Pisano v Precision Solid Plasterers Pty Ltd
[2011] VCC 1226
•26 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03160
| ROBERT PISANO | Plaintiff |
| v | |
| PRECISION SOLID PLASTERERS PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 and 8 August 2011 |
| DATE OF JUDGMENT: | 26 August 2011 |
| CASE MAY BE CITED AS: | Pisano v Precision Solid Plasterers Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1226 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the plaintiff suffered an aggravation of pre-existing injury to his lower back – whether the pain and suffering consequences and loss of earning capacity consequences were materially contributed to by the aggravation – whether an intervening event resulting in a further aggravation of the plaintiff's lower back materially contributed to the plaintiff’s pain and suffering consequences and loss of earning capacity consequences: section 134AB(38)(c)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC | Arnold Thomas Becker |
| with Mr J Brett | ||
| For the Defendant | Mr S Smith | Herbert Geer |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 20 July 2010 by which the plaintiff applies for leave, pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr P Jewell SC appeared with Mr J Brett of Counsel for the plaintiff and Mr S Smith of Counsel appeared for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. • Dr Ng, general practitioner, gave evidence and was cross-examined. •
The plaintiff tendered his Court Book ("PCB") pages 13-33, 42-52 and 62-70 and from the defendants Court Book ("DCB") pages 208-216: Exhibit A. The defendant tendered its Court Book pages 8, 17-91, 114-191, 194-201 and 256-257A: Exhibit 1.
• The defendant tendered the clinical notes of Dr Ng: Exhibit 2.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999;[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by sub-section (19)(a), sub-section (19)(b) and sub-section (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d)
Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e)
Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g)
Sub-sections (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined;
(h)
Sub-section (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(i)
Sub-section (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case;
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-s.(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application;
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: See Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11.
[2] Barwon Spinners, at paragraph 33.
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] [1994] 1 VR 436
8 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Previous Injury
9 The plaintiff was born on 18 March 1969. He is forty-two years of age. He was in a domestic partnership with the mother of his son. That relationship ended in 2001. A subsequent relationship ended in August 2007.
10 The plaintiff is a man with modest education. He left school after completing year 10. Subsequently, he entered the workforce undertaking labouring jobs.
11 Some time prior to 1998, the plaintiff was working for the defendant as a scaffolder. It is unclear precisely when the plaintiff commenced working for the defendant.
12 On 10 October 1997, the plaintiff saw Dr Ng with a complaint of lower back pain which he had experience for some five months or so. In an entry in Dr Ng's clinical notes bearing the above date it would appear that the plaintiff told Dr Ng that he had engaged in heavy lifting in his work as a scaffolder. Dr Ng referred the plaintiff to have a CT scan which was taken on 13 October 1997. On review on 14 October 1997, Dr Ng considered that the CT scan demonstrated that the plaintiff had suffered a posterior L4-5 disc bulge.[5] The radiologist reported that there was a posterior L4-5 disc bulge compressing the L5 nerve root bilaterally.[6]
[5] Exhibit 2 at page 5
[6] PCB 66
13 Dr Ng referred the plaintiff to Mr Tange, neurosurgeon. According to Dr Ng's clinical notes of 27 October 1997, Mr Tange wanted to operate straight away. He noted the plaintiff's reaction that Mr Tange’s advice “freaked him out”. The plaintiff did not return to see Mr Tange.
14 Dr Ng referred the plaintiff to see Mr Turner, orthopaedic surgeon, because the plaintiff continued to complain of lower back pain. Mr Turner saw the plaintiff on 8 April 1998. The plaintiff gave Mr Turner a history that there was no discrete injury to his lower back, but that he was involved in a lot of twisting. Mr Turner advised the plaintiff to persevere with conservative treatment.
15 Mr Turner referred the plaintiff to have an MRI scan which was taken on 14 April 1998. He returned to Mr Turner on 6 May 1998. At that stage, the plaintiff reported improvement, and that he was undertaking gym work and swimming. Mr Turner reviewed the MRI scan. He was of the opinion that it confirmed the presence of a left paracentral disc prolapse of L4-5 causing some impingement of the L5 nerve root.[7]
[7] PCB 23
16 Dr Ng’s clinical notes reveal that the plaintiff last complained of any lower back-related symptoms on 29 May 1998. The entry in the clinical notes of that date reveals that the plaintiff was working at that stage. He indicated to Dr Ng that he wanted to go back to work full-time. The note is very cryptic, but it would appear the plaintiff was contemplating going back to work from Monday to Friday, and that Dr Ng was contemplating placing a lifting restriction on him of no more than 10 kilograms.
17 There are no other entries in Dr Ng’s clinical notes relevant to any complaint of lower back pain until an entry dated 29 October 2004. On that occasion, the plaintiff told Dr Ng that he hurt his lower back three months beforehand. There was no traumatic incident. He was suffering left-sided sciatica down to his left foot.[8] Dr Ng referred the plaintiff to have a CT scan which was taken on 24 January 2005. The radiologist reported the presence of an L4-5 broad- based diffuse bulge with a more focal left paracentral disc protrusion impinging the anterior theca, with some impingement of the left emerging nerve root.[9]
[8] Exhibit 2 page 10
[9] PCB 63
18 Dr Ng referred the plaintiff back to Mr Turner. Mr Turner saw him on 31 January 2005. The plaintiff told him that he had suffered the occasional twinge in his lower back, but generally it had settled quite quickly. He told Mr Turner of the pain he experienced in October 2004 and that it was so bad that he was unable to walk more than 100 metres before having to stop and sit for about 5 minutes. He was still working as a scaffolder, but in a supervisory capacity.
19 Mr Turner examined the CT scan. He referred the plaintiff to have an MRI scan which was taken on 15 February 2005. Mr Turner reviewed the plaintiff on 18 March 2005. He was of the opinion that the MRI scan confirmed the presence of a moderate sized disc prolapse at L4-5 level on the left side and was consistent with the plaintiff's clinical presentation.[10]
[10] PCB 24
20 The plaintiff referred to the foregoing history in a very general way in his first affidavit. Essentially, he said that he sought treatment from Dr Ng, and then Mr Turner. He had some physiotherapy and rehabilitation and was then able to return to light duties and eventually the full-time scaffolding duties, as well is administrative work and quoting.
21 However, the plaintiff said that he had twinges of pain which appears to be consistent with the history he gave Mr Turner when he saw him on 31 January 2005.
22 In a report dated 27 April 2005, Mr Turner recounted the history of his treatment of the plaintiff from the first occasion on which he examined him on 8 April 1998 until his attendance on 18 March 2005. He appears to have accepted that the injury occurred in the course of the plaintiff’s employment as a scaffolder. He was of the opinion that the L4-5 disc prolapse was well documented from the time of the plaintiff's initial presentation on 8 April 1998 and that the recent radiology he had available in 2005 led him to conclude that the L4-5 disc prolapse was still present.
23 Furthermore, Mr Turner was of the opinion that the presentation of the plaintiff in 2005 represented what he described as:
"I believe the current situation represents a re-aggravation of pre-existing work-related injury and as such the current situation is also work- related."[11]
[11] PCB 24-25
24 Mr Turner saw the plaintiff again on 17 June 2005. The plaintiff told him that he had completed a rehabilitation program. Mr Turner recorded that the plaintiff told him that he basically had no pain, he was doing his own exercises and stretching at home and had ceased attending a gym. On examination, Mr Turner found the plaintiff's movements were quite free and comfortable except for straight leg raising which was limited to about 40 degrees, but otherwise he did not consider there were any neurological changes in the plaintiff's lower limb or localised tenderness in his lower back.[12]
[12] PCB 31
2005 and Following
25 Following the last occasion on which the plaintiff saw Mr Turner, the plaintiff said that he did not have any time off work, but continued with his scaffolding work. He was provided with administrative work by the defendant which resulted in his pain easing off. He was able to maintain his work at a reasonable level until 2007.
26 The plaintiff said that in late 2007, the amount of scaffolding work he was required to undertake increased, with the result that he was doing a lot of hands-on work which was often very heavy and physically demanding. He started to feel twinges of pain in his right leg which led him to see Dr Ng.
27 I return to Dr Ng's clinical notes, and in particular, the entry of 29 October 2004. According to that entry, the plaintiff did not complain of pain in his right leg, but left-sided sciatica down to his left foot. It should be noted that whether the plaintiff complained of any right leg pain until much later was in question. The plaintiff maintained that he reported right leg pain to Dr Ng and Mr Turner, but that is not disclosed in Dr Ng's clinical notes until June 2010 or in Mr Turner's reports.
28 In any event, it is clear from the foregoing clinical notes that when the plaintiff saw Dr Ng on 29 October 2004, he had been suffering from pain in his lower back for about three months. Dr Ng's clinical notes reveal that after an entry dated 10 February 2005, there were attendances for other medical conditions, but no attendances for treatment for the plaintiff’s lower back until 20 November 2007 when he saw Dr Ng for pain he was experiencing in his neck and mid-back. It is the next entry dated 26 November 2007 which is when the plaintiff again reported pain in his lower back and left-sided sciatica.[13]
[13] Exhibit 2 page 12
29 The plaintiff's attendance on Dr Ng on 26 November 2007 occurred as a result of work which the plaintiff was required to perform by the defendant. In his first affidavit, he described that work as follows:
“The next day he gave me a particular job to do, putting covers on weep holes at two houses. This required a great deal of bending, then at about two o'clock in the afternoon he rang me up and asked me if I could go to a supplier and pick up ‘a couple of buckets’ of colour. In fact when I arrived there there were 45 buck[et]s[14] of colour. In fact when I arrived there there were 45 buck[et]s weighing about 40 kilograms or more each. They were brought to my truck by forklift. I would stand on the back of the truck, taking them from the forklift and placing them on the truck. Then, back at the factory, I had to unload them by hand. By the end of the day I was in terrible pain."[15]
(sic)
[14] The plaintiff meant "buckets". He corrected the error in his second affidavit at PCB 19.
[15] PCB 15
The Plaintiff's Treatment Post-November 2007
30 When the plaintiff saw Dr Ng on 26 November 2007, he told him that the lifting of the buckets occurred on 23 November and that he developed left-sided sciatica that afternoon and overnight. Dr Ng put the plaintiff off work for one week and referred him for physiotherapy. The plaintiff told Dr Ng that the physiotherapy was not helping him.
31 The plaintiff saw Dr Ng on 28 December 2007. The plaintiff told Dr Ng that he was walking for exercise but because it stirred up his lower back pain, he stopped walking. Again, the plaintiff referred to having left-sided sciatic pain. Dr Ng considered that the plaintiff could go onto light duties at that stage.
32 Mr Turner saw the plaintiff again on 25 January 2008. He told him that he was having pain in his lower back with radiation of pain into his left leg, and, importantly, he recorded the following:
"He was also getting some pain in the right buttock."[16]
[16] PCB 32
33 Mr Turner examined the plaintiff on that occasion. He did not find any neurological changes in the plaintiff's lower limbs and no localising tenderness in his lower back. He referred him to have an MRI scan which was taken on 15 January 2008. The radiologist undertook a comparison with the MRI scan taken on 15 February 2005. Mr Turner made the same comparison. He then expressed the following opinion:
"An MRI scan confirmed degenerative changes in the L4-5 disc, with a small bulge/prolapse on the left side. This prolapse was a little less prominent than had been noted on the MRI scan from 2005."[17]
[17] PCB 32 and 67-68
34 Mr Turner last examined the plaintiff on 27 October 2010. He referred to a recent MRI scan. The most recent MRI scan was taken on 6 September 2010. The relevant part of the opinion of the radiologist is as follows:
[18] PCB 69
"2 A significant posterior and left paracentral disc bulge at L4-5 with some facet joint hypertrophy causing spinal canal stenosis, compression of the thecal sac and of bilateral descending L5 nerve root. There is some nerve root oedema on the right side."[18]
35 Mr Turner was of the opinion that the symptoms complained of by the plaintiff continued to arise from the L4-5 disc, which he considered stemmed from the original work injury; that is, in 1997. He did not consider that the plaintiff was a candidate for surgery. He considered that the plaintiff's lower back injury had stabilised, however, he considered that the plaintiff would continue to experience residual symptoms in his lower back with intermittent aggravations, and when such aggravations occurred, that it would be necessary for the plaintiff to cut back on his activities. He did not believe that there was much likelihood of the plaintiff's medical situation deteriorating, but considered that the severity of the plaintiff's symptoms would probably fluctuate from time to time.[19]
[19] PCB 32-33 and 43-44
36 The plaintiff next saw Dr Ng on the same day on which he last saw Mr Turner; that is, on 25 January 2008. Dr Ng’s clinical notes cease at an entry dated 20 January 2011. Between 25 January 2008 and 20 January 2011, the plaintiff consulted Dr Ng on numerous occasions for treatment for his lower back. He was also treated for depression.
37 The entry in Dr Ng’s clinical notes dated 1 August 2008 reveal that the plaintiff was progressively feeling down; depressed; socially withdrawn, and suffering a loss of motivation and libido. There are other entries relevant to the plaintiff’s psychological state on 12 January 2009 and 12 March 2009 which appear to be related to an unhappy relationship with his girlfriend. He was prescribed Zoloft. The entry dated 9 July 2009 reveals that he was feeling better and wanted to go off Zoloft. However, a subsequent entry dated 8 January 2010 refers to a resumption of Zoloft.[20]
[20] Exhibit 2, pages 15-17
38 Dr Ng's medical reports are rather short and not overly informative. The first medical report records the treatment he provided the plaintiff in 1998, 2005 and 2007 when the plaintiff suffered the initial injury and then aggravated that injury. However, rather than attribute responsibility for the occurrence of the L4-5 disc prolapse and recurrent left-sided sciatica to the plaintiff’s work in 2005 and 2007, Dr Ng was of the opinion that the plaintiff's work in the building industry overall largely contributed to the injury.[21] During his examination-in-chief he said that what occurred in 2004 (2005) and 2007 aggravated the original injury which the plaintiff suffered in 1997.[22]
[21] PCB 26-27
[22] Transcript 82
39 Dr Ng made no reference to causation in his second report dated 16 June 2011, but referred to the plaintiff’s pain worsening at that time, and that the plaintiff was unable to return to any work due to the nature of the physical injury.[23]
[23] PCB 45-46. It was an opinion he confirmed in his oral evidence at Transcript 80.
The Couch Incident
40 The plaintiff was off work for a substantial period of time. He was offered a job by his brother who conducts a furniture sales business in Geelong. He commenced working for his brother on 24 May 2010. He worked him until 21 June 2010.
41 The plaintiff moved a couch on 26 May 2010 at his brother’s showroom. The plaintiff described that incident as follows:
Q: “You spoke of, in your evidence Friday, sliding a couch?------ A: Yes, across the concrete floor, yes. Q: What sort of floor was it?--- A: A concrete floor. Q: Were there any wheels on the couch?--- A: No. Q: What sort of legs on the couch?--- A: Big, square. Q: How far did you have to slide it?--- A: Just pull it out the way, not even a metre, a metre-and-a-half. Q: Did you do it alone or with assistance?--- A: No, I did it alone, just one end. Q: What sort of strain and effort did you have to put in?--- A: A fair the bit, compared to what I used to be able to do, so I did
strain it. That's what it was, because when I pulled, I strained.Q: What sort of posture were you adopting while you were exerting
the force?---A: I was standing and twisted. Unfortunately there are some things
you can't change."[24][24] Transcript 113-114
42 The incident was one of some significance. The plaintiff attended Dr Ng on 7 June 2010. Dr Ng recorded the following:
"… since 24.5.10 in furniture shop apparently hurt himself on 26.5.10. Was moving a couch on the floor & felt pain in R leg as well as the ongoing L sciatica … ."[25]
(sic)
[25] Exhibit 2, page 17
43 Mr Smith cross-examined the plaintiff extensively regarding his complaints of pain in his legs, and put to the plaintiff that the only occasion that there is a record of a complaint of pain in his right leg was to Dr Ng on 7 June 2010. I have read the clinical notes carefully. The first reference to the onset of right leg pain in Dr Ng’s clinical notes is 7 June 2010.
44 The plaintiff said that he had spoken to Dr Ng several times about right leg pain before 7 June 2010. However, that is not borne out in Dr Ng’s clinical notes. When Dr Ng was asked by Mr Smith about any prior knowledge of the plaintiff suffering right leg pain prior to the consultation on 7 June 2010, he said it was the first occasion that he became aware that the plaintiff was suffering from right leg pain.[26]
[26] Transcript 86
45 Mr Jewell referred me to a number of medical reports in which there is reference to the plaintiff suffering from right leg pain:
•
Mr Baker, specialist in occupational medicine, examined the plaintiff on 2 December 2008. He recorded a history taken from the plaintiff that he was suffering from right-sided leg pain in about November 2007 which had settled.[27]
•
Dr Serry, psychiatrist, examined the plaintiff on 4 March 2009. He recorded a history taken from the plaintiff that he developed pain in his right leg in about November 2007.[28]
•
Dr Gill, psychiatrist, examined the plaintiff on 25 February 2010. He recorded a history taken from the plaintiff that he was suffering from pain affecting both legs.[29]
[27] DCB 31
[28] DCB 55
[29] DCB 65
46 Furthermore, Mr Jewell submitted that the plaintiff said in his affidavit sworn 10 March 2010 that the pain has always been in his legs, and that the pain in his right leg had eased. In context, that passage from the plaintiff's affidavit seems to be around the time when he handled the 45 buckets and subsequently attended Dr Ng.[30]
[30] PCB 15
47 I do not accept the plaintiff's evidence that he told Dr Ng that he was suffering from right leg pain before the consultation on 7 June 2010. What is clear to me from reading his clinical notes is that Dr Ng made fairly fulsome notes of the complaints made by the plaintiff not only in relation to his lower back injury, but in relation to other medical conditions for which the plaintiff required medical treatment. Dr Ng did not strike me as being other than a very careful medical practitioner whose clinical notes were of a good standard, evidencing the fact that he recorded important clinical features when informed of the same by the plaintiff.
48 Despite the foregoing, it is difficult to reconcile how it is that Dr Ng did not receive any complaints of right leg pain before 7 June 2010, but Dr Baker, Dr Serry and Dr Gill recorded a history of some history of right leg pain before that date.
49 I think it is more likely than not that the plaintiff did experience some right leg pain, but it was modest and not sufficiently troublesome to the plaintiff to report to Dr Ng or to Mr Turner. I will return to the subject of the couch incident and the injury which it caused later in these reasons.
The Medico-Legal Opinions
50 Mr Miller, orthopaedic surgeon, examined the plaintiff on 30 May 2011. He obtained a history of the plaintiff's injury in 1997, and the deterioration of his lower back condition in 2005, and then in 2007. He was provided with all the relevant radiology. His examination of the plaintiff demonstrated a reduction in all movements in the lumbar spine, but no neurological deficit.
51 Mr Miller was of the opinion that the plaintiff's work in general, and the work events to which he referred in the body of his report (that is, 2005 and 2007), aggravated the condition of his lower back, and that what occurred in 2007 led to a marked and permanent reduction in spinal function which Mr Miller said had persisted. He did not consider that the plaintiff was fit to undertake his pre-injury work, and that he would have difficulty working if he was exposed to repetitive bending, repetitive lifting, lifting of weights of 5 kilograms or more, and that he would need to shift his posture on a regular basis.[31]
[31] PCB 51-52
52 The plaintiff was examined by Dr Baker for the defendant on 14 February 2008, 18 June 2008, 2 December 2008 and 12 October 2009.[32] He was of the opinion that the plaintiff suffered an aggravation of pre-existing degenerative changes in his lower back as a result of the exacerbation of his symptoms in November 2007 which resulted in increased pain in his lower back and left leg. He was of the opinion that the plaintiff was unfit for his pre- injury work and was only capable of undertaking work with restrictions on his ability to lift, move weights and bend and twist. He suggested that the plaintiff not lift weights of more than 10 kilograms on a regular basis.[33]
[32] DCB 17-43
[33] DCB 39
53 The plaintiff was examined by Mr Buzzard, general surgeon, on 27 January 2009. The purpose of this examination was for Mr Buzzard to conduct an impairment assessment. His opinion is of very limited value, and indeed, Mr Smith did not specifically address me on his opinion. Mr Buzzard obtained a history of what occurred in 1997, and then in 2005 and 2007. He was of the opinion that the plaintiff was suffering from degenerative disease at L4-5 and, to a lesser degree, at L5-S1, with some degree of left-sided sciatica, but beyond that there is nothing much in his assessment which is of any particular moment.[34]
[34] DCB 48-49
54 Mr Simm, orthopaedic surgeon, examined the plaintiff on 29 June 2010. He obtained a history of what occurred in 1997, and then in 2005 and 2007. He was of the opinion that the plaintiff had aggravated L4-5 lumbar disc degeneration which was associated with an L4-5 lumbar disc protrusion with left-sided features, probably impinging on the left L5 nerve root. He considered that the pathological processes just referred to were well- established prior to November 2007 and that what occurred in 2007 was probably responsible for an exacerbation of symptoms of that established pathology.[35]
[35] DCB 78-79
55 Subsequently, Mr Simm was provided with the relevant radiology and reports from Dr Ng and Mr Turner, and also some vocational material.[36] He was asked to comment on the radiology. He was of the opinion that a comparison between the MRI scan taken on 14 April 1998 and the subsequent MRI scans taken on 15 February 2005, 15 January 2008 and 6 September 2010 did not demonstrate evidence of progression of the pathology shown on the first MRI scan.
[36] DCB 83
56 Mr Simm was asked a number of questions relevant to whether the plaintiff suffered any aggravation/acceleration in 2007. The relevant answer is:
"I believe his current condition is largely, if not completely, independent of any aggravation on 23 November 2007. The pain he experienced with physical work at that time was similar to the pain he has experienced with physical work on previous occasions. The pain was more an expression of the unsuitability of performing repeated heavy lifting because of underlying lumbar disc degeneration rather than the converse, that the heavy lifting influenced the lumbar disc degeneration and altered the underlying pathology. This man already had an established pattern of pain with heavy physical work. This was likely to continue and deteriorate with the ageing process."[37]
[37] DCB 87
57 Dr Ng was asked to consider the opinion of Mr Simm, and in particular, what was shown on the MRI scans and whether, in his opinion, there was any pathological change demonstrated by the later MRI scans. He said there was. The reports of the radiologist were read to him. He did not examine the MRI scans, nor did Mr Simm.[38]
[38] Transcript 99-100
Did the Plaintiff Suffer an Aggravation of a Pre-Exiting Injury?
58 The first question that arises for consideration is whether the plaintiff suffered an aggravation of the pre-existing injury diagnosed by Mr Turner which comprised a left paracentral disc prolapse of L4-5, causing some impingement of the L5 nerve root.
59 According to Mr Turner and Mr Simm, the appearances on the MRI scans between 1998 and 2010 are much the same. Mr Turner was of the opinion that the disc prolapse and the results of it were due to the original injury suffered by the plaintiff in 1997. In his last report dated 22 November 2010, he did not implicate what occurred in 2005 and 2007. He described what occurred in 2005 and 2007 as flare-ups, and used the word “aggravation” to describe the mechanism which resulted in the flare-ups.[39]
[39] PCB 32-33. In answer to a question in paragraph (e) of the relevant report, the use of the words "flare-up" of symptoms and the word "aggravation" interchangeably
60 Mr Turner did not say that, for instance, what occurred in 2007 was an aggravation of the pre-existing injury resulting in a further injury. It occurs to me that when he expressed his final opinion, that he understood from the plaintiff's history that the plaintiff had suffered some insult to his lower back in 2007, and in the context of that history, he did not say that what occurred in 2007 resulted in a further injury by way of aggravation.
61 The medical practitioners who have expressed the opinion that what occurred in 2005 and 2007 resulted in an aggravation; that is, a further injury, are Dr Ng, Dr Baker and Mr Miller. Their opinions are based upon the premise that the plaintiff suffered the disc prolapse and the results of it in 1997. Therefore, what arises for consideration is whether I should prefer the opinions of Mr Turner and Mr Simm or the opinions of Dr Ng, Dr Baker and Mr Miller.
62 The plaintiff said that after lifting the 45 buckets he was in terrible pain. He saw Dr Ng on 26 January 2007, after which he was provided medical treatment by Dr Ng. He was provided with certificates by Dr Ng which certified him as unfit for work. The plaintiff's weekly payments ceased within a matter of days before he took up employment with his brother in Geelong.
63 After ceasing employment with his brother, the plaintiff continued seeing Dr Ng. He saw Mr Turner again. He has been prescribed Tramadol for pain relief, and he also uses Nurofen for pain relief which he buys over-the-counter from a pharmacist. He takes two Tramadol per day in the morning and then Nurofen during the day.[40]
[40] Transcript 110
64 Apart from pain in his lower back, the plaintiff says that he has pain in both of his legs. The pain in his right leg has eased, but the pain in his left leg continues and fluctuates in intensity. When the pain in his left leg is particularly bad, he limps. He finds it difficult to sit, particularly when watching television or driving a car.[41] He is now in receipt of a social security pension.
[41] PCB 15 and 20
65 I accept the evidence of Dr Ng that the plaintiff suffered an aggravation of a pre-existing injury in 2007 which was sufficiently apparent to Dr Ng to see him treat the plaintiff by prescribing him medication and by referring him for paramedical treatment. Furthermore, it was also sufficiently apparent by Dr Ng considering that the plaintiff was incapacitated for work which resulted in him providing the plaintiff with medical certificates which entitled the plaintiff to be paid weekly payments of compensation.
66 I think the opinions of Mr Turner are poorly worded, and in saying that, I mean no disrespect to Mr Turner, but to use the word “flare-up” and also the word “aggravation”, makes it rather difficult to determine what he is really saying. What is clear is that he was in no doubt that the clinical picture demonstrated that it was the pre-existing injury which was the dominant cause of the plaintiff's pain and disablement, but what is also clear and not so well stated is that the plaintiff had suffered aggravations of the pre-existing injury resulting in flare-ups.
67 I have analysed the opinions of Mr Baker and Mr Miller. They both seem to have obtained a sufficient history of the pre-existing injury in 1997 and what occurred in 2005 and 2007 to be able to make an assessment of whether the plaintiff suffered an aggravation of pre-existing injury or not. I accept their opinions.
68 I reject the opinion of Mr Simm that the radiology demonstrates that what the plaintiff is suffering from now is only due to the pre-existing injury, and not to the aggravation. Initially, Mr Simm was of the opinion that the plaintiff had suffered an aggravation or acceleration of disc degeneration of L4-5 after he examined him on 29 June 2010.[42] He was less persuaded of that conclusion after he re-examined the plaintiff on 18 April 2011 at a time when he was provided with the most recent MRI scan.[43] However, he did not entirely discount that the aggravation had not resolved.
[42] DCB 78-80
[43] PCB 87
Did the Plaintiff Suffer a “Serious Injury”?
69 The difficulty in this application is what I am to make of the couch incident. The work the plaintiff undertook with his brother demonstrated that the plaintiff had recovery sufficiently to be able to work as a sales assistant.
70 The plaintiff was going along quite well until 26 May 2010 when he moved the couch. It is quite clear from the clinical notes of Dr Ng dated 7 June 2010 that that was the first occasion on which the plaintiff complained of right leg pain to Dr Ng. The plaintiff did not inform Mr Turner, Mr Miller or Mr Simm of that incident. Nor did he refer to it in either of his affidavits. He simply referred to working for his brother, and the reason he gave for stopping was because he could not cope with that work.
71 I think it is more than coincidental that after the couch incident the plaintiff returned to Mr Turner complaining of increased pain in his lower back and left leg and also pain in his right leg. It would appear that the plaintiff suffered a further aggravation as a result of that incident. The only evidence in that respect came from Dr Ng, who was of the opinion that the couch incident aggravated the plaintiff's lower back:
Q:
“There has been, doctor, on your understanding of it, no physical basis for a decline in his condition or an experience of greater pain since January 2008. Correct?---
A: No specific aggravating factors, except his symptoms have got
worse, yes.Q:
Yes, his symptoms have got worse. His worsening depression over time is a perfectly reasonable and logical explanation for him experiencing worsening symptoms?---
A:
Not necessarily. Because he started - in June last year, after helping his brother lifting the couch, after that his symptoms of the back pain got progressively worse and at that stage his depression was there, but nowhere as bad as it has been, say, this year.
Q: So the back pain worsened as a result of this incident working with
his brother. Correct?---A: It would have aggravated, yes, his injury."[44] [44] Transcript 92-93
72 The plaintiff was working full-time for his brother in the furniture shop. On some occasions he was there on his own. He spent a fair part of the day standing, and otherwise sitting. The main task he performed was as a salesman. The only difficulty the plaintiff had with undertaking that job was the long driving involved in getting to and from the furniture shop.[45]
[45] Transcript 64-65
73 It seems to me that the plaintiff was capable of working full-time in his brother's furniture shop, and on his own admission, had it not been for the long driving, the job was suitable. Dr Ng is of the opinion that the plaintiff aggravated his lower back moving the couch, and after that incident the condition of his lower back pain deteriorated.
74 I think there is an inference to be drawn that, as a result of the work which the plaintiff undertook, especially in 2007, that he suffered an aggravation of the pre-existing injury to his lower back, such that it produced symptoms of pain in his lower back and left leg and was productive of an incapacity for work until he was able to resume work in suitable employment as a salesman with his brother.
75 However, from the plaintiff's own account of the couch incident, it was an event of some significance. It produced more pain in the plaintiff's lower back and left leg and significant symptoms of pain affecting the plaintiff’s right leg. According to Dr Ng, the course of events for the plaintiff following the couch incident was a worsening of the pain the plaintiff experienced, the necessity to obtain medical treatment, and it was productive of a greater level of incapacity for work.
76 The difficulty I have with the state of the evidence is in determining whether the aggravation which preceded the couch incident caused an impairment of function of the plaintiff's lower back which is permanent, and whether that aggravation materially contributes to the serious injury consequences contended for by the plaintiff.[46]
[46] The test of “material contribution” was explained by Ashley JA in Grech v Orica Australia Pty Ltd (2006) 14 VR 602, which reasoning I applied in Filipowicz v Arnold Ribbon Co Australia Co Ltd; Filipowicz v AG Staff Pty Ltd [2011] VCC 287. I referred Filipowicz to Counsel; however, neither made reference to Grech or Filipowicz in their submissions, relying on the principle in Petkovski v Galletti (supra) relevant to proceedings based upon an aggravation of a pre-existing injury.
77 In the end, I am satisfied that the plaintiff suffered an aggravation of his pre- existing lower back injury, especially as a result of the work he undertook in 2007; however, it is obvious that he recovered to a reasonable degree, enabling him to return to suitable employment. The couch incident aggravated the plaintiff's lower back. It was responsible for the plaintiff being unable to work, and necessitated him having additional medical treatment.
78 I am satisfied that the plaintiff suffered a major injury to his lower back in 1997. I am also satisfied that the discal injury initially diagnosed by Mr Turner is the plaintiff's major problem, and presently the major cause of the impairment of function of his lower back.
79 I am satisfied that the plaintiff suffered an aggravation of pre-existing injury to his lower back, especially in 2007. I am satisfied that the plaintiff returned to a capacity for suitable employment, and that it was the aggravation caused by the couch incident which then resulted in his subsequent incapacity for that work.
80 The state of the evidence does not permit me to determine whether the aggravation following what occurred in 2005 and 2007 materially contributes to the pain and suffering consequences and loss of earning capacity consequences contended for by the plaintiff.
81 The only evidence I have on that score is the evidence of Dr Ng that both what occurred in 2005 and 2007 and the couch incident aggravated the pre- existing condition of the plaintiff's lower back, but he did not quantify the extent of the aggravation following what occurred in 2005 and 2007 and whether the consequences of that aggravation materially contribute to the state in which the plaintiff finds himself in now in terms of pain and suffering consequences and loss of earning capacity consequences.
82 Nor does the evidence relevant to the aggravation following the couch incident enable me to determine whether the consequences of that aggravation materially contribute to the state in which the plaintiff finds himself in now in terms of pain and suffering consequences and loss of earning capacity consequences.
83 I considered the plaintiff's application for loss of earning capacity separately, based upon the aggravation following what occurred in 2005 and 2007. If the couch incident had not occurred, I would have concluded that the plaintiff would not meet the statutory test.
84 Firstly, because it would appear that he was fit for work as a sales assistant in a furniture shop in the absence of needing to undertake long driving each day.
85 Secondly, the plaintiff's evidence concerning his capacity for work seems to be based upon whether Dr Ng considered that he was fit or not, in other words, he was following the advice given to him by Dr Ng.[47] Dr Ng was of the opinion that the plaintiff was no longer fit for any work; however, that was based upon a deterioration which he considered had occurred in the plaintiff's condition, and in particular, the plaintiff's presentation of right leg pain which Dr Ng considered had arisen as a result of the couch incident.[48] Before that deterioration, Dr Ng was of the opinion that the plaintiff was capable of working full-time in suitable employment with relevant restrictions.[49]
[47] Transcript 62-63
[48] Transcript 91-92
[49] Transcript 91
86 What is very clear to me from the evidence of Dr Ng is that the couch incident is of considerable significance. It is his opinion that until that time, the plaintiff was coping tolerably well. He was of the opinion that the plaintiff was capable of working full-time in suitable employment with relevant restrictions. His evidence makes it all the more apparent that the failure by the plaintiff to explain the couch incident in his affidavits and to examining medical practitioners has left a void in the evidence which makes it very difficult for me to determine whether the aggravation which occurred in 2005, and especially in 2007, are responsible for the pain and suffering consequences and loss of earning capacity consequences for which the plaintiff contends meet the statutory test.
Conclusion
87 On the basis of the foregoing reasons, findings and conclusions, I dismiss the plaintiff’s proceeding.
88 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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