Quach v Ryco Hydraulics Pty Ltd and VWA
[2012] VCC 872
•29 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-11-01910
| PHON QUACH | Plaintiff |
| v | |
| RYCO HYDRAULICS PTY LTD - and – VICTORIAN WORKCOVER AUTHORITY | Firstnamed Defendant Secondnamed Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 – 31 May 2012 | |
DATE OF JUDGMENT: | 29 June 2012 | |
CASE MAY BE CITED AS: | Quach v Ryco Hydraulics Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 872 | |
REASONS FOR JUDGMENT
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Catchwords: Section 134AB(16)(b) of the Accident Compensation Act1985 (Vic) – Pain and suffering and pecuniary loss – Psychological or organic injury – Injury to lumbar spine –Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C.W.R. Harrison S.C. with | Victorian Compensation Lawyers |
| For the Defendant | Mr N. Y. Rattray | Wisewould Mahony Lawyers |
HER HONOUR:
Introduction
1 This is an application for leave to bring proceedings for the recovery of damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1958 (Vic) (“the Act”) in respect of an injury to the plaintiff’s lumbar spine on or about 23 January 2009. The application is with respect to both pain and suffering and pecuniary loss.
2 The main issue in this case is whether the injury to the plaintiff’s spine is a “serious injury” as defined by the Act. The defendant contends that this is a case with a psychological or chronic pain element to it and that the plaintiff has retained a capacity for employment in a number of alternative occupations.
3 The parties rely on the court books filed in this matter and additional material filed during the running of the hearing. The plaintiff swore two affidavits in support of his application and gave evidence. In addition, the plaintiff called a neurosurgeon, Mr Craig Timms, to give evidence on his behalf.
Background
4 The plaintiff’s background was set out in his affidavit sworn on 21 December 2010 (“the first affidavit”). He was born on 17 March 1971 in Vietnam and is now 39 years of age. He migrated from Vietnam to Australia with his family in 1985. He has a son, aged two years old, from a previous relationship and is presently residing with the mother of his child.
5 The plaintiff completed up to Year 12 of schooling in Australia. Between 1994 and 2002, he worked as a croupier at the Crown Casino and between 2002 and 2003, he owned and operated a juice bar in partnership with another person. From 2003 onwards, he was employed in unskilled manual-type work, including working for Schiavello on a production line.
6 In September 2006, the plaintiff commenced employment with the defendant and became a full-time employee after a period of time. One of his duties with the defendant was operating an induction heating machine. Operating this machine included awkward and repetitive lifting of boxes of fittings from a pallet and onto the induction heating machine. Once the heating process was complete, the tin boxes had to be lifted off the machine and placed on a pallet. These boxes typically weighed between 12 and 18 kilograms.
7 During the course of his employment with the defendant, due to the heavy and repetitive nature of his work duties, the plaintiff began to notice pain in his back. He reported the pain to Dr Tan Phat Bach, who referred him for an X-ray on his lumbar spine in or about June 2008. Dr Bach informed the plaintiff that the results of his X-ray were not serious and he continued to work his normal duties.
The incident
8 On about 23 January 2009, the plaintiff was operating the induction heating machine. He was instructed to lift boxes of fittings from a pallet onto the machine and then after the heating process to put the boxes onto another pallet. The tin boxes were very hot to touch but the plaintiff was not provided with any gloves to perform this duty. On this particular day, he lifted a tin box of fittings off the machine and as the box was hot on his hands, he bent down quickly to place it onto the pallet. Whilst doing this, he felt a sharp and sudden onset of pain in his lower back, which was much more severe than any pain he had previously experienced.
Treatment
9 On or about 29 January 2009, the plaintiff consulted with Dr Hieu Nguyen, who referred him for a CT scan of his lumbar spine. This scan, which took place on 31 January 2009, revealed a L4-5 disc prolapse and L5-S1 facet joint osteoarthritis. In or about March 2009, the plaintiff consulted with Mr Craig Timms, neurosurgeon, for treatment of his work injury. On or about 15 April 2009, he had an MRI of his lumbar spine and an epidural injection was administered.
10 In or about May 2009, on referral from Dr Nguyen, the plaintiff consulted with Mr Ian Tran, physiotherapist, for treatment of his work injury including, but not limited to, hydrotherapy. In February 2010, he consulted with Brian Barrett, orthopaedic surgeon, and on or about 1 June 2010, he consulted with Dr Stephen De Graaff, pain specialist. In August 2010, he attended Epworth Rehabilitation in Camberwell for treatment.
Rehabilitation and return to work
11 Following the incident at work on 23 January 2009, the plaintiff continued to work and perform his normal work duties. However, he managed his work duties with difficulty and often took painkilling medication before and after work to alleviate at least some of his back pain. Eventually, the pain became too much for him and on 12 February 2009 the plaintiff stopped working and reported his injury to the defendant.
12 After about two days off work, the plaintiff returned to work and commenced performing light duties including but not limited to attaching plastic caps to fittings. He managed these light duties with increasing difficulty for about six weeks until the pain became unbearable. The plaintiff has not worked since 23 March 2009 and he was made redundant by the defendant on 26 May 2009.
Medical reports relied on by the plaintiff
13 In support of his case that he suffered a serious injury to his lumbar spine, the plaintiff relies on radiological results and opinions of his treating GP, Dr Hieu Nguyen, his treating specialists, Mr Craig Timms and Dr Stephen De Graaff, and his treating physiotherapist, Mr Ian Tran.
14 In addition, the plaintiff also relies on the reports of a number of medico-legal experts, including the reports of Mr Thomas Kossmann, Professor Kenneth Myers and Dr David Middleton.
i) Radiology
15 The CT of the lumbro-sacral spine of 2 February 2009 concluded that there was moderate to marked L4-5 lumbar canal stenosis secondary to a central L4-5 disc prolapse and queried as to whether there was cauda nerve root impingement. In addition, there was mild L5-S1 lumbar canal stenosis secondary to a central L5-S1 disc bulge and moderately severe bilateral L5-S1 facet joint osteo arthritis (PCB p. 40).
16 The MRI of 15 April 2009 concluded that there were minor degenerative changes at the L2-3, L3-4 and L4-5 intervertebal discs. In addition, that there was a moderate indention of the thecal sac and lateral recesses at L4-5 due to short pedicles and thickening of the ligamentum flavum.
17 The MRI of 18 April 2011 was ordered by Mr Timms and he compared this MRI with the MRI scan of 15 April 2009. The impression was that there was no apparent change compared with the previous study. Degenerative change was noted, mainly of the posterior elements. There was no evidence of disc degenerative changes that was impinging on the traversing or existing nerves. The central canal remained adequate throughout.
18 An MRI of the lumbar spine of 8 March 2012 concluded that there was multilevel disc decimation and mild facet joint degeneration but no significant central canal or exit foramina stenosis nor neural compression (PCB p. 43).
ii) Dr Hieu Nguyen
19 In his report dated 31 July 2011, the plaintiff’s treating GP, Dr Nguyen, provided a history of his treatment of the plaintiff and a diagnosis. Dr Nguyen first saw the plaintiff in relation to his back injury on 29 January 2009 and referred him to Mr Craig Timms, for diagnosis and treatment of the lumbar spine injury, to Mr Brian Barrett, for a second opinion regarding the lumbar spine injury, and to Dr Tung Nguyen, a psychiatrist, for his mental state.
20 On the basis of the CT scan on 2 February 2009 of the plaintiff’s lumbar spine and the MRI of 15 April 2009, Mr Nguyen reported that the plaintiff had a L4-5 disc prolapse and L5-S1 facet joint osteoarthritis. The plaintiff had a CT guided epidural, which only helped his pain for a few weeks and showed little response to physiotherapy and analgesics and was complaining of a lot of pain in his lower back and left leg.
21 Mr Nguyen believed that plaintiff’s employment was a significant contributing factor to his back injury and that his back condition and secondary depression were a result of his injury. With respect to the plaintiff’s work capacity, he believed that, although he presently had no capacity for work, he would eventually have some capacity for light duties (PCB p. 56).
iii) Mr Craig Timms
22 The plaintiff’s treating neurosurgeon, Mr Timms, wrote to Dr Nguyen regarding the plaintiff’s condition on a number of occasions. In his letter of 20 March 2009, Mr Timms was of the opinion that the plaintiff’s most recent scan was “suggestive of a broad based disc bulge and some central stenosis at the level of L4-5 which was mild to moderate at best”. Mr Timms suggested that a CT guided steroid injection may alleviate the plaintiff’s pain suffering (PCB p. 44).
23 In his letter of 4 May 2009, Mr Timms “suspected” that with a course of physiotherapy and hydrotherapy, all of the plaintiff’s symptoms would improve. He considered that, at this stage, the plaintiff was not quite ready to return to work in any capacity. However, Mr Timms was “sure that with a few weeks course of these treatments”, the plaintiff may be able to “consider a gradual reduced duties return to work” (PCB p. 45).
24 On 13 April 2011, Mr Timms informed Dr Nguyen that despite pain management courses, the plaintiff's symptoms were worsening. He was having “increasing back pain and sciatica, more on the right leg than the left”. On examination, he had decreased straight leg raising with good strength and some abnormal sensation in the right (PCB p. 46).
25 On 11 May 2011, Mr Timms reported to Dr Nguyen inter alia that the plaintiff’s “repeat MRI scan today shows some inflammatory changes but no significant neural compression and good alignment” (PCB p. 47).
26 When Mr Timms was cross-examined, he agreed that, in accepting what the plaintiff had told him about the lifting incident, as far as the accident was concerned the plaintiff suffered an aggravation of his degenerative changes (transcript p. 69). In addition, he agreed that there was no evidence of a frank protrusion or prolapse but only a bulge at L4-5 (transcript p.70).
27 In so far as an organic explanation for the plaintiff’s pain was concerned, Mr Timms described him as having “a disc injury and mild stenosis at the level of L4-5” (transcript p. 72). While he agreed there was no radiculopathy, he also gave evidence that it was the aggravation of the plaintiff’s underlying lumbar canal stenosis/disc injury at L4-5 which caused back pain and sciatica (transcript p. 84).
28 With respect to the plaintiff’s pain, while Mr Timms agreed that he was reliant on what the plaintiff told him about it, he disagreed with the suggestion by counsel for the defendant that the plaintiff’s pain was “disproportionate to the injuries”. Mr Timms said:
“I’ve said a few times that patients express pain differently from patient to patient, depending on how they feel and experience it, and some don’t have very much changes on their scan or in their spine, and others do” (transcript p. 84).
29 On 11 May 2011, Mr Timms provided the plaintiff with a medical certificate providing that he was totally incapacitated for work. When giving evidence, Mr Timms maintained the opinion that the plaintiff was not fit for his pre-injury job and that he was not fit for other kinds of work based on his pain and symptoms (transcript pp. 76-86).
iv) Mr Brian Barrett
30 In his report of 12 February 2010 to Dr Nguyen, Mr Barrett stated that:
“This young man has three lumbar discs with varying disruption from L2 to L5 level and I carefully explained to him the nature of these lumbar disc ruptures, the way they are produced and the need to avoid bending and heavy lifting or pushing activities into the future. His treatment really revolves around conservative measures and a return in the future only to light work in which the bending and heavy lifting situations have been eliminated.”(PCB p. 54).
v) Mr Ian Tran
31 In his report of 11 May 2009, Mr Ian Tran, physiotherapist, made objective findings which included “marked increased paravertebral muscle spasm and tenderness in the lumbar region”. His diagnosis was L4-5 nerve root irritation and the proposed treatment was hydrotherapy, a functional restoration program and core stability exercises.
vi) Dr Stephen De Graaff
32 Dr Stephen De Graaff, a rehabilitation expert, reported to Dr Nguyen on four occasions. On 25 November 2010, he reported inter alia that the plaintiff had completed his outpatient pain management program at Epworth in Camberwell. In addition that at this point, the plaintiff “remained significantly disabled with respect to his pain and hopefully this would improve over time” (PCB p. 49).
33 On 7 April 2011, Dr De Graaff’s reported that the plaintiff’s lumbar spine remained restricted in motion, and that he had extremely poor sitting and standing tolerances. His sitting tolerance was generally eight and a half minutes and beyond this, it becomes incredibly painful.
34 On 24 November 2011, Dr De Graaff reported that the plaintiff’s “ongoing mechanical lower back pain and neuropathetic leg (worse in the right than the left) continues to limit his day to day function”. He described the plaintiff as being “quite despairing about this situation and really struggling on a day to day basis”. The plaintiff was on Cymbalta 120mgs daily as well as Panadeine Forte, up to 4 per day, and Dr De Graff suggested that it might be appropriate for him to try a stronger analgesic (PCB p. 51).
35 On 29 December 2011, Dr De Graaff reported that the introduction of Targin had improved the plaintiff’s pain profile a little. The plaintiff still rated his pain as severe (as “7-8 on a visual analogue scale”) and he was still noticing electric shocks through his medial left thigh down to the knee and calf but he was coping a little better (PCB p. 52).
vii) Mr Thomas Kossmann
36 Mr Kossmann, an orthopaedic surgeon, provided the plaintiff’s solicitors with a report dated 29 March 2012. His diagnosis of the plaintiff’s condition was “discogenic and mechanical back pain on the basis of multilevel disc prolapse at L4-5, L5-S1 and bilateral facet joint osteoarthritis, predominantly at the L5-S1 level”.
37 Mr Kossmann’s prognosis for the future was pessimistic as, in his opinion, the plaintiff “would suffer for the rest of his life from pain in his lumbar spine”. In addition, although he was not presently a candidate for surgical intervention, Mr Kossmann could not exclude completely that he would not have to undergo surgery at some later stage of his life.
38 With respect to the plaintiff’s work capacity, Mr Kossman was of the opinion that his chances of finding work were limited. There was no capacity for full-time unrestricted or pre-injury employment, only employment with a weight lift restriction of 10 kilograms and a requirement that he was not forced to bend or twist his body in a repetitive manner.
viii) Professor Kenneth Myers
39 Professor Myers provided the plaintiff’s solicitors with two reports. In his report of 13 March 2012 (PCB p. 81), he believed that:
“all of the plaintiff’s present difficulties resulted from lifting in the course of his work activities as described”. His diagnosis was “aggravation of pre-existing previously relatively asymptomatic degenerative intervertebral disc disease in the lumbar spine”.
40 In his opinion, the plaintiff had no capacity for full-time unrestricted manual or pre-injury employment and “the ongoing pain in the back” would make it “impossible for him to obtain any alternative form of employment”. The plaintiff’s physical disability resulted from physical injury quite separate from any psychological condition.
41 In Professor Myers report of 14 May 2012 (PCB p. 87), he rejected the positions of ticket salesman, tester and tagger, security guard and light retail assistant as being suitable for the plaintiff on the basis that:
“each of these activities would require both prolonged standing and some degree of lifting which will aggravate the problems causing worsening symptoms in the low back which would worsen and prevent him from continuing in any such employment”.
42 In his opinion, the plaintiff’s back pathology would be permanent and the physical lumbar spine pathology constituted a “very significant medical problem, restricting domestic, recreational and employment activities”. In addition, he believed on the balance of probabilities that the condition “would not be symptomatic and incapacitating had it not been for causational aggravation or lumbar pathology in the course of his work activities, particularly on 23 January 2009”.
ix) Dr David Middleton
43 In his report of 14 May 2012, Dr Middleton diagnosed the plaintiff as suffering from a significant derangement of L4-5 disc aggravation of previously asymptomatic L2-3, L3-4, L4-5 and L5-S1 age related discs. In addition with an aggravation of lower facet joints of the lumbar spine, in particular, L5-S1.
44 The cause of the plaintiff’s injuries was the work that he carried out for the defendant. His lumbar spine was permanently damaged as a result of the tasks. Due to his failure to recover, he had developed a chronic adjustment disorder with severe depression and a chronic pain syndrome.
45 The contribution of the physical injury to his pain and suffering and loss of earning capacity was 75 per cent, the remaining 25 per cent being due to the psychological injuries. The plaintiff did not have the capacity for full-time unrestricted manual or pre-injury employment taking into account his age, background, education and prior work experience. His prognosis was poor.
Medical reports relied on by the defendant
46 The defendant accepts that the plaintiff’s injury is work-related and that there was an aggravation of degenerative changes in his lumbar spine. As I stated at the outset of this judgment, the real issue relates to whether or not the disabling consequences suffered by the plaintiff are due to the organic injury to his lumbar spine, or they are in the nature of a psychological/psychiatric response to the injury.
47 The defendant relies on the opinions of Mr Michael Shannon, Mr John O’Brien, Mr Michael Dooley and Mr Roy Carey as supporting the case that the injury to the plaintiff’s lumbar spine was not a significant one (in particular as there were no radicular or neurological signs) and that his response to such an injury was inconsistent with such an injury. The defendant also relies on the MRI of the lumbosacral spine of 18 April 2011.
i) Dr Bruce Love
48 Dr Love, a clinical Associate Professor of orthopaedic surgery, saw the plaintiff in his rooms on 12 March 2009. His examination revealed “a mobile lumbar spine without any restriction of movement, straight leg raising was full, there were no abnormal neurological signs”.
49 Dr Love regarded the CT of the plaintiff’s lumbar spine as being “non-specific” and he did not accept the definition that there had been a disc prolapse. Rather, he assumed that the plaintiff had suffered a ligamentous soft tissue injury.
50 In his opinion, the plaintiff’s work had been a major contributing factor which at that time had not resolved and was materially contributing to his incapacity for normal work and the need for treatment. However he was not unfit for all work (report 13 March 2009).
ii) Mr Michael Shannon
51 In Mr Shannon’s opinion, the plaintiff had mechanical back pain associated with mild multilevel lumbar disc degeneration but there was no evidence of radiculopathy. The nature of his work and the specific lifting could well have resulted in aggravation of these underlying degenerative changes producing disc bulging and mild stenosis.
52 Mr Shannon’s view as to the MRI scan performed in April 2011 was that it showed that the plaintiff’s disc bulges had decreased in size since the original scan in 2009, particularly at L4-5. On physical examination on 1 March 2010, he found the plaintiff’s straight leg raising to be 80 per cent and he found no muscle wasting or reflex abnormality (report of 3 March 2010).
53 Most importantly as far as the defendant’s case is concerned, on his physical examination on 4 April 2012, Mr Shannon found that there were non-organic features to the plaintiff’s presentation manifested by a significant deterioration in his apparent range of movement and the development of Waddell signs (report of 12 April 2012).
54 With respect to the plaintiff’s work capacity, Mr Shannon considered that although he was not fit for his pre-injury duties, the plaintiff was fit for light physical work working pre-injury hours with restrictions, in particular on prolonged or repetitive bending or lifting jobs. Suitable employment for the plaintiff included work as a gaming attendant, cashier, call centre operator, car park attendant or retail sales assistant provided the above restrictions were maintained.
iii) Mr John O’Brien
55 In his report of 20 March 2010, Mr O’Brien described the plaintiff as presenting with a“ moderate disability” associated with his constant back pain. The history indicated that employment was a significant contributing factor and “given the multiple level changes noted on X-ray”, the clinical evidence suggested that the plaintiff had “symptomatic lumbar spondylitis”.
56 Given the prolonged nature of the patient’s back pain and its response to conservative treatment, Mr O’Brien was “very guarded in relationship to the prognosis”. The plaintiff was not capable of returning to his pre-injury occupation or any unrestricted manual employment. However, he was not totally incapacitated and would be physically capable of undertaking modified duties which did not require any significant lifting, bending or prolonged position.
iv) Dr John Douglas
57 In his report of 26 May 2010, Dr Douglas, a consultant psychiatrist, diagnosed the plaintiff as having “low back pain which was persistent”. In his opinion, while there were times when the plaintiff was despondent or unhappy, “these would be the normal response to disability and persistent pain” and he did not have a psychiatric disorder.
v) Mr Michael Dooley
58 The defendant relied on two reports from Mr Dooley, dated 15 February 2011 and 12 April 2011. In his report of 15 February 2011, Mr Dooley diagnosed the plaintiff as suffering from “degenerative disc disease of the low lumbar spine”. He believed that the plaintiff aggravated the underlying degenerative disc disease of the lumbar spine in the work related episode of January 2009.
59 However, Mr Dooley also described “the constancy and intensity” of the plaintiff’s ongoing pain as being “greater than one would expect to see”. In his opinion, the plaintiff had developed a chronic pain syndrome. The fact that he had been in ongoing pain two years after the episode was, in Mr Dooley’s view, a manifestation of his psychological condition rather than a reflection of the organic injury sustained at the time.
60 In reaching this conclusion, Mr Dooley commented that the restriction of the lumbar spine motion was “far greater than he would expect to see” and that the “alteration of sensation in a non-dermatomal distribution is more indicative of psychological reaction than a result of organic injury”.
61 With respect to the plaintiff’s work capacity, Mr Dooley would expect him to have difficulty with heavy physical work and activity that involved regular bending and lifting. However, light physical work or clerical duties were suitable.
vi) Dr Michael Baynes
62 In his report of 2 June 2011, Dr Baines was also of the opinion that the plaintiff was suffering from a chronic pain syndrome which he described as being “associated with chronic lower back pain with some referred pain mainly to the right lateral thigh”.
63 In his opinion, the radiology revealed degenerative change to a minor degree at L2-3, L3-4 and L4-5 lumbar disc and the facet joints affecting the lumbar spine. There was evidence of abnormal illness behaviour with positive Waddell’s signs. The plaintiff had a capacity for full-time work with restrictions of no lifting greater than 10 kilograms, no repetitive lifting from below knee height or above shoulder height.
vii) Mr Roy Carey
64 Mr Carey, orthopaedic surgeon, provided the defendant with two reports, dated 17 April 2012 and 22 May 2012. In his opinion, the plaintiff had chronic and non-specific low back pain most likely due to aggravation of pre-existing asymptomatic lumbar spine spondylitis sustained in the course of his normal work on 23 January 2009. There was also some evidence of chronic pain syndrome.
65 Mr Carey considered that:
“The nature of the objective physical findings and that of the minor and degenerative changes of longstanding seen on imaging would suggest that most of his current clinical presentation relates to an idiosyncratic psychological response to injury rather than a major organic spinal injury”.
viii) Dr Tung Nguyen and Dr Albert Kaplan
66 The defendant also relied on the reports of two psychiatrists Dr Tung Nguyen and Dr Albert Kaplan contained in the plaintiff’s court book.
67 Dr Tung Nguyen reported on 24 March 2011, that the plaintiff was suffering from major depression with typical features and mild anxiety in the context of chronic pain and disability secondary to the work-related injury. He had become socially isolated and his level of function decreased significantly since his injury (PCB p. 57).
68 In his report of 14 May 2011, Dr Tung Nguyen stated that:
“ Phon’s inability to resume to work due to chronic pain, depression and anxiety continued to perpetuate his depression. He often feels helpless and hopeless regarding his current situation. It appears that he has been depressed for several years as a result of his injury and changed situation. It is likely that the depression and anxiety will remain in the picture unless his pain levels and disability improve” (report p. 3).
69 In terms of a prognosis he stated inter alia:
“At this stage, it is difficult to envisage that he could return to work in the near future due to the combined impact of his physical and mental conditions. However, if his pain improves to a significant degree with treatment, he may be able to return to work part time” (report p. 3).
70 Dr Kaplan reported on 16 April 2011 that the plaintiff was suffering from an adjustment disorder with mixed anxiety and depressed mood. This condition was related to his physical injury, his chronic pain, the physical limitations imposed upon him by his pain and his inability to obtain suitable employment.
The Injury
71 The onus is on the plaintiff to establish that he has suffered a compensable injury on or after 20 October 1999 and to sufficiently establish the injury. I am satisfied, on the balance of probabilities, that as a result of the incident on 23 January 2009, the plaintiff suffered an aggravation of degenerative changes in his lumbar spine at L2-3, L3-4 and L4-5 with disc bulging at L4-5 and mild stenosis.
72 I consider that this finding is supported by the MRI of the plaintiff’s lumbar spine on 15 April 2009 and the most recent MRI of 18 April 2011, which concluded that there was multi-level disc decimation and mild facet joint degeneration but no significant central or exit foramina stenosis nor neural compression.
73 This finding is consistent with the opinion of a number of the plaintiff’s medical experts, including his treating neurosurgeon Mr Timms, Mr Barret and Professor Myers. In addition, there is support from the defendant’s medical experts, including Mr Shannon, Mr O’Brien, Mr Dooley and Mr Carey.
74 While I accept that there is a psychological contribution to the plaintiff’s pain and suffering, I accept the opinion of Dr Middleton that it has developed as a result of the physical injury failing to recover and that the physical injury is the predominant cause of his pain and impairment. His opinion is supported by both Dr Nguyen and Dr Kaplan in that they are both of the opinion that the plaintiff’s depression and anxiety are related to his pain and disability.
75 This means that I accept the evidence of Mr Timms, which is essentially that the aggravation of the plaintiff’s underlying lumbar canal stenosis/disc injury at L4-5 has caused his pain and sciatica. Mr Timms is the plaintiff’s treating neurologist and, as such, he has had the advantage of observing the plaintiff over a lengthy period of time (from 2009 until 2011).
76 In so far as Mr Timms’ opinion is that the source of the plaintiff’s pain is organic in origin, it is supported by Mr Stephen De Graff, who:
· on 7 April 2011, reported that the plaintiff continued to utilize Voltaren and Panadeine Forte in an attempt to control his pain (PCB p. 50).
· on 24 November 2011, suggested that it would be appropriate for the plaintiff to “try a stronger analgesic given his lack of response to his current regime and despairing situation”.
· on 29 December 2011, given that Targin had improved the plaintiff’s pain profile a little, suggested to him that he increase his Targin dosage to 20/10 tablets daily “to better control his pain and help with his day to day functioning” (PCB p. 52).
77 There is also support for a finding that the plaintiff’s pain and disablement is largely due to the organic injury/aggravation to his back from Dr Hieu Nguyen, his treating GP. Dr Nguyen reported, on 31 July 2011, that the plaintiff was currently taking Voltaren and Panadeine Forte to control his pain and Cymbalta for his depression. He believed that the medications were “helping him cope with the pain and depression and allowing him to perform his activities of daily living” (PCB p. 56).
78 Professor Myers concluded that the plaintiff’s disability resulted from “his physical injury quite separate from any psychological contribution” and Mr Kossman’s opinion was that the plaintiff “will suffer for the rest of his life from pain in the lumber spine”.
79 I reject the opinions of Mr Dooley, Mr Carey and Mr Baynes, which are essentially that the plaintiff’s reaction to relatively mild lumbar spine pathology was psychological rather than a result of the organic injury. Mr Dooley appeared to reach this conclusion on the basis of observing restriction of motion in the plaintiff’s lumber spine which was greater than he expected to see. In his report, he also commented that “the altered sensation in a non-determtomal distribution was more indicative of a physical reaction rather than a result of an organic injury”.
80 However, when Mr Timms was asked in cross-examination if he agreed with Mr Dooley, that “non-dermatoral distribution is not entirely consistent with an organic injury” he disagreed. In addition, although Dr Kaplan had noted Mr Dooley’s conclusion, he accepted that the plaintiff’s chronic pain was related to organic factors on the basis that there appeared to be a consensus of opinion in this respect in the medical reports he was provided with (those of Dr Entwistle, Dr H Nguyen, Dr S De Graaff and Mr Barrett).
81 While in his report Mr Carey referred to observing non-organic abnormal illness behaviour, Mr Timms was “not aware” of the plaintiff’s presentation to him being consistent with a chronic pain syndrome. In addition, while Mr Carey found that straight leg raising was over 90 per cent with no discomfort on 13 April 2011, Mr Timms found that the plaintiff had decreased straight leg raising, albeit it with good strength and some abnormal sensation in the right leg (PCB p. 46).
82 In conclusion, I accept that that the plaintiff’s physical injury, being the aggravation of degenerative changes in his lumbar spine including a disc bulge at L4-5, have produced his pain and disabling symptoms rather than any psychological response. In doing so, I have accepted the opinions of the plaintiff’s medical experts rather than those of the defendants experts.
Pain and suffering consequences
83 It is now necessary to determine if the consequences of the plaintiff’s organic injury to his lumbar spine are such that they can satisfy the definition of being a “serious injury” with respect to pain and suffering.
84 While after the incident on 23 January 2009 the plaintiff initially returned to work on his normal duties he only lasted just under a month (with the assistance of pain killing medication) before he stopped work due to his back pain. When he again returned to work but this time on light duties he managed for six weeks before the pain became unbearable.
85 In his first affidavit, the plaintiff referred to suffering the following problems due to his lumbar spine injury:
·it caused him trouble sleeping and he often woke up due to pain;
·he experienced very significant problems with self-care and personal hygiene;
·he experienced increased pain from the physical activities of standing or sitting for prolonged periods, reclining for too long in one position, stooping, squatting, getting up after kneeling, reaching, bending, as well as repeated or prolonged twisting and leaning;
·he experienced increased pain with repeated or prolonged activities such as carrying, lifting, pushing, pulling and climbing;
·he tended to avoid travelling long distances due to increased pain in his back; and
·his ability to participate in individual or group activities, sports and hobbies had been adversely affected.
86 With respect to his recreational, social and sporting life, the plaintiff deposed that his ability to:
· perform activities inside his home continued to be very significantly affected by his work injury and he remained dependant on others for most meal preparation, cleaning and laundry.
· to play and engage actively with his son had been affected.
· to enjoy social participation by going out to see friends, play sport (badminton, pool and billards) to receive and entertain guests has been affected.
87 The plaintiff continues to consult his GP every fortnight and takes Targin and Baclofen. In his affidavit, he stated that:
“The loss of my ability to work and the very significant diminishment of my physical capabilities and endurance have struck at the core of my identity and sense of self-worth. I feels like a liability to those around me and have lost many friends and the social contact I used to have as a working family man with a normal working, social and family life” (PCB p. 17).
88 The plaintiff’s evidence regarding the consequences of his back injury is supported by affidavits from his friend, Danh Huu Dang, and his step-mother, Quoi Tran.
89 In his affidavit, Mr Dang deposed that he had known the plaintiff for more than 20 years and that he sees him on average once a week. He described the plaintiff, prior to the work injury, as being an active and capable man. He recalled that he used to enjoy playing badminton and billiards. In addition, he enjoyed being socially active and going out with friends as well as going fishing.
90 In the final paragraph of his affidavit, he summed up the changes in the plaintiff as follows:
“Phon is no longer as active as he used to be, and he seems like a completely different person. As a result of his work injury, I believe Phon has lost contact with many of his friends and much enjoyment in his life. He is no longer an active man and is not interested in socialising with friends which I believe is as a result of the pain he suffers from his work injury”.
91 In her affidavit, the plaintiff’s step-mother also provided support for him having been a fit and active man prior to his work injury and as “seeming to be a completely different person after the work injury”.
92 As the injury is an aggravation of pre-existing degenerative changes to the plaintiff’s lumbar spine, it is the aggravation and it’s consequences which must be considered. I accept that prior to the incident on 23 January 2009, the plaintiff’s degenerative condition was asymptomatic. However, after the incident, his condition changed and the aggravation brought about pain and suffering which had not been previously experienced by him.
93 As a consequence of the aggravation, his recreational and social life is diminished and he can no longer perform his pre-injury job. I find that the pain and suffering consequences of the plaintiff’s impairment, being loss of function of his lumbar spine, when judged in comparison with other cases in the range of possible impairments or losses of body function, can be fairly described as more than significant or marked and as being at least very considerable. The plaintiff’s symptoms have not improved over time. I accept that the impairment is permanent and that it is likely to last for the foreseeable future (see in particular Mr Kossmann and Dr Middleton).
Work capacity
94 The plaintiff must establish a permanent loss of earning capacity of 40 per cent or more. The test is a comparison between the income that the worker was earning or was capable of earning during that part of the period or within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.
95 There is no loss of earning capacity if the plaintiff has or would have after retraining, rehabilitation etc. a capacity for any employment which if exercised would result in him earning more than 60 per cent of his gross income had the injury not occurred (s. 134AB38(g)).
96 The figure which most fairly represents the plaintiff’s before injury earnings is $35,000. If the plaintiff is found to have retained a capacity for full-time restricted duties in the jobs suggested by the defendant as being suitable, he would earn more than 60 per cent of his before injury gross income.
Defendant’s case
97 While the defendant accepts that the plaintiff is no longer fit for his pre-injury duties, it was submitted that their medical witnesses support the proposition that the plaintiff suffered from a mild work-related aggravation of degenerative changes in the lumbar spine without any radicular or neurological signs and that he is fit for fulltime restricted duties (Mr Shannon at DCB p.17, Mr O’Brien at DCB p.40, Mr Dooley at DCB pp.45–7, Mr Baines at DCB p.51and Mr Carey at DCB p.58).
98 The defendant also relied on the opinions of these medical experts as supporting the case that the plaintiff’s presentation was marked by the development of a functional component and/or chronic pain syndrome which had resulted in symptom enhancement or embellishment inconsistent with the extent of the physical injury (Mr Shannon DCB at p. 26, Mr Dooley at DCB p. 45, Mr Baines at DCB p. 50 and Mr Carey at DCB p. 58).
99 In his closing address, counsel for the defendant said this is a case where the worker’s capacity was largely determined by psychological, not organic, factors; a case in which he has retained a capacity for employment which has been demonstrated in terms of the range of jobs available to him; and at the very least he has a capacity for part-time work.
100 The defendant submitted that as part of a return to work plan in 2009 they had offered the plaintiff a wide range of suitable duties which involved little or no physical exertion and they could be done sitting or standing with short rest breaks on a regular basis. The plaintiff, however, had made no attempt at any of the return to work plans (see Offers of Suitable employment PCB pp. 112-117).
101 The defendant submitted that the plaintiff does not have a permanent loss of earning capacity of 40 per cent or more when measured in accordance with s.134AB(38)(e)(ii) of the Act. This was because he had a retained capacity for full-time restricted duties in a wide range of jobs, such as gaming worker ($1023/week), cashier ($689/week), call-centre operator ($875/week), car park attendant ($1000/week), retail sales assistant ($740/week), ticket sales ($900/week), security guard ($960/week) and cafe worker ($720/week).
102 With respect to the suitability of these various jobs, the defendant relied on the IPR Rehabilitation NES Vocational Assessment Reports and Job Seeker Plans reports contained in the plaintiff’s court book and the Recovre NES Refresher Assessment Report and Plan, dated 14 December 2010, as well as other various work capacity reports contained in the defendant’s court book.
Plaintiff’s case
103 The plaintiff’s case is that the medical opinion is unanimous that he cannot return to his pre-injury work. With respect to alternative work, it was submitted there was “simply no job which existed which allowed for his restrictions”. He has to change position every 10 or 15 minutes. He has a sitting tolerance of 9 minutes and 3 – 4 times a day he has to lie down for half an hour because of his back pain.
104 When he was cross-examined about his failure to attempt the return to work plan in 2009, the plaintiff agreed that the defendant had continued to offer him light duties from time to time during 2009. His explanation for not attempting these duties was that his doctor had certified him unfit for work so he did not reply to the offers (transcript p.7). He expressed his own view as to his ability to do the light duties as follows:
“I was thinking that I was not able to because I know if I stand at one spot of sitting at one spot my pain start getting aggravated very much throughout my back”.
105 With respect to the periods in 2009 and 2010, where the plaintiff had been certified as fit for light duties by his GP with no repetitive bending of his back or lifting more than 5 kilograms, or standing or sitting or walking in combination his evidence was that he was at the time prepared to do such work if he could find it (transcript p. 9).
106 In so far as the plaintiff’s symptoms were concerned, his evidence was that the symptoms in 2009-2010 were pretty much the same symptoms as now. He had pain in his low back, sometimes in his left hip as far as his knees (transcript pp. 9-11). He is currently taking Cymbalta prescribed by his psychiatrist, Targin for pain and Baclofen for muscle stiffness (transcript p. 11).
107 While the plaintiff agreed that, based on his abilities and skills, there were a number of jobs he could do and that he had applied for many jobs in retail through the local paper and online, his evidence was that presently he was not fit for working in any of the of the various jobs referred to above because of the current constant level of pain and restrictions referred to in paragraph 83 herein (transcript p. 23).
108 The plaintiff relied, in particular, on the opinion of Professor Myers, that the plaintiff had suffered an aggravation of degenerative charges of the lumbar spine which contributed to his appreciation of pain and incapacity for unrestricted or pre-injury work. In addition, his opinion that the plaintiff could not perform the vocations identified by the consultant examiners Recovre (PCB p.89).
Finding
109 I have already found that the plaintiff’s pain and disability is due substantially to his organic injury. I accept the plaintiffs case as set out above that due to the pain and the restrictions placed on him by his back injury with respect to sitting, standing and the need to lie down, the reality is that for the foreseeable future there is no job for which he has a true capacity.
110 On the basis of the rehabilitation reports, with appropriate retraining the plaintiff would appear to be suitable a candidate for a number of jobs. However, in his affidavit of 10 May 2012, the plaintiff swore that he would not be suitable for a number of these jobs (e.g. ticket salesman, security guard, sales assistant) as they were outside his physical capabilities. In particular, this was because of the physical work required in these jobs involving spending prolonged time either sitting, standing or walking. In addition the difficulty of working full-time and being reliably attentive.
111 The affidavit was consistent with the plaintiff’s evidence to this court referred to herein that “due to his pain and resulting level of disability, he could not do any of the suggested jobs”. (see paragraph 108) The plaintiff appeared to me to be a genuine and credible witness who answered questions appropriately and made concessions. There was no video surveillance produced which contradicted his claimed limitations. Mr Timms has certified him as unfit for any work and Professor Myers was of the same opinion.
112 There is support for their opinion from Dr Kaplan, who is of the opinion that the plaintiff suffered an adjustment disorder as a consequence of his physical injury that will continue as long as he suffered physical pain. Whilst there were some psychiatric issues, the plaintiff’s capacity for work would be determined by his physical condition.
113 In addition, there is support for this finding from Mr Carey to the extent that he was of the opinion that, while the plaintiff was fit for appropriate alternative work or even modified duties on purely organic/medical grounds, he was not fit at present due to his minimal tolerance for sitting, standing, walking and his requirement to lie down frequently and for opiate medication.
114 Dr Middleton’s view was also supportive in that he was of the opinion that the jobs of tester and tagger, security light retail assistant, café worker, gaming attendant and truck driver were unsuitable for the plaintiff due to their physical requirements (PCB pp. 97-98). Mr Kossmann was also pessimistic about the plaintiff’s chances of finding work.
115 In accepting Dr Middleton’s opinion that the plaintiff could not do these jobs rather than Mr Shannon’s opinion that he could, I note that Mr Middleton is a Occupational Health and Rehabilitation Consultant while Mr Shannon is an Orthopaedic Surgeon. In Giankos v SPC Ardmona Ltd [2011] VSCA 121 the Full Court stated that:
116 “Expert opinion evidence must relate to matters which are wholly or substantially within the experts field of expertise. It follows that medical opinion about the suitability of particular employment for an injured worker should focus on the physical restrictions which a particular impairment imposes, rather than on whether the injured person is able to do a particular job. There is a danger that medico-legal experts will stray beyond their field of expertise, and give unqualified opinions about jobs which can or cannot be done by the worker. Expert where a medical practitioner has a specialist occupational health and safety qualifications or experience, a medical opinion as to the work which an injured worker can perform may fall out side the doctors area of expertise.
117 I am satisfied that the plaintiff has no work capacity and that he established that the permanent impairment of his lumbar spine has resulted in a loss of earning capacity of 40% or more. I grant leave to him to commence proceedings to recover damages for loss of earning capacity.
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