Pippis v Geo Group Australia Pty Ltd
[2013] VCC 619
•3 June 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-10-05645
| ANTHONY PIPPIS | Plaintiff |
| v | |
| THE GEO GROUP AUSTRALIA PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2013 | |
DATE OF JUDGMENT: | 3 June 2013 | |
CASE MAY BE CITED AS: | Pippis v GEO Group Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 619 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower spine – pain and suffering only – credit of the plaintiff – whether the consequences claimed by the plaintiff meet the “very considerable” test.
Legislation: Accident Compensation Act 1985, s134AB
Judgment: Leave to the plaintiff to issue proceedings.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D O’Callaghan | Ryan Carlisle Thomas |
| For the Defendant | Mr S Smith | Wisewould Mahony |
HIS HONOUR:
Preliminary
1 The plaintiff alleges he suffered injury to his lower spine in a lifting incident in the course of his employment with the defendant on 30 April 2008. According to the medical evidence, the plaintiff has suffered an aggravation of degenerative changes in his lumbar spine, in particular at the L4-5 level. He has had a range of conservative treatment, and has suffered a reduction in his social, domestic and recreational activities which he says meet the “very considerable” test as prescribed by the Accident Compensation Act 1985 (“the Act”).
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Act for injury suffered in the course of the plaintiff’s employment. The body function said to be lost or impaired is the lower spine. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, medical and radiological reports, surveillance film and affidavits of the plaintiff and his daughter were tendered into evidence. I have observed/read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of his evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
4 The plaintiff was born in 1940 and is seventy-three years of age. He was sixty-eight at the time of the incident. He is a married man, but separated from his wife some years ago. He currently lives with his daughter and her partner and their two children.
5 He commenced work at the Melbourne Remand Centre in Lonsdale Street, Melbourne, in about 1999 as a cleaner. The cleaning contract was taken over by the defendant. According to the plaintiff’s affidavit, he was fit and active for a person of his age and had intended to work through to age seventy. He enjoyed his work and the people he worked with.
6 Before the incident, he claims he was active in domestic duties, and was able to assist his daughter in running the household and doing the heavier domestic chores. He has two brothers, one living in Bentleigh and one in Port Melbourne, whom he saw regularly.
7 His son, Nicholas, died of cancer in 2002.
8 His twin grandchildren were born in 2008.
9 Before the incident, he was in good health and, in particular, had no pain nor disability to his lower spine.
The Injury and Its Consequences
10 On 30 April 2008, the plaintiff was lifting a container of chemicals weighing approximately 25 kilograms in the course of his employment duties. As he lifted and twisted, he felt pain in his lower back. He reported to the nurse at work and completed his shift, although with difficulty. The following day, he attended his general practitioner, Dr Teng, who noted[1] pain and tenderness at the lower back at the levels of L4 to S1. There were global restrictions of lower back movements.
[1]Plaintiff’s Court Book (“PCB”) 33
11 Dr Teng arranged an x-ray and CT scan, which reported:
“At L3-4, mild posterior disc displacement is noted. Left facet joint osteophytes noted. Thickened ligamentum flavum is evident. The spinal canal is moderately narrow with indentation of the thecal sac.
At L4-5, posterior disc protrusion and thickened ligamentum flavum are noted. The spinal canal is markedly narrowed with impingement of the thecal sac.
…
Conclusion: Moderate spinal canal stenosis at L3-4 and severe spinal canal stenosis at L4-5.”[2]
[2]PCB 33−34
12 Dr Teng referred the plaintiff for physiotherapy. The physiotherapist provided a back brace which the plaintiff has worn regularly to the present time.
13 The pain in his lower spine persisted, and he was referred to Mr Greg Malham, neurosurgeon.[3] He saw Mr Malham on only one occasion in June 2008 and described lower back pain with reduced sitting and standing tolerance. There were reduced movements on examination and Mr Malham noted the CT scan which showed pre-existing lumbar spondylosis with a broad-based disc bulge at L4-5 with canal stenosis at L3-4 and L4-5. He advised against surgery and suggested the plaintiff continue with physiotherapy and a walking exercise program. He concluded that the plaintiff had aggravated pre-existing degenerative changes in his spine causing L4-5 discogenic pain.
[3]PCB 41
14 He has remained under the care of Dr Teng, who has provided a range of medication, including strong pain-relieving medication. At the present time, the plaintiff takes:
·Panadol Osteo, two tablets, three times per day.
·Normison, one tablet each night for sleeping.
·Brufen – anti-inflammatory.
15 He has also taken Tramal in the past.
16 Dr Teng was of the view, like all of the other doctors who have examined the plaintiff, that he had aggravated pre-existing degenerative changes in the lumbosacral spine.
17 At the time of the happening of the incident, the plaintiff was sixty-eight years of age. He ceased work after the incident, and has not returned to work since. He has now retired from the workforce.
18 The plaintiff has continued physiotherapy treatment with Mr Salerno. Funding was ceased by the insurer some time ago, but the plaintiff has continued the treatment under the Medicare system. He sees Dr Teng about each month for counselling, and the prescription of medication. He claims that he has flare-ups from time to time, the last being several weeks ago, which required him to attend Dr Teng.
19 As to the consequences of the injury, the plaintiff complains of constant lower back pain which fluctuates in severity and causes intermittent pain into the right leg, although the medical specialists could find no true evidence of referred sciatic pain. The pain requires the prescription of medication, and interferes with his sleep, causing him to wake several times each night and to walk around the house before attempting to get back to sleep.
20 He claims he is unable to do any maintenance or gardening. He lives with his daughter and her partner and is unable to assist with the heavier household chores. He has difficulty sitting or standing for more than half-an-hour. He still drives a car, but finds longer trips difficult. He continues an exercise program advised by the physiotherapist, including walking and strengthening exercises at home. He was unable to continue working until age seventy, as was his intention, and missed the social atmosphere of the work and the fact that it took his mind away from the grief caused by the death of his son.
21 He claims that his condition is worsening gradually as the years pass. Of particular significance, he claims, is that he is not able to interact with his two grandchildren in the manner he would have desired. He says that he is unable to lift them and play with them in the manner that he would wish.[4] He continues to wear the back brace, which he says provides support. He has difficulty walking up stairs and hills. He claims he is unable to go to the football, go fishing and work in the garden as he previously did, although there is no reference in his affidavit as to the extent to which he undertook these activities prior to injury.[5] He claims that because of the difficulties with driving, he is unable to visit his brothers in Port Melbourne and Bentleigh as often as he would wish, and is dependent upon his daughter for transport.
[4]PCB 27
[5]PCB 31
22 He says that his daughter and partner had arranged to take a trip to Fiji in August 2013, and according to his affidavit, “I would have dearly loved to have gone but had to decline the invitation because I know I would find it difficult to cope due to my back problems”.[6] However, in the course of cross-examination, he acknowledged that a significant reason for not going was that he did not have the available money.
[6]PCB 31.2
23 His daughter provided an affidavit[7] which was generally supportive of the claims of her father.
[7]PCB 31.4
Medical Opinions
24 It is unnecessary for me to detail the opinions of the various treating and consultant practitioners as, in a general sense, their diagnosis of the plaintiff’s condition is uniform. It is accepted the plaintiff had pre-existing, but asymptomatic, changes in his lower spine, in particular at the L3-4 and L4-5 levels. It is accepted that the incident of April 2008 aggravated that underlying degenerative change, causing the onset of lower back symptoms. According to his general practitioner, his prognosis remains guarded because of the chronicity of the pain and he expects the plaintiff will require the use of ongoing pain-relieving medications.[8]
[8]PCB 40.2
25 The plaintiff was examined by Mr Stanley Schofield, orthopaedic surgeon, in June 2010. He said the CT scan showed significant degenerative changes at the L3-4 and L4-5 levels. He said the incident caused aggravation in the nature of a disc prolapse either at L3-4 or L4-5. He said the plaintiff was likely to be restricted in his social, domestic and recreational activities and that the prognosis was guarded.
26 The plaintiff was examined in 2012 and 2013 by Mr Thomas Kossmann, orthopaedic surgeon. He diagnosed the plaintiff as suffering discogenic and mechanical back pain as a result of disc protrusion at L3-4 and L4-5 levels. He noted significant facet joint osteoarthritis at those levels, together with spinal canal stenosis. He said it was likely the plaintiff would suffer back pain for the rest of his life and was precluded from any form of employment. He said his social, domestic and recreational activities were impacted by the injury.
27 Dr Robyn Horsley, occupational physician, examined the plaintiff in July 2012. She noted the plaintiff presented with ongoing mechanical back pain with pre-existing lumbar spondylosis as a result of the workplace incident. She thought the origin of the pain was the L4-5 disc. She set forth a range of work restrictions and functional tolerance levels.[9] She thought those restrictions would continue.
[9]PCB 65
28 On behalf of the defendant, the plaintiff was examined by Mr Clive Jones, orthopaedic surgeon, in 2009. He noted the plaintiff appeared genuine and there was no functional nor psychosomatic factors. He thought the plaintiff had exacerbated pre-existing degeneration in his spine.
29 Mr Michael Shannon, orthopaedic surgeon, who examined the plaintiff in 2010 and 2012, came to a similar conclusion. He said there was significant and multi-level facet joint arthritis, particularly at L4-5, with a small disc bulge and mild spinal canal stenosis, without focal disc prolapse. He said the plaintiff was suffering ongoing mechanical back pain associated with degenerative changes in the lumbar discs and facet joints. He said the plaintiff’s back would be vulnerable to further injury, although he thought the back symptoms had improved to some extent between 2010 and 2012.
30 The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in 2011 and 2012. He concluded the plaintiff had aggravated naturally occurring degenerative disc disease in the lower spine in the work episode. He said he thought the ongoing symptoms were consistent with degenerative disease, and suggested the plaintiff manage his condition with an exercise program. He thought that the plaintiff would continue to have intermittent pain in the spine with some lower limb pain.
Video Surveillance
31 Video surveillance film of the plaintiff was shown,[10] in particular in 2011 and 2013.
[10]Exhibit 1
32 On 9 August 2011, the plaintiff was seen with his twin grandchildren, a boy and a girl then aged three years, at the front of his house. He was seen to lift his grandson up without apparent difficulty. He then, with another adult, drove to a local park with his grandchildren to feed the birds. At one point, he bent down to pick up a bag from the ground. He lifted his granddaughter, again without apparent difficulty, and carried her a distance of about 50 metres. He later carried her back, a distance of 50 to 100 metres. On a number of occasions, he jogged a very short distance, while playing with his grandchildren.
33 The next day, 10 August 2011, he took his grandchildren by car to an indoor play centre and at one point bent over to pick up a bag from the ground.
34 On 6 December 2011, the plaintiff, with another adult, travelled to the Werribee train station. He was seen to load a pusher into the back of the vehicle before driving to the station. He appears to have some difficulty lifting it. He and the grandchildren, together with the other person, go to the beach at Geelong. He was seen to slowly push a pram along the promenade. At one point, he pushed an unladen pram across the sand of the beach. In the course of cross-examination, he denied he could do this, although said he could drag an empty pram across the sand. Later in the day, he was seen with the grandchildren on a carousel, sitting on one of the horses and moving up and down. On several occasions, he briefly lifted his granddaughter.
35 On the next day, 7 December 2011, he was seen to take his grandchildren to a play centre.
36 Surveillance film of 8 April 2013 showed the plaintiff on a number of separate occasions jogging briskly over 10 to 20 metres.
37 In cross-examination, after the surveillance film was shown, the plaintiff said that he was able to do these activities, but suffered pain as a result, and had the support and assistance of a back brace. He said that it would appear the days on which the film was taken were “good days” and he was able to be more active.
38 According to Mr Smith, the video surveillance had a number of aspects. Firstly, the activities shown were inconsistent with the claim by the plaintiff in his affidavit that he was unable to play with his grandchildren, or lift them, in the manner he would wish.[11] Further, prior to this surveillance film being shown, he denied he was able to jog and denied he was able to push a pram across sand. Further, the activities shown, in a general sense, showed the plaintiff as being far more active and unrestricted than the claims set out in his affidavits, and the histories to the doctors. He said this affected the credibility of the plaintiff in relation to the whole of his evidence.
[11]PCB 27
39 Having viewed the surveillance film, I am not of the view that it impugns the plaintiff’s credit to the point that I would not accept all of his claims of pain and restriction. However, there are activities portrayed in the film which, in my view, are inconsistent with the statements of the plaintiff in his affidavit. On the days in question, he is actively involved with his grandchildren and lifts each of them on different occasions without apparent discomfort or restriction. It should be recalled, however, that at the time the film was taken, each child was three years old, and not particularly heavy.
40 On a number of occasions the plaintiff was seen to bend to the ground, bending both his back and knees, and on one occasion, lift a pusher. However, in my view, the film shows him doing so with some difficulty.
41 It is correct to say that the plaintiff denied being able to jog in the course of cross-examination but was seen to do so in the film on several occasions. However, the distance was particularly short, and the exertion involved modest.
Conclusions
42 It is clear the plaintiff suffered an aggravation of pre-existing degenerative disease, in particular at the L3-4 and L4-5 discs, in the workplace incident of April 2008. I accept the plaintiff had no low-back pain or restriction prior to that incident. It is clear from the CT scan, and the opinions of the various specialists, that the incident aggravated the disc disease and caused the onset of pain in the lower back. There is no issue that the injury caused the plaintiff to cease employment in 2008, and even although he was only going to work for another two years, he was unable to continue in that work, and enjoy the security and social environment that employment provided.
43 As stated, the surveillance film showed the plaintiff engaged in activities more extensive than he admitted in his affidavits, and to some extent, contrasts with his claims of pain and restriction. However, against this must be balanced the fact that video surveillance is a snapshot in time in the context of a person with back pain which fluctuates and is more controlled by pain-relieving medication on some days than others. Further, it is clear from the radiology that the plaintiff has significant degenerative problems at a number of lumbar levels which provides solid support for his claims of pain.
44 No doctor, on behalf of either the plaintiff or the defendant, suggests the plaintiff is exaggerating his symptoms, nor is there evidence of any functional or psychological elements in his claims of pain. Several of the defendant’s doctors referred to him as a genuine person.
45 Generally, I accept the plaintiff suffers ongoing pain of a fluctuating level in his lower back. I accept this requires the need for significant medication on an ongoing basis, and that that is likely to persist into the future. I accept that his sleep is disturbed on a very regular basis, and he requires medication to assist getting a good night’s sleep.
46 I accept his domestic and recreational activities are somewhat restricted, but that his involvement with his grandchildren is not as restricted as his affidavit would have it. I am not of the view, however, that the activities depicted in the video surveillance are sufficient to very substantially affect his overall credit.
47 In my view, particularly considering the pain from which the plaintiff is suffering, the opinions of the various medical practitioners, the effect upon the plaintiff’s sleep and the loss, albeit for a short period, of his employment, the consequences to the plaintiff do meet the “very significant” level as the legislation requires. Leave will be granted to the plaintiff. I shall make consequent orders.
- - -
0
0
0