”, as set out in paragraph (b) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[8]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[8]s134AB(38)(j) of the Act
[9] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
14 Subsection (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[10] and in Grech v Orica Australia Pty Ltd.[11]
[10]supra
[11](2006) 14 VR 602
The issue
16 Counsel for the defendant informed the Court that this is a “range case”; namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that the consequences could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
17 Further, the plaintiff has a mild functional or psychological reaction.
Investigations
18 In June 2009, an x-ray of the lumbosacral spine showed:
“Clinical: Tender lumbar spine with decreased SLR.
Report: Intervertebral disc height preserved at all levels. Anterior wedging of T12 to L2 is potentially developmental in nature. This results in slight kyphosis at the thoracolumbar junction. No focal osseous lesion. Intervertebral discs preserved at all levels. Sacroiliac joints within normal limits. No pre or paravertebral soft tissue abnormality.
Further CT or MRI evaluation may be of benefit.”[12]
[12]Plaintiff’s Court Book (“PCB”) 41
19 On 25 June 2009, a CT scan of the lower thoracic and lumbar spine concluded mild broad-based central disc protrusion at L4-5.[13]
[13]PCB 42
The Plaintiff’s medical evidence
Dr Louis Luu
20 Dr Luu, general practitioner, provided reports dated 29 March 2011,[14] 29 August 2012[15] and 2 June 2013.[16]
[14]PCB 57-60
[15]PCB 72-74
[16]PCB 75-77
21 Dr Luu commenced to treat the plaintiff as a result of his work injury. Initially the plaintiff consulted Dr K Oppenheimer, and changed to Dr Luu because of language communication problems. Dr Luu diagnosed lumbar spine disc bulge, more at L4-5 than L5-S1, caused by a tear in disc annular ligaments without nerve root compression.
22 Dr Luu said the plaintiff demonstrated a keenness to work and adhered to the treatment program in the initial phase of his recovery. He made considerable improvement to his back injury and was able to work with restrictions.
23 In June 2013, he said the plaintiff had persistent low-back pain with intermittent left leg numbness/sciatica. His symptoms are exacerbated with prolonged sitting, standing and walking, and with lifting and cold weather conditions. His pain has been relieved with medication (Panadol Osteo tablets and Metsal Cream), physiotherapy and gentle exercises of walking and stretching.
24 Dr Luu said that since the plaintiff’s retrenchment in January 2011, the plaintiff had been unable to find work, despite assistance from Job Network and additional training. It was Dr Luu’s view that the plaintiff would have difficulty finding future employment, taking into account his age, reduced physical capacity, poor English and lack of formal qualifications. He said he thought the plaintiff would find it difficult to be re-employed.
Mr Peter Wilde
25 Mr Wilde, orthopaedic surgeon, provided reports dated 3 December 2009[17] and 11 November 2010.[18]
[17]PCB 43-46
[18]PCB 47-51
26 Mr Wilde treated the plaintiff on referral from the plaintiff’s general practitioner in December 2009 and November 2010.
27 Mr Wilde diagnosed an aggravation of lumbar spondylosis without radiculopathy. As the plaintiff did not suffer with symptoms prior to his injury, Mr Wilde accepted that the injury was a significant contributing factor. He said that it was likely there was a degree of asymptomatic degenerative disc disease prior to the injury and the injury caused further internal disc derangement which has precipitated the plaintiff’s symptoms.
28 Mr Wilde said the plaintiff’s prognosis was guarded. He expected that the plaintiff will always suffer with low-grade symptoms of chronic lumbar pain and stiffness and will have to modify his personal and work activities to accommodate his symptoms to prevent further deterioration. He did not expect that the plaintiff would require surgery in the foreseeable future. He said the aggravation will continue in the foreseeable future and may continue longer term.
29 Mr Wilde said the plaintiff was not fit for pre-injury duties at the abattoir, but had a work capacity for light duties. Restrictions apply to his work and any activity he undertakes – namely the avoidance of bending, lifting, twisting, prolonged standing and prolonged sitting. Mr Wilde said the plaintiff was significantly restricted in any activity that involved bending, lifting, twisting, standing or sitting, and that he could not perform physically stressful domestic tasks such as gardening or housework.
Mr Giac Du
30 Mr Du, occupational physiotherapist, provided a report dated 13 December 2011.[19]
[19]PCB 69-71
31 Mr Du reported that the plaintiff had been receiving physiotherapy treatment since July of 2009.[20]
[20]PCB 69-71
32 It was his view the plaintiff’s symptoms had stabilised but not resolved. It was his view that the plaintiff could not return to pre-injury duties, that he required a gym strengthening program and will require intermittent physiotherapy to assist with his pain. He accepted he had the capacity to perform light duties with limited lifting, limited repetitive or sustained forward bending and limited prolonged sitting. It was his view the plaintiff had a capacity to return to work handling moderate weights.
Mr Peter Dohrmann
33 In July 2012, Mr Dohrmann, neurosurgeon, examined the plaintiff at the request of the plaintiff’s solicitor, and provided a report dated 17 July 2012. [21]
[21]PCB 78-87
34 Mr Dohrmann said that the plaintiff was suffering from chronic back pain and left leg numbness and pain in association with a disc lesion at L4-L5. He said the plaintiff had continuing constant low-back pain and fluctuating left leg symptoms, including numbness and pain. His symptoms are mild to moderate rather than moderate to severe. The plaintiff could engage in walking up and down inclines, but should not be expected to use steps or ladders, and there was no effect on his manual dexterity. Mr Dohrmann said the restrictions are likely to continue for the foreseeable future. He imposed restrictions on physical activity; namely the plaintiff should not be involved in repeated bending, lifting or twisting of the lumbar spine. He should not be involved in repeated pushing or pulling. He said there was no particular restriction on overhead activities or on kneeling, squatting or crouching.
35 Mr Dohrmann said that the plaintiff did not have the capacity to perform his pre-injury duties as a boner and this incapacity was likely to be permanent; that is, for the foreseeable future. He said the plaintiff had a partial capacity for work, and could perform modified duties, namely the duties he was performing from 2009 until his termination in 2011.
36 Mr Dohrmann said the plaintiff’s engagement in ordinary activities of daily living suggested that there was a mild restriction in his ability to engage in social, domestic and recreational activities and that these restrictions are likely to continue for the foreseeable future.
37 Mr Dohrmann said there was no evidence of overlay. Mr Dohrmann said that it is likely the plaintiff’s disc at L4-L5 will undergo accelerated degenerative changes as a result of his injury.
38 Mr Dohrmann agreed with Mr Wilde that surgical intervention was not recommended. He said that it was possible surgery could be required if the referred symptoms in the left leg increased or became associated with evidence of objective nerve root involvement. He said an MRI examination would be helpful in defining future treatment needs.
Dr Clayton Thomas
39 In November 2012, Dr Thomas, specialist in rehabilitation and pain medicine, examined the plaintiff at the request of the plaintiff’s solicitors, and provided a report dated 15 November 2012.[22]
[22]PCB 88-92
40 Dr Thomas said the plaintiff sustained an injury to his lumbar spine and the dominant problem was symptomatic spondylosis, with evidence of left-sided sciatica but no evidence of left radiculopathy. He said the plaintiff had a capacity to work. He said the plaintiff could perform work at bench height and lifting frequently between waist and chest height. He would require a job that provided flexibility so he was not tethered to one place for prolonged periods. He could work up to 24 hours per week in a reliable manner. He said “the problem is that he comes from a non-English speaking background and has performed physical work at an abattoir…he does not have any acceptable transferrable skills.” He agreed with Mr Dohrmann that the plaintiff’s injury was an organic one and that there was no psychological overlay. He said surgical intervention was not required.
Dr Ralph Poppenbeek
41 In September 2010, Dr Poppenbeek, specialist in occupational medicine, examined the plaintiff at the request of the defendant’s insurer and reported that the plaintiff presented with acute onset of low-back and leg pain, from which he had improved but continued to be troubled by back pain.
42 Dr Poppenbeek said the plaintiff was no longer dependent on treatment in regard to his injury and if it were ceased, he would be able to undertake activities of daily living and continue his current work.
43 He did not think the plaintiff’s current treatment was effective. He recommended a specific rehabilitation program of a multidisciplinary nature.
44 He accepted that the work activity in June 2009 was the precipitating factor but there was underlying degenerative disease which was of a constitutional nature.
45 He did not recommend a return to pre-injury duties and hours but recommended alternative duties at full-time hours. He imposed restrictions in relation to standing and sitting for longer than one hour. He said the plaintiff needed to change posture regularly. He imposed a lifting limit of 5 kilograms continuously or 7 kilograms intermittently.
46 He thought the plaintiff was engaging unconsciously in pain avoidance behaviour.
The Defendant’s medical evidence
Dr Klaus Oppenheimer
47 In November 2010, Dr Oppenheimer reported to the plaintiff’s solicitor that he treated the plaintiff the day following the work injury. The plaintiff complained of low-back pain, radiating to the front of his left thigh and down the lateral aspect of his left leg. The plain became worse during the night and he had difficulty rolling over in bed.
48 A CT scan of 25 June 2009 confirmed a mild broadbased posterior disc bulge.
49 The plaintiff was maintained on alternative duties to avoid bending or twisting of his back and not to lift more than five kilograms.
50 Dr Oppenheimer last saw the plaintiff on 3 July 2009. It was his opinion the plaintiff was suffering from a minor posterior disc protrusion at his L4-5 level, consistent with the stated cause. He expected the disc protrusion to shrink, reducing in size with resolution of his symptoms. He expected the plaintiff to make a complete recovery but should avoid heavy lifting in the future to prevent further problems.
Dr Philip Mutton
51 In September 2011, Dr Mutton, occupational physician, examined the plaintiff at the request of the defendant’s insurer.
52 Dr Mutton said the plaintiff was suffering from chronic nonspecific back pain and there was no significant pathology noted on CT scan. He said the plaintiff had a current work capacity of full-time work in performing less physically demanding work. He imposed restrictions of a 10 kilogram weight limitation, avoidance of repetitive back bending and certain lifting from floor to waist level. He though suitable work options were process work, assembly work, traffic control and sales assistant.
53 He described the plaintiff as genuine.
Mr Kevin Sui
54 Mr Sui, neurosurgeon, examined the plaintiff at the request of the defendant’s solicitor in February and August 2012 and May 2013.
55 Mr Sui diagnosed a soft-tissue ligamentous injury to the back and said the CT scan changes represented no more than the usual appearance of someone who has performed labouring duties for twenty years (February 2012). He said the CT scan showed a mild to minimum disc bulge. Initially he imposed physical restrictions of no bending or lifting of more than 5 to 10 kilograms. He said the plaintiff could return to light duties.
56 In August 2012, Mr Sui said the condition was stabilised and there had been no increase in the plaintiff’s symptoms. He thought the plaintiff should be offered retraining, and he did not see a strong motivation for the plaintiff to return to work. He reiterated that the plaintiff should avoid heavy labouring duties, and described his condition as “low grade in terms of his back condition”. He said the plaintiff’s functional component was very small and he did not think it was affecting his social or occupational function.
57 By April 2013, Mr Sui diagnosed an unresolved soft-tissue injury. He thought the symptoms were out of proportion to the injury sustained and said that soft-tissue ligamentous injuries usually resolve in a matter of months. He described the functional overlay as minor, and commented that the plaintiff could move around well and undress readily without discomfort.
58 By June 2013, Mr Sui said the motivation to recover has a significant impact on the plaintiff’s ability to return to work. He said he thought the plaintiff’s physical condition was better than the plaintiff claimed and that he could return to light duties with some restrictions, but he noted the plaintiff was having difficulty securing such employment. He said the use of Panadol Osteo was not unreasonable. He did not recommend surgery.
Mr Peter Battlay
59 Mr Battlay, surgeon, examined the plaintiff in May 2011, August 2012 and April 2013.
60 In August 2012, Mr Battlay accepted there was a degree of permanent impairment due to the plaintiff’s lower lumbar disc derangement without radiculopathy. He said there was an element of functional overlay which should be taken into account and he thought the plaintiff had been away from the workforce for an unreasonably long time.
61 In respect to the functional component, he said the plaintiff demonstrated jerky back movements which were totally unnatural. The plaintiff responded positively to specific testing for non-physical symptom production and he had self-contradictory back flexion from the vertical to what he could demonstrate on the couch.
62 In April 2013, Mr Battlay thought the plaintiff should have been able to return to work. He said the plaintiff’s full pre-injury duties were not appropriate but he could perform work not requiring repeated or sustained bending below waist height and not requiring manual handling in excess of 15 to 20 kilograms.
63 Mr Battlay said the plaintiff presented with mechanical low-back pain and referred left leg symptoms consistent with some mild disc bulging, but not consistent in terms of the fact that he had not improved, even though there had been no further aggravation of his condition. He said there was evidence of functional overlay.
64 Mr Battlay noted that, had the plaintiff not had a psychological reaction to his condition, he would have been able to return to work consistent with his sex and physical development. He said this applied to his everyday life activities and he would not place any medication restrictions on his work or leisure time activities. He said the Panadol Osteo was prescribed for patients with least severe symptoms.
Mr Michael Dooley
65 Mr Dooley, orthopaedic surgeon, examined the plaintiff in April and September 2012 at the request of the defendant’s solicitor.
66 Mr Dooley said the plaintiff had naturally occurring degenerative disc disease of the lower lumbar spine. It was his opinion that in June 2009, the plaintiff aggravated the underlying condition. He accepted the quality of the plaintiff’s ongoing pain and restrictions were consistent with symptomatic degenerative disc disease but overall he felt the constancy and intensity of the plaintiff’s ongoing pain and his described disability were greater than he would expect for his condition. He said it was not uncommon in clinical practice to see patients who have carried out physical work over a long period of thirty five years to see a minor injury being the “straw that breaks the camel’s back”.
67 He said, from an orthopaedic point of view, it was appropriate for the plaintiff to remain active and to carry out regular exercise. Walking would be important for the plaintiff; swimming and water exercise would benefit the plaintiff.
68 In September 2012, Mr Dooley said that he remained of the view the plaintiff had a Chronic Pain Syndrome and that the constancy and intensity of his ongoing pain were greater than he would expect to see for this condition. He noted that the plaintiff remained generally active. He said from an orthopaedic point of view, he had the physical capacity to carry out light physical work and clerical work.
69 Mr Dooley described the plaintiff’s orthopaedic condition as “mild to moderate”, which would be improved by activity and low-impact exercise which he could self-manage. He accepted that the plaintiff might be unable to play tennis but said he would have the physical capacity to fish in a river but would have difficulty carrying camping gear and setting it up. He said the plaintiff had the physical capacity to attend church and play a guitar. In respect to domestic activities, he thought he would have the physical capacity to carry out activities such as shopping, attending family outings, travelling to Vietnam, cooking, socialising with friends and going out to dinner. He accepted the plaintiff would have difficulty regularly carrying very heavy loads of shopping.
70 In April 2013, Mr Dooley accepted that the plaintiff’s described disability and complaint of constant ongoing pain were out of proportion with what one would expect for his organic injury. Mr Dooley said that from an orthopaedic view, one would expect the plaintiff to have some intermittent low-back pain and occasional lower limb pain. He would expect him to be able to carry out a wide range of employment, domestic and leisure pursuits. He would expect that he would have difficulty with heavy physical activities regularly and with active impact leisure pursuits.
Dr Ian Jackson
71 Dr Jackson, psychiatrist, examined the plaintiff in August 2011 at the request of the defendant’s insurer. He diagnosed a secondary depressive symptom associated with the plaintiff’s chronic pain and the consequences of the pain, including loss of employment. He said it was complicated by his sick mother. He said the plaintiff was not suffering from a diagnosable psychiatric illness.
Dr Stephen Stern
72 In May 2011, Dr Stern, psychiatrist, examined the plaintiff at the request of the defendant’s insurer.
73 He said the plaintiff had sustained a psychiatric injury which was an Adjustment Disorder with Depressed Mood. He had had no psychological or psychiatric treatment. He said the plaintiff’s activities of daily living were not limited by his psychiatric condition.
Video surveillance
74 I was shown no film of the plaintiff, even though video surveillance of the plaintiff was undertaken. I can only conclude that the film did not assist the defendant.
Credit of the Plaintiff
75 Counsel for the defendant submitted that the plaintiff’s evidence in Court and in affidavits attempted to maximise his position and was unconvincing. Counsel relied upon the following matters:
(a) In cross-examination, the plaintiff was asked why he was terminated in January 2011. The plaintiff said he thought it was because the employer wanted to get rid of him. In re-examination, Counsel for the plaintiff asked why. The plaintiff offered information which was not in response to the question, before finally answering the question. Counsel for the defendant then submitted that the plaintiff’s answer was inconsistent with the injury occurring in 2009 and the fact that he had been given light duties for a period of eighteen months. I accept the plaintiff was answering questions as best he could. He had limited education, which he had attained in Vietnam, he was not confident with the legal process and he was reliant upon the interpreter.
(b) Secondly, Counsel for the defendant referred to a statement made in a report of the treating physiotherapist, Mr Giac Du, dated 13 December 2011. Mr Du reported:
“…By mid-April 2010, he was able to start gentle exercises again.
Mr Pham then developed some left shoulder pain while pushing a carcass on railing that had become stuck. … .”[23]
[23]PCB 70
The plaintiff denied pushing a carcass on railing that had become stuck while on light duties. Counsel for the defendant submitted that the physiotherapist would only have reported that the plaintiff had pushed a carcass on railing if he had been told by the plaintiff. That assumes that the physiotherapist reported accurately what he was told by the plaintiff.
(c) Thirdly, Counsel for the defendant referred to the plaintiff’s trips to Vietnam and submitted that the plaintiff said:
“Most of the time was not spent seated.”
This is not the evidence of the plaintiff. The transcript records:
Q: “You would have been seated most of the time on those flights, is that correct?---
A: Okay I can sit and then I can get up and walk around the plane.
Q: But most of the time you would be seated wouldn’t you?---
A: Not all the time. When I felt pain I get up and walked.
Q: Most of the time, I suggest to you, you were seated?---
A: Not most of the time, no.
Q: So most of the time you were standing up wandering around the plane. Is that what you are telling us?---
A: No not most of the time. When I sat down I felt pain, I get up and walk.”[24]
[24]Transcript page 16, Lines 6-16
(d) Fourthly, Counsel for the defendant submitted the fact that the plaintiff had travelled to Vietnam on four occasions since the accident was inconsistent with the plaintiff’s evidence that he was concerned about not having money. The defendant did not put this to the plaintiff. Further, this submission makes a number of assumptions which I am not prepared to entertain.
(e) Fifthly, the plaintiff said he no longer played the guitar with the church group because he had to sit down and hold the guitar, which caused back pain and numbness in his left leg. A photograph was tendered of the plaintiff playing the guitar in the church choir which showed the plaintiff standing. The plaintiff said at rehearsals he stands up, but in the church he plays the guitar seated.
(f) Sixthly, the plaintiff gave evidence that he had attempted to obtain work; he had approached an Asian grocery and food stores and a telecommunications shop without success. Counsel for the defendant submitted that the type of work the plaintiff was prepared to do was the lightest of work and that the work he had performed in the abattoirs was more “hands on”. This is a claim for pain and suffering only. The medical evidence is that the plaintiff can no longer engage in heavy physical work. I do not accept that the plaintiff’s evidence as to his job seeking activities reflects on his credit.
76 For the above reasons, I do not accept that the plaintiff’s evidence was impugned.
77 The plaintiff had limited education. His evidence was that he could speak broken English and could understand normal conversations but needed the assistance of an interpreter with medical and legal terms. This is consistent with the fact that Dr Luu reported the plaintiff changed doctors because of language communication problems. The plaintiff was consistent in reporting his injuries and limitations to the doctors whom he saw.
78 The plaintiff was described by a number of medical witnesses as “genuinely motivated to remain at work”.[25] Mr Dohrmann said he presented in a “straightforward fashion”.[26] Mr Battlay was the only medical witness to suggest there was an element of exaggeration Mr Sui, Mr Battlay and Mr Dooley commented on the plaintiff’s functional overlay. Overall, I accept that the plaintiff was a witness of truth.
[25]Dr Mutton, Dr Thomas, Mr Wilde and Dr Luu
[26]CB 84
Analysis of the evidence
79 All doctors accepted the plaintiff’s injury was work related.
80 Based on the medical report of Mr Battlay, the plaintiff was determined as suffering a combined whole person physical impairment of 5 per cent.
81 The plaintiff’s injury was variously described by the medical witnesses as an aggravation of lumbar spondylosis without radiculopathy.[27] Mr Dohrmann and Mr Siu described the plaintiff’s symptoms as “mild to moderate”. Mr Siu said the plaintiff’s disc bulge was consistent with a person who has performed labouring duties for twenty years, and Mr Dooley said it was not uncommon in clinical practice to see patients who have carried out physical work over a long period of thirty-five years where a minor injury is the “straw that breaks the camel’s back”.
[27]Mr Wilde, orthopaedic surgeon: aggravation of lumbar spondylosis without radiculopathy
Dr Luu, general practitioner: lumbar spine disc bulge, more at L4-5 than L5-S1, caused by a tear of disc annular ligament with nerve root compression
Mr Dohrmann, neurosurgeon: chronic back pain and left leg numbness and pain in association with a disc lesion at L4-5
Dr Clayton Thomas, consultant in rehabilitation and pain medicine: injury to lumbar spine and the dominant problem was symptomatic spondylosis with evidence of left-sided sciatica without radiculopathy
Mr Siu, neurosurgeon: soft-tissue ligamentous injury to the back
Mr Battlay, orthopaedic surgeon: lower lumbar disc derangement without radiculopathy
Mr Dooley, orthopaedic surgeon: aggravation of an underlying degenerative disc
82 Mr Wilde said that as the plaintiff did not suffer with symptoms prior to his injury the injury at work was a significant contributing factor. Further, there was likely to have been a degree of asymptomatic degenerative disc disease prior to the injury. The injury caused further internal disc derangement precipitating symptoms.
83 Mr Dooley said the plaintiff has a naturally accruing degenerative disc disease of the low lumbar spine. He believed the work injury aggravated the underlying condition.[28] He accepted the plaintiff’s ongoing pain and restrictions were consistent with symptomatic degenerative disc disease, he thought the constancy and intensity of the ongoing pain and his described disability were greater than he would expect for his condition.
[28]Mr Poppenbeek agreed with Mr Dooley.
84 Mr Wilde and Mr Dooley accepted the plaintiff’s injury involved an aggravation.
85 The plaintiff’s evidence was that he had no previous back injury. He had good health and did not suffer back or leg pain prior to the injury. He told Mr Wilde that he suffered “a vague pain in his back about two to three years previously but this had resolved”.
86 I accept the plaintiff’s evidence that prior to the work related injury he was symptom free. I accept the consequences the plaintiff described are as a result of the injury at work.
87 All of the medical witnesses who considered his work capacity accepted that the plaintiff could not perform his pre-injury work as a boner and that the incapacity was likely to be permanent; that is, for the foreseeable future. All accepted that the plaintiff was not fit for pre-injury duties at the abattoir but had a work capacity for light duties. A number of the doctors imposed restrictions applying to the plaintiff’s work and general activities; namely the avoidance of bending, lifting, twisting, prolonged standing and prolonged sitting.[29]
[29]Dr Luu, Mr Peter Wilde, Mr Peter Dohrmann
88 Dr Clayton Thomas said the plaintiff could perform work at bench height and could perform work lifting 5 kilograms frequently between waist and chest height. He required some flexibility so he was not tethered to one place for prolonged periods of time, and he imposed a restriction of not being able to work beyond 24 hours per week in a reliable manner.
89 Mr Sui said the plaintiff should be offered retraining and should avoid heavy labouring duties and could return to light duties with some restrictions. Initially he imposed physical restrictions of no bending or lifting of more than 5 to 10 kilograms.
90 Mr Battlay imposed restrictions of repeated or sustained bending below waist height and not requiring manual handling in excess of 15 to 20 kilograms.
91 Mr Dooley said the plaintiff could return to light physical and clerical work. Given the plaintiff’s presentation in Court, his previous work history and poor English I thought it unlikely he would be suited to clerical work.
92 Dr Luu said the plaintiff would find it difficult to obtain suitable employment because of his age, poor English and lack of formal qualifications. Dr Thomas said his non-English speaking background, his physical work means he had few transferable skills.
93 The evidence was that the plaintiff returned to work performing light duties until he was terminated in February 2011. The plaintiff said he could do the full time light duties he was performing with the defendant prior to being sacked. Those duties involved instructing new boners how to perform the work. Since then he has not obtained suitable employment. He said he used to be the bread winner, he feels useless and sad because he cannot bring money into the family by working. Currently the plaintiff is undertaking English language classes and a computer course. All doctors imposed restrictions on the plaintiff’s work.
94 The plaintiff is from a non-English speaking background with limited education who has performed physical work in Vietnam as a labourer and farmer and since arriving in Australia has worked as a labourer. The plaintiff’s work history has been physical manual work. All medical witnesses accepted he could no longer perform his pre-injury work. Most of the doctors imposed restrictions in some form.
95 I am satisfied that the plaintiff cannot return to his pre-injury employment due to his work injury, which was a job he enjoyed. He said before the injury his work performance was good. He can no longer perform a job with the unrestricted use of his back. Because of his injury, the plaintiff is limited to light physical duties. Those consequences are supported by the evidence of the plaintiff and the medical evidence. I accept that, for this particular plaintiff, given his work history, this represents a significant consequence which I can take into account. I accept that his self esteem and identity are significantly affected.
96 The plaintiff’s evidence was that he continues to suffer pain and restrictions in his back. In April 2013, the plaintiff reported to Mr Sui the pain level was four out of ten and told Mr Dooley he had “constant low-back pain and intermittent left leg pain and numbness”. In June 2013, Dr Luu described the plaintiff’s pain as persistent. The plaintiff is taking medication on a daily basis to deal with the pain. The medication included Tramal and Mobic, and over the past two years, Digesic, and currently he takes two doses of two Panadol Osteo daily. If the pain is particularly bad, he takes three doses of Panadol Osteo per pay. The only doctor that suggested that the plaintiff’s treatment was inappropriate was Dr Poppenbeek, who said the plaintiff’s current treatment was not effective and recommended a multidisciplinary rehabilitation program. The plaintiff gave evidence that he does not like taking medication. He has stomach problems and it affects his concentration. His evidence was that on a recent trip to Vietnam to see his aged mother, he was required to increase the medication to cope with the flight.
97 Currently, he performs exercises daily recommended by a physiotherapist. He consults his general practitioner once per month.
98 The plaintiff’s evidence was that the pain and numbness increases if he walks, stands or sits for prolonged periods of time. He is limited to sitting for 20 to 30 minutes. He continues to walk longer than 30 minutes as he has been informed walking is good for his condition. Driving is affected by his back condition. After two hours he suffers increased pain. At times his wife drives so he can rest.
99 The plaintiff’s evidence was that the pain interferes with his sleep. He said he struggles to get more than approximately 4 to 5 hours sleep per night. He wakes up during the night due to pain and has difficulty getting back to sleep. He reported to Dr Mutton that he had disturbed sleep and wakes one to three times per night. Dr Luu reported that the plaintiff was suffering from insomnia. He reported difficulties in going to sleep to Mr Wilde. I accept the plaintiff’s evidence that he continues to have difficulty with his sleep, he wakes due to the pain and has difficulty getting back to sleep.
100 The plaintiff’s evidence was that he used to go to the Murray River and on occasions to Werribee fishing for Murray Cod or Carp. He would stay at Swan Hill, camping overnight. He found the sitting and standing for long periods of time would cause pain, and he did not enjoy it as he did before the injury. Mr Dooley said the plaintiff had the physical capacity to fish in a river but would have difficulty carrying camping gear and setting up camp.
101 The plaintiff’s evidence is that his mother lives in Vietnam and is suffering from liver cancer. He has visited her in Vietnam on a number of occasions to take care of her. The plaintiff’s evidence was that while travelling, he takes more medication, including Digesic. He manages the pain on the flights by increased medication and walking around the plane. His wife assists him with the luggage. While in Vietnam, he no longer undertakes activities he pursued with friends such as playing tennis, bushwalking and mountain climbing, which were activities he pursued prior to his injury. I accept this is a consequence I can take into account.
102 The plaintiff’s evidence was that he used to play tennis and karate with his son. Since the injury, he has tried to play tennis but finds it difficult because he cannot bend or reach or stretch for a shot because of the pain. Running also hurts his back. He has not attempted karate since his injury as the various movements involved, particularly the kicking and defending movements, could aggravate his condition. He worries that he would be risking further damage. The plaintiff’s evidence was that he obtained a black belt in karate. Because he can no longer engage in these activities with his son, he feels the relationship between father and son is affected.
103 The plaintiff’s evidence is that prior to the work injury, he played the guitar in the choir at his church. He enjoyed that activity. He has stopped playing the guitar in the choir because he had to sit, and the hunched over position he would be required to adopt to play the guitar would be too uncomfortable on his back and he would be required to sit or stand in one position for too long.
Functional or psychological reaction
104 Counsel for the defendant submitted the plaintiff has a mild functional or psychological reaction.
105 Dr Jackson, psychiatrist, diagnosed a secondary depressive symptom associated with the plaintiff’s chronic pain and the consequences of the pain, including a loss of employment. He said the plaintiff was not suffering from a diagnosable psychiatric illness.
106 Dr Stern, psychiatrist, said the plaintiff had sustained a psychiatric injury which was an Adjustment Disorder with Depressed Mood, that he had had no psychological or psychiatric treatment and the plaintiff’s activities of daily living were not limited by his psychiatric condition.
107 Dr Luu, the general practitioner, said the plaintiff needed counselling but no medication was required.
108 Dr Thomas said there was no psychological overlay, and Mr Dohrmann said he had a straightforward presentation and there was no evidence of overlay.
109 Mr Sui, neurosurgeon, accepted there was an organic basis to the plaintiff’s injury but said that there was some functional overlay but said there was no gross exaggeration of his symptoms. He said the plaintiff had not exhibited any adverse psychological reaction and that he was motivated to some extent.
110 In his second report, Mr Sui said there was no overt abnormal illness behaviour but said the plaintiff had settled into the mode of being the injured worker and was only prepared to try light duties. He said the functional component was very small.
111 In his third report, Mr Sui described the functional overlay as minor, and said he did not think the plaintiff had any significant abnormal illness behaviour.
112 Mr Peter Battlay accepted the plaintiff had an organic injury. In his second and third reports he said he detected an element of functional overlay. In his third report, he mentioned functional overlay and exaggeration of symptoms.
113 Mr Dooley accepted the plaintiff had an organic injury but was of the view the plaintiff had developed a Chronic Pain Syndrome and that the constancy and intensity of his ongoing pain is greater than one would expect to see for his condition.
114 I accept that some of the medical witnesses said that the plaintiff has a minor functional overlay. The preponderance of the evidence is that the plaintiff’s consequences, in particular the loss of his ability to engage in heavy physical labour, karate, tennis and camping and the restrictions on prolonged sitting, standing and driving, are due to his organic back injury. Dr Stern said the plaintiff’s activities of daily living were not limited by his psychiatric condition. Accordingly, I accept that the plaintiff suffered an organic injury.
Conclusion
115 Taking all the evidence into account, I am satisfied that the plaintiff can no longer participate in the physical and recreational activities which were an important part of his life. He experiences constant pain in his lower back and intermittent left leg pain. He is required to take regular analgesic medication. I am satisfied that he can no longer work in his pre-injury employment and is restricted to light physical duties. He needs to shift his posture on a regular basis. These restrictions affect his ability to find employment. He is no longer able to go camping, play tennis or karate with his son and he no longer plays the guitar at Church. In addition, his sleep is disturbed.
116 I am satisfied that it is fair to describe the consequences of the pain and suffering as being “more than significant or marked” and properly regarded as “considerable” when judged by a comparison with other cases in the range. The plaintiff therefore satisfies the narrative test for pain and suffering. In reaching this conclusion, I have made a comparison with other cases in the range of possible impairments.[30]
[30]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at [44]
117 I am satisfied that the back injury is permanent, given the evidence from all medical witnesses. Mr Dohrmann said that it is likely that the plaintiff’s disc at L4 L5 will undergo accelerated degenerative changes as a result of the injury. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
118 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering is successful.
119 I will hear the parties in relation to the formal orders.
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