Pirie v VWA

[2023] VCC 606

IN THE COUNTY COURT OF VICTORIA
AT GEELONG
COMMON LAW DIVISION
SERIOUS INJURY LIST Revised
Not Restricted
Suitable for Publication

CI-21-03208

DARREN PIRIE	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE FRAATZ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 and 29 March 2023
DATE OF JUDGMENT:	5 April 2023; Delivered ex tempore
CASE MAY BE CITED AS:	Pirie v VWA
MEDIUM NEUTRAL CITATION:	[2023] VCC 606

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:  Serious injury – impairment of the lumbar spine – pain and suffering – range

Legislation Cited:                Workplace Injury Rehabilitation and Compensation Act 2013, s335

Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Haden Engineering v McKinnon [2010] 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260

Judgment:Leave granted to the plaintiff to bring proceedings for pain and suffering damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Macnab SC with Ms P Prossor	Maurice Blackburn
For the Defendant	Mr R Kumar with Ms J Clark	Minter Ellison

HIS HONOUR: 

Introduction

1The plaintiff, Mr Darren Pirie, seeks leave to bring common law proceedings, pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘Act’), under paragraph (a) of the relevant definition of serious injury, for pain and suffering consequences only, for the permanent serious impairment or loss of a body function. The injury relied upon is to the lumbar spine.

2There is no dispute that Mr Pirie has suffered a compensable injury to the spine.  The issue is one of range. 

3The diagnosis of specialist occupational physician Dr Joseph Slesenger is soft tissue injury to the lumbar spine, aggravation of degenerative disease of the lumbar spine with no radiating features, and chronic lower back pain.[1]  I accept that opinion.

[1]        Report of Dr Joseph Slesenger dated 20 September 2022, Plaintiff’s Court Book (PCB) 59

Principles

4The relevant principles in an application of this type are well-known and not in dispute. Mr Pirie bears the onus of demonstrating his impairment is permanent and the consequences are serious. He must establish that the consequences to him, with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments and losses of body function, are fairly described as being more than ‘significant’ or ‘marked’, and at least ‘very considerable’ in accordance with the narrative test as set out in s325(2)(b)(c) of the Act.

5The consequences of injury for a particular worker begin with findings of fact. Assessment whether those consequences in terms of impairment satisfy the narrative test is largely a question of impression and value judgement. 

6In Haden Engineering v McKinnon [2010] 31 VR 1, the Court reviewed a number of decisions concerning the pain and suffering consequences of particular injuries, and in particular the plaintiff's experience of pain. The Court stated:

“10 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.

11   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.

12    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.” 

7In this context, whilst the reliability of Mr Pirie's evidence was not put in issue by the Victorian Workcover Authority (‘VWA’) at the outset, the credit of the plaintiff is a relevant issue concerning the seriousness of the injuries relied upon by the plaintiff.[2]  In this regard, I generally accept the evidence of Mr Pirie. He gave straightforward answers and made appropriate concessions from time to time, but not always. 

[2]        Johns v Oaktech Pty Ltd [2020] VSCA 10

8Mr Pirie's consistent refusal to accept history as given to doctors over time was concerning. I accept counsel for the VWA, Mr Kumar's submission that what Mr Pirie says to the doctors is most likely to be the most reliable account of his pain in the past.  To the extent his evidence as to his historical levels of pain are inconsistent with the medical record, I prefer the objective contemporaneous evidence of his doctors.  As his counsel, Mr Macnab SC, pointed out, however, the opinions of the various doctors proceeded on those histories and made findings on that basis, not on his oral evidence. 

9Otherwise, I considered Mr Pirie to be a witness of truth and did not consider his answers were deliberately untrue or artful, and he was, overall, doing his best to recall symptoms some years ago.  At the end of the day, I must decide the application on my findings as to his condition as at today's date.

Background

10By way of background the plaintiff is now aged 56 and lives in Ocean Grove.  Following completion of Year 11, he completed a plumbing apprenticeship.  He worked as a sole trader for a year before commencing work as a porter with Ansett for about 10 years.  He then worked in concreting before starting his own business as a plumber.

11In September 2008, he moved to Ocean Grove and commenced working with Rickards Heating and Cooling (‘Rickards’), and under his own ABN worked predominately for Rickards between 2008 and April 2018, when he ceased plumbing work.  It was in the course of his employment with Rickards, where he was required to undertake heavy and repetitive and awkward manual work, that he suffered injury to his low back.  He has not returned to work as a plumber and has found alternative employment. 

12In total, he worked in excess of around 20 years as a plumber.  In his first affidavit, he deposes:

“I have lost a great deal of confidence since suffering my back injury. I am frustrated by my inability to be as active as I once was. While I do love my new job, I am upset to have lost my trade, and that I am not able to work as a Plumber because of my injury. I do not know if I am capable of working more hours per week than I am now in my current role because of my back injury, and I am unable to earn anything near what I was capable of earning as a Plumber.”[3]

[3]        Affidavit of Mr Darren Pirie affirmed on 11 March 2021, para 17

13In his further affidavit:

“I feel down about the loss of plumbing as my chosen vocation.”[4]

[4]        Further affidavit affirmed 8 March 2023, para 15

14During the course of his oral evidence he said, “I love plumbing.  It was my trade, my skill”.[5]

[5]        Transcript (T) 38, Line (L) 16

Medical evidence

15In terms of the onset of his symptoms, the first record of a complaint of low back tightness was in May 2016 when he attended on his osteopath, complaining of right sided pain.  Mr Pirie had 12 sessions of treatment in 2016, four in 2017 and another four in 2018.

16He attended on his general practitioner, Dr Ahuja, in July 2017, complaining of a history of low back pain, and thereafter underwent CT of his lumbar cervical spine.[6] Mr Pirie commenced a program of massage with Andrew Oosterlaan, attending on six occasions in 2017. 

[6]        PCB 96

17X-ray of the lumbar spine was conducted in December 2017 with relatively normal measurable heights, and posterior elements intact.  It disclosed relatively normal joint appearances.[7] He continued to attend at his general practitioner, and further MRI of the lumbar spine later in December 2017 concluded there was mild lower facet joint degeneration.[8]

[7]        PCB 18

[8]        PCB 19

18On 15 December 2017, he attended on general practitioner, Dr Korns, at Epichealth Ocean Grove.  The progress note record includes a flare up of his back pain on that day, and he was prescribed Valium, which he had used in the past in order to treat his symptoms.[9]

[9]        PCB 11-12

19He continued to attend osteo and his general practitioner.  He was later trialled for anti-inflammatory medication but, ultimately, those efforts were unsuccessful in resolving his ongoing and unremitting pain, and he ceased plumbing work in approximately April 2018.  He thereafter presented to his general practitioner with chronic and persistent pain from time to time. 

20In October 2018, he commenced decompression therapy treatment at the National Institute of Integrative Medicine (NIIM), which effectively involves traction to relieve the symptoms in the spine.[10]  He attended NIIM for treatment:

(a)on 15 occasions in 2018;

(b)19 times in 2019;  and

(c)thereafter attending on an intermittent but consistent basis for a maintenance treatment program of decompression therapy every two or three months, until the date of this application. 

[10]        T9, L 9

21He also attends Kieser Therapy (physiotherapy) in order to manage his symptoms, the first attendance being in 2019.

22In August 2019, the plaintiff commenced employment with St John of God in alternative employment as a sterilisation technician.[11]  He currently works there 40 hours a week, full time.  He is happy at his current workplace with an elevated bench that is ergonomic.  The supportive working environment enables him to perform his duties at work,[12] although he still suffers from low back pain at the end of the day.[13]

[11]        PCB 12

[12]        PCB 65

[13]        T33, L 25

23There is a broad consensus in the medical opinion as to the nature of Mr Pirie's compensable injury.

24Dr Peter Wilkins on 18 December 2018 expressed the view that the diagnosis was a lumbar spondylosis at L45 and L5-S1 levels.  In his opinion, this is a degenerative condition, probably accelerated by the type of heavy work Mr Pirie has performed as a plumber over many years.  The heavy nature of the work he has performed is likely to have made a principal/major contribution to the development and later exacerbation of his condition.[14]

[14]        Report of Dr Peter Wilkins dated 18 December 2018, Defendant’s Court Book (DCB) 3

25Likewise, Mr Roy Carey on 11 December 2019 opined that:

“His current situation was produced by the subject injury.  His injury at work continues to materially contribute to his current condition.

…

He likely has aggravation of thoracolumbar, Scheuermann's disease and has some non-specific low back discomfort.  The prognosis is for continued discomfort into the foreseeable future.”[15]

[15]        Report of Mr Roy Carey dated 11 December 2019, DCB 14

26Mr Pirie was examined at the request of his solicitors on 9 January 2023 by Dr Alvin Pun, spinal surgeon, who diagnosed chronic non-specific mechanical low back pain secondary to lumbar spine disfunction, on a background of lumbar spine degeneration without radiculopathy.  Dr Pun was satisfied that the nature of work had contributed to the development and worsening of the low back symptoms.  The prognosis was guarded and, in his opinion, Mr Pirie may continue to suffer residual chronic low back pain in the foreseeable future, and his symptoms may deteriorate over time. [16]

[16]        Report of Dr Alvin Pun dated 9 January 2023, PCB 63

27For the VWA, Mr Rodney Simm in a report of 1 June 2021, diagnosed chronic non-specific mechanical low back pain with no history of radicular symptoms.  In Mr Simm’s opinion, it was reasonable to accept that his employment did initiate and aggravate his back pain, which has become chronic.[17]

[17]        Report of Mr Rodney Simm dated 1 June 2021, DCB 21, 26

28Dr Michael Baynes in a report of 1 July 2021, opined that Mr Pirie suffered from chronic lower back pain of a mild nature, which has been quite stable over the past years.  This is in association with degenerative changes in the lower lumbar spine associated with facet joint degeneration.[18] 

[18]        Report of Dr Michael Baynes dated 1 July 2021, DCB 28, 31

29Mr Kevin Siu in his report of 23 January 2023 states:

“I consider he most likely has suffered a soft tissue injury against a background of mild degenerative disease of the lumbar spine.

…

The examination is essentially normal, but that would not mean he didn’t sustain a soft tissue injury over his period of employment.”[19]

[19]        Report of Mr Kevin Siu dated 23 January 2023, DCB 37

30Against those opinions, Dr Michael Bloom is of the view that Mr Pirie does not appear to have any current physical traumatic injury.  In Dr Bloom’s opinion, Mr Pirie does have chronic intermittent non-specific low back pain that may possibly be related to minor degenerative changes in his low back:

“I think it likely that in the course of his work he did experience exacerbation of the symptoms of these degenerative changes in his low back from time to time, but such exacerbation of symptoms would be temporary because there are no sign of serious or persisting traumatic injury.”[20]

[20]        Report of Dr Michael Bloom dated 27 February 2023, DCB 47

31Overall, the weight of the evidence is predominantly to the effect that Mr Pirie suffers from an ongoing, compensable injury, and I note that the case was opened by the VWA on the basis that this was a range case.  I am satisfied as to the existence of compensable injury with persistent symptoms. 

32On the basis of the current medical evidence, there is no medical controversy that Mr Pirie is unable to perform his pre-injury employment as a plumber.  I refer to the opinions of Doctors Slesenger,[21] Pun,[22] Wilkins,[23] Michael Baynes,[24] and Michael Bloom,[25] together with the physiotherapist, Jordan Lane.[26] 

[21]        PCB 47 and 60

[22]        PCB 71

[23]        DCB 7

[24]        DCB 31

[25]        DCB 47-48

[26]        PCB 31

33Mr Pirie has been clearly advised to function and work within significant limitations, and I find that his restriction in activity is consistent with the medical opinions and advice he has received.

Consequences

34Mr Pirie's affidavits affirmed on 17 March 2021 and 8 March 2023[27] supported by his wife, Selena Pirie’s affidavit affirmed 23 March 2023;[28] and his oral evidence refer to various consequences due to his lumbar spine injury, which include the following: 

[27]        Affidavit of Mr Darren Pirie affirmed 8 March 2023, PCB 14

[28]        Affidavit of Ms Selena Pirie affirmed 23 March 2023, PCB 99

(a)his chronic, ongoing but mild to moderate pain, which can and does flare up from time to time;

(b)he has had to resign from his employment as a plumber with Rickards in April 2018, after some 20 years in his chosen profession. 

(c)whilst he enjoys his job currently, and the supportive working environment with an elevated ergonomic bench enables him to perform his duties, at the end of the day this very light work resolves into low back pain;

(d)his sleep is interrupted most nights by this low back pain.  Mr Pirie wakes on several occasions and has trouble getting to sleep;[29] 

[29]        T 33

(e)his chores at home are compromised.  Mr Pirie gave an example of being limited in his ability to conduct gardening to a period of 30 minutes or so, and that if he goes beyond one hour he suffers an increase in low back pain.  When his occurs, he must take Valium and stop everything;[30]

[30]        T34

(f)whilst he can still ride a bicycle, due to his low back pain he is unable to complete longer rides he previously enjoyed most weekends, such as the 30-kilometre Bellarine trail from Ocean Grove to Queenscliff and back;[31] 

(g)he is no longer able to surf.  This is because he experienced spasm in his low back while surfing, and he even has difficulty putting on a wetsuit;[32]

(h)lifting, bending and kneeling immediately cause distress to his low back, and the accepted medical restrictions are consistent with that experience of pain.  His doctors identify lifting restriction of 10 kilograms.[33] On his own account, he does retain capacity to lift more than that from time to time,[34] and he does from time to time engage in heavier work - for example, assisting a neighbour;

(i)he has low back pain if he stands for too long;[35] 

(j)whilst he still plays guitar in a band and makes his own guitars, he is now only able to do a small amount at a time.  Before his low back injury he could spend all day fashioning his instruments without restriction;[36]

(k)in order to control his symptoms in the low back, he attends a Kieser Therapy clinic to undertake guided exercise classes three times a week, self-funded.  If he is inconsistent with his exercise program, he experiences an increase in his low back pain.  He also has hands-on physiotherapy treatment once a month; 

(l)he undertakes traction therapy in Hawthorn on a regular basis, three times this year to date;

(m)he regularly takes over the counter medication; and Valium for flare ups, which occurs approximately four to five times a year; 

(n)he does home stretching daily and uses a heat pack on multiple occasions during the day, both before and after work, in order to obtain greater function and reduce the tightness and pain in his low back; and 

(o)his normal activities have the potential to and do cause him pain, including on occasion quite disabling pain involving low back spasms, which require him to rest and do very little.

[31]        T35

[32]        T36

[33]        PCB 72

[34]        T22

[35]        T38, L25

[36]        T38, L6

Analysis and findings

35This is a range case, and relatively finely balanced. 

36The VWA submits that, firstly, the various medical opinions are to the effect that his injury - chronic low back non-specific mechanical pain secondary to lumbar spine dysfunction on a background of lumbar spine degeneration without radiculopathy – is at the low end of the scale. 

37Secondly, objectively, Mr Pirie is in full time suitable employment with minimal ongoing restrictions. 

38As conceded by Mr Macnab SC, the social, domestic and recreational consequences alone might be viewed on the one hand as something less than very considerable.  However, I accept his submission that in combination with the loss of Mr Pirie’s capacity to perform his chosen occupation as a plumber, that overall the consequences of his impairment to the spine are serious and permanent. 

39It has been five years since Mr Pirie ceased work with Rickards and, on the balance of the medical evidence, he will continue to be so incapacitated for his pre-injury employment into the future.  To the extent that his condition is stable and he is able to work, that is so only because of his exercise and stretching regime, and avoiding domestic and recreational pursuits he enjoyed previously.  His life has been very significantly affected by his injury. 

40The combination of the constant pain, interference with work, domestic and recreational activity, and the requirement for ongoing medication and treatment since the age of 51, mean that the pain and suffering consequences to Mr Pirie are at least very considerable. 

41The extent to which Mr Pirie’s life has been compromised is significant when compared to other cases, including those that do not come before the court and, in my view, his pain and suffering consequences satisfy the narrative test. 

42Mr Pirie was unable to continue his work with Rickards, and I do not view the consequences to him as less serious merely because he has managed to pursue an alternative career. 

43Mr Pirie has retained the ability to do many things, but this has to be judged in context.  For each of those activities – work, domestic, recreational – he has either ceased the activity or otherwise only retained the ability to do them with regular conservative treatment, home-based exercises and stretching, use of medication and often performing them in a restricted or modified fashion, and confronting the proposition that he may have a flare up if he overdoes it.

44As the Court of Appeal stated in Dwyer v Calco Timbers Pty Ltd (No.2) (2008) VCSA 260, at [24]:

“The fact that a plaintiff has not had treatment for many years does not stand against a conclusion that continuing pain, although not disabling, is nonetheless a matter of some significance.”

45I pause to interpolate there that Mr Pirie undergoes significant treatment, in my view, in the context of his continuing pain. 

46Further, in Dwyer at [25]:

“In any event, so far as the pain and suffering consequences of the impairment were concerned, the appellant was simply asserting that an area of work which he had enjoyed had been closed off to him, and it was not in debate that such an area of work had been closed off to him.”

47I consider those comments apposite. 

48The Court of Appeal also recognised in Haden Engineering, at [15]:

“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his or her previous employment.  The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury.  It is simply one of the matters to be taken into account.  What matters in this regard is the extent to which an area of work which the plaintiff enjoyed has been closed off to him.”

49For those reasons, I am satisfied that Mr Pirie has sustained a compensable injury to the spine, that his impairment is permanent and that he has a serious injury by reference to his pain and suffering consequences. 

50Accordingly, I grant him leave under s335 of the Act to bring common law proceedings to recover non-pecuniary loss and damages for injuries sustained which arose out of or in the course of his employment.