Raczek v Innovative Retail Pty Ltd
[2018] VCC 1875
•1 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-05313
| DARREN JOHN RACZEK | Plaintiff |
| v | |
| INNOVATIVE RETAIL PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18, 19 September 2018 | |
DATE OF JUDGMENT: | 1 October 2018 | |
CASE MAY BE CITED AS: | Raczek v Innovative Retail Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1875 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – Pain and Suffering – Economic Loss – Aggravation to pre-existing degenerative condition in lumbar spine at L3-4 – Opiate addiction – Where plaintiff returned to work following serious injury and was dismissed on separate grounds
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Petkovskiv Galletti [1994] 1 VR 436;
Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted in respect of economic loss and pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr O Lesage | Slater and Gordon |
| For the Defendant | Mr P Elliott QC with Ms S Gold | Hall & Wilcox |
HIS HONOUR:
1 This is an application pursuant to s134AB(16) of the Accident Compensation Act 1985 (the Act) by the plaintiff, Darren John Raczek, for leave to commence proceedings for damages in respect of the economic loss consequences and pain and suffering consequences of an injury suffered by him whilst employed as a territory manager by the defendant, Innovative Retail Pty Ltd. The injury relied upon by the plaintiff is the aggravation of a degenerative condition, or a new injury to, his lumbar spine at the level of L3/L4. The body function relied upon by the plaintiff is his spine.
2 The defendant owns a number of amusement equipment and children’s rides and carousels situated in shopping centres and retail strips. The plaintiff commenced employment with the defendant on 14 July 2003 and his duties involved the placement, collection and servicing of the amusement equipment and rides. He was also required to collect the takings from the equipment and liaise with customers in the shopping centres and retail strips. He was required to travel to country Victoria and interstate every second week and an open tray truck fitted with a hydraulic rear hoist was provided to him to perform his duties.
3 On or about 14 August 2014, while the plaintiff was performing his duties in Mount Gambier, South Australia, he slipped and fell from the rear of the truck onto the ground below.[1] He hit the ground heavily, landing on his buttocks and immediately lost feeling in both legs for a period of approximately 15 minutes.[2] He reported the incident to his supervisor by telephone and sent an email to the supervisor that evening confirming his report.
[1]Plaintiff’s Court Book (PCB) 21
[2]PCB 21
4 On the following Monday, he recorded the incident in the “Injury Register” book located at his workplace.[3] In severe pain, the plaintiff continued to work and on his return to his home in Melbourne, his treating Doctor, Jack Deady, saw him on a house visit and following this, at his surgery on 19 August 2014.[4] Dr Deady recorded that the pain the plaintiff had previously experienced had become worse.[5] The plaintiff states he received a WorkCover certificate of incapacity from the Dr Deady but he did not make a WorkCover claim, as he feared that he would lose his job.[6]
[3]PCB 21
[4]Defendant’s Court Book (DCB) 183
[5]DCB 183
[6]PCB 21
5 He continued working as a territory manager performing his employment duties until 18 February 2015 when he resigned following the discovery by the defendant that he had stolen approximately $1500 in takings from amusements located in Belmont, Geelong. The theft was discovered by the defendant prior to the plaintiff’s resignation and in an email dated 15 February 2015, the plaintiff sought to remain in his employment, apologising for his dishonesty.[7]
[7]DCB 404
6 Following his resignation, which was required of him by the defendant, the plaintiff lodged a worker’s injury claim form on 20 February 2015 in respect of the injury he had suffered in Mount Gambier on 14 August 2014.[8] The claim was accepted by the defendant for the payment of certain medical expenses.[9]
[8]PCB 11. The claim form states 13 August 2014 and the defendant accepted nothing turned on this.
[9]Transcript (T) 23 – 24
7 The plaintiff was born on 5 July 1965 and is now aged 53. He completed Year 10 at Northcote Technical College, leaving at the age of 16. He has no other educational qualifications or formal employment training. In 1982, aged 17, he commenced employment at JW Porter Pty Ltd, a timber yard, performing manual labouring duties.
8 In support of the application the plaintiff tendered two affidavits sworn by him on 27 March 2018 and 11 May 2018 and an affidavit of his wife Susan Anne Raczek sworn on 11 May 2018. He attended the hearing of the application, gave evidence and was cross examined. No other oral evidence was given and otherwise the parties relied on the medical and other evidentiary material tendered by them.
9 On 6 September 1983, the plaintiff injured his lumbar spine at L4/L5 and L5/S1, lifting a 50 kilogram bundle of timber. Following this, the plaintiff continued to work in manual occupations experiencing significant back pain.
10 A myelogram performed on 18 September 1985 at Box Hill Hospital revealed a disc protrusion at L5/S1 and on 10 January 1986 a decompression procedure was performed at the Box Hill Hospital.[10] The plaintiff continued to experience severe back pain following the surgery and at this time became dependent on pain relieving medication.[11]
[10]DCB 94
[11]DCB 94
11 In June 1986 the plaintiff was injured in a transport accident which aggravated his lumbar spine injury and associated pain. A regraft of the fusion performed on 10 January 1986 was carried out by Mr Roy Carey in 1987.[12] The plaintiff returned to the workforce performing warehouse duties at Hills Industries in 1989 and thereafter with other employers. In 1997, while employed by Dick Smith Industries, the plaintiff fell from a ladder again injuring his lumbar spine at L4/5. On 20 May 1999, Mr Carey performed a nerve root block procedure at L4/5[13] and on 19 August 1999, Mr Carey performed a spinal fusion procedure at L4/5.[14]
[12]DCB 47
[13]PCB 82
[14]PCB 83
12 On 6 December 2000, steel plates causing irritation to the plaintiff located at L5/S1 were surgically removed by Mr Carey.[15]
[15]PCB 85
13 At the time that the plaintiff commenced employment with the defendant on 14 July 2003, he continued to experience severe back pain and was dependent on large doses of narcotic medication to manage his pain and to enable him to work. During the course of his evidence, the plaintiff agreed that he had been in chronic pain for 30 years using large quantities of opiates during that period.[16]
[16]T 53
14 In evidence the plaintiff admitted that he appeared at the Heidelberg Magistrates Court on 5 December 1991 in relation to a series of charges concerning forging prescriptions, making a false representation to obtain medication and using a drug of dependence. He was placed on a good behaviour bond.[17] He further admitted appearing at the Ringwood Magistrates’ Court on 30 June 2000 in relation to a series of similar charges and was released on an undertaking with conviction.[18] The evidence discloses and the plaintiff does not dispute that he has used very substantial quantities of opiates; namely, OxyContin, OxyNorm, Pethidine, Methadone and Lyrica over a period of approximately 30 years.
[17]DCB 343 and following
[18]DCB 235
15 The plaintiff continued to perform his duties as required by the defendant, managing his severe pain with extremely high dosages of opiate medication. On 10 April 2007, an x‑ray of the plaintiff’s lumbar spine and CT scan of the lumbar spine were carried out revealing the following:
“The extensive post-surgical changes are noted. There is bony narrowing of the right L4 nerve root exit foramen associated with the previous surgery and consequent bony remodelling and localised fusion of the posterior aspect of L4 with L5 on the right. There are facet joint degenerative changes at the L3/4 level. No other abnormality is seen.”[19]
[19]PCB 31
16 On 26 April 2007, an MRI scan was carried out of the plaintiff’s lumbar spine revealing the following:
“Previous L4 to S1 laminectomy and fusion reversal of lower lumbar lordosis and minor (grade 1) L4/5 spondylolisthesis. Multilevel degenerative disc disease and facet joint arthropathy. A moderate left foraminal stenosis is seen at L3/4 secondary to disc bulge conjunction with facet joint hypertrophy. Mild indentation of the theca is noted at this level. A moderate right foraminal stenosis is seen at L4/5 secondary to end plate osteophytes. The central canal remains adequate in dimension at L4/5 and L5/S1 following previous laminectomy.”[20]
[20]PCB 33
17 These findings were reported to the plaintiff’s then general practitioner Dr Sharma, who in turn referred the plaintiff to Dr John Merory, a neurologist. Dr Merory examined the plaintiff on 10 April 2007 at which time the plaintiff described severe lower back pain and leg pain.[21]
[21]PCB 86
18 On 5 July 2007, a joint abscess located at L3/4 of the plaintiff’s lumbar spine was drained in a surgical procedure and he was treated with antibiotics. The abscess had developed following a tooth infection.[22] The plaintiff continued to suffer from severe back pain and was treated with local anaesthetic injections to the L3 roots bilaterally.[23]
[22]DCB 48
[23]PCB 91
19 On 18 December 2007, Dr Merory reported to Dr Deady, the plaintiff’s new general practitioner, the following:
“Basically there is an enormous pain problem with a very complex lumbar situation which started 24 years ago. There [has] been rupture of the L5/S1 disc and L4/5 disc both followed by operation. Recently he had a left L3/4 facet joint infection, probably seeded from dental root canal pathology. The last intervention was bilateral epidural steroid injection at L3/4 providing a modest reduction in pain. By now you will have a list of his medications. He feels that his greatest problem now is breakthrough pain which may require management in its own right.”[24]
[24]PCB 93
20 The plaintiff continued to use very large dosages of narcotic medication and Dr Merory reported to Dr Deady:
“If his present medication regime helps maintain him in full employment with a good family life as he has at present one could mount an argument not to change it. However he is on high doses of a narcotic, and it would be preferable to find other ways of controlling his pain.”[25]
[25]PCB 95
21 The plaintiff continued to be reviewed by Dr Merory who, on 21 April 2011, reported to Dr Deady:
“Thank you for referring this patient again. He is now 45 years old. He feels that the back pain and the weakness in his legs are both deteriorating. The pain interrupts his sleep. He realises no further surgery is indicated. He is working long days, often six days per week, up to 12 hours per day. He wants to continue work.”[26]
[26]PCB 98
22 Dr Merory further stated:
“I would resist an increase in his morphine dose which is already quite high. I shall inquire about intrathecal morphine which is used quite rarely.”[27]
[27]PCB 98
23 The plaintiff continued to carry out his duties with the defendant requiring large amounts of opiate pain relieving medication to do so. Dr Merory reported to the Department of Health, Drugs and Poisons Registration Unit on 9 July 2013 as follows:
“This man is on Oxycodone long-acting 160mg bd and 80mg in afternoon and oxycodone tablets 20mg QID for low back and leg pain resulting from lumbar spine disease. He has had 4 operations on his lumbar spine including fusions and a Staph Aureus infection in the spinal canal requiring drainage and IV/oral antibiotics for 12 months. He is left with facet joint arthritis, spinal canal stenosis and disc protrusion/bulge at L23 and L34. He has suffered chronic pain since the 1980s. Despite his pain and its treatment he has managed to continue to work and function at home with his family. I recommend he continues his present pain management.” [28]
[28]PCB 102
24 This report to the Department of Health accurately summarises the plaintiff’s medical condition prior to the workplace accident on 14 August 2014.
25 In November 2013 the plaintiff’s general practitioner, Dr Deady, left the clinic that he practised from in Epping, and the plaintiff consulted Dr Adeel Tariq at that practice, who prescribed high doses of OxyContin, OxyNorm, Lyrica, and Cymbalta to manage his pain.[29] In February 2014 Dr Deady recommenced practise at the Manningham General Practice, and the plaintiff then consulted him at that practice. However, the plaintiff also continued to consult Dr Tariq, who continued to prescribe him painkilling medication. Between February 2014 and 13 June 2015 the plaintiff regularly obtained prescriptions for painkilling medication from both Dr Tariq and Dr Deady, and admitted in his evidence that he had lied to the doctors for the purpose of obtaining the medication.[30]
[29]PCB 47
[30]T 115–116
26 The plaintiff was cross-examined extensively about his use of prescription medication and the fact that he had misled his treating doctors to obtain it. As I observed during the hearing, the plaintiff impressed me as an articulate and essentially honest witness. Whilst it is clear that he has a criminal history for unlawfully obtaining prescription medication and associated offences, and it is also clear that he misled Dr Tariq and Dr Deady for that purpose, I accept that this conduct was caused by his increasing need for medication to control his severe pain.
27 I accept that the plaintiff is suffering from opiate addiction, and the evidence before me clearly establishes that fact. However, that addiction is a result of the spinal injuries he sustained prior to the fall which is the subject of this application, and not from some other unrelated cause.
28 The plaintiff continued to perform his work duties following the fall on 14 August 2014, and the defendant produced in evidence CCTV footage of him at work on 29 January 2015 and 2 February 2015. The footage depicts the plaintiff performing a range of manual tasks without any apparent difficulty. I accept that the plaintiff was only able to do so by reason of the large doses of pain relieving medication that he was taking, and it is clear that such doses were in excess of the prescription he had been given.[31] By reason of the fact that the plaintiff was seeing two doctors for the purpose of obtaining prescription medication, in all probability he was taking substantially in excess of what he had been prescribed.
[31]T 145–6
29 Following the termination of his employment the plaintiff has not returned to work, and whilst I accept that it is incumbent upon me to assess his work capacity at the time of the hearing, it is nevertheless relevant that he did not cease work with the defendant in February 2015 by reason of the injury relied upon in support of this application. The evidence before me discloses that the plaintiff wished to continue working, despite the severe pain and discomfort he was experiencing.
30 After the termination of his employment Dr Deady referred the plaintiff to Dr Merory, who ordered a new MRI of his lumbar spine. On 10 March 2015 an MRI scan revealed:
“Compared with the previous MRI lumbar spine dated 13/9/2012 the appearances at L3/4 have slightly worsened. Otherwise, no appreciable change. No bone bruising or epidural haematoma to suggest acute trauma.”[32]
[32]PCB 45
31 Following the MRI scan, Dr Merory reviewed the plaintiff and reported to Dr Deady on 30 April 2015 the following:
“I reviewed Darren today together with his new MRI which shows some deterioration at the L3/4 level with severe spinal canal stenosis and bilateral L4 nerve root compromise, worse on the left. This is not surprising considering his previous surgery at L4/5 and the trauma in August 2014 when he fell off the truck.”[33]
[33]PCB 49
32 A further examination by Dr Merory on 17 December 2015 revealed:
“On examination straight leg raising 45 degree bilaterally, preserved musculature and power, preserved knee and right ankle jerks, but decreased to absent left ankle jerk, pinprick reduced in the left leg excluding knee or thigh, plantar responses flexor. He can walk but hobbles a little. He has difficulty getting on and off the couch because of pain.”[34]
[34]PCB 106
33 On 3 February 2016 the plaintiff was examined by Mr David Brownbill, consultant neurosurgeon. Mr Brownbill concluded:
“Noting that the back pain increased following the described fall with that increase being maintained and the requirement for much increase of medication and the demonstration of L3‑4 degenerative changes radiologically, I consider that on probability this man in the described fall sustained as a result of axial forces to the lumbar spine aggravation of those degenerative changes.
With the continuation of the increased pain, radiating leg pain and intermittent giving way leg weakness following the fall, I consider the aggravation of the L3‑4 degenerative changes continues.”[35]
[35]PCB 111
34 Mr Brownbill further concluded:
“I consider on the information provided that it is more probable than not that aggravation of the L3‑4 degenerative changes with resulting increased pain and tendency for his legs to give way have resulted from the described fall onto his buttocks on 14 August 2014.
I consider this man cannot return to his pre injury duties as a result of those injuries sustained.”[36]
[36]PCB 112
35 The plaintiff was also examined by Mr Kenneth Myers, consultant general surgeon, on 2 March 2016, who concluded that there is no possibility of the plaintiff returning to any form of employment in the foreseeable future. He further concluded that the plaintiff:
“…would have no more than chronic low back pain as he has had for many years if it had not been for the accident in 2014.”[37]
[37]PCB 119
36 The plaintiff was also examined by Dr Robyn Horsley, occupational physician, on 14 November 2017. Dr Horsley took an extensive history from the plaintiff, and had regard to the MRI of the plaintiff’s lumbar spine and medical reports of Dr Merory, Mr de la Harpe, Mr Flannagan, Mr Brownbill, and Mr Myers. Her clinical examination revealed significant pain and restriction, and she concluded:
“Mr Raczek, although he is only 52 years of age, presents with no current capacity for work. On the basis of his current presentation and significant disadvantage and disability, I believe that this is likely to continue into the foreseeable future.”[38]
[38]PCB 128
37 The plaintiff was examined by Professor Mark Cook, neurologist, on 21 April 2018, who concluded:
“There was no question he had significant problems and was limited to some extent, requiring regular narcotic analgesia since his previous back surgeries, but nevertheless he was engaged in very heavy work consistently over a very long period after that, and seems to have been able to engage in this without significant restriction. I think it’s quite clear that the injury is a significant component of his current restrictions, which affect all aspects of his life, both in terms of work, domestic and recreational activities.”[39]
[39]PCB 134
38 Further:
“I do not believe he is able to work on a part-time or full-time basis in his previous occupation. I consider this incapacity to be permanent.”[40]
[40]PCB 134
39 Following an examination of the plaintiff on 16 October 2015, Mr David de la Harpe, orthopaedic surgeon, suggested that the treatment in the form of surgery would be a laminectomy at L3. This procedure has not been conducted, and the plaintiff gave evidence that he was concerned about having further surgery and was unable to afford it. It was not submitted on behalf of the defendant that in light of this evidence I could not be satisfied that the injury relied upon by the plaintiff is permanent, and, in any event, the opinion expressed by Mr de la Harpe is as follows:
“Any further treatment in the form of surgery would be that of an L3 laminectomy which would probably not do anything for his chronic lower back pain but may aid some return of function to his legs however I think it would be most unlikely he would be fit to return to any gainful employment even with successful surgery.”[41]
[41]PCB 149
40 Based on the evidence before me, I am satisfied that the plaintiff suffered aggravation to degenerative changes at the L3‑4 level of his lumbar spine as a result of falling from his truck onto the ground whilst carrying out his work duties on 14 August 2014. Whilst the MRI scan conducted on 10 March 2015 revealed slightly worsened pathology I accept that specific changes on radiological examination are not able to precisely predict clinical symptoms as stated by Mr. Brownbill.[42]
[42]PCB 141
41 Mr. Brownbill also observed that the type of fall suffered by the plaintiff is “notorious for damage that can occur by axial forces to structures throughout the spine including the lumbar spine”.[43]
[43]PCB 141
42 Mr. Brownbill’s opinions are shared by Dr Hooper, Orthopaedic Surgeon who examined the plaintiff on 1 May 2018. Dr Hooper concludes that as a consequence of the plaintiff’s injury in August 2014 his back condition has deteriorated markedly and he has no current work capacity.[44]
[44]PCB 70
43 The evidence also establishes that the plaintiff suffered a very significant increase in his pain levels following the injury he suffered on 14 August 2014.[45]
[45]PCB 21; PCB 29; PCB 64
44 I am further satisfied that the injury may properly be described as permanent.
45 It was submitted on behalf of the defendant and I accept that it is incumbent upon me to conclude that the injury I have identified is itself a serious injury for the purposes of the Act. In making the assessment I am not permitted to have regard to the consequences of the plaintiff’s pre-existing injury.[46]
[46]See : Petkovski v Galletti [1994] 1 VR 436 at 444
46 The defendant further submitted that the plaintiff had a retained work capacity, relying on the opinion of Dr Dominic Yong, specialist occupational physician, who examined the plaintiff on 17 April 2018. Dr Yong concluded that the plaintiff had a current work capacity with a number of restrictions, including avoiding repeated bending, twisting, or lifting more than 5 kilograms. Dr Yong suggested the plaintiff would commence work with an initial reduction in working hours, but did not detail how many hours the plaintiff would then be able to perform.[47]
[47]DCB 58
47 The defendant also relied on a report of Mr Graeme Brazenor, consultant neurosurgeon, who examined the plaintiff on 7 August 2018. Mr Brazenor requested that further MRI and CT scanning take place of the plaintiff’s lumbar spine before concluding his opinion. He observed that it was:
“… odd that this man firstly claims not to have improved at all in more than three years of rest and convalescence. Such is highly abnormal outside the Workers’ Compensation sphere.”[48]
[48]DCB 77
48 Mr Brazenor did not receive the further material that he requested, and on 1 September 2018 expressed the following opinion:
“On the balance of probabilities Mr Raczek now has, at most, some mild low back pain and sciatic irritation if he slumps in soft chairs or indulges in ill-advised recurrent bending at the waist. On the balance of probabilities he is fit to return to work full-time and to work full-time to normal retiring age, in any occupation which does not involve recurrent bending at the waist, the repeated accessing of levels less than 600 mm above the surface on which Mr Raczek stands, or vigorous pushing or pulling movements as in the manoeuvring of heavily laden trolleys. These restrictions are due to degenerative disease present in Mr Raczek’s spine in current degree prior to 13 August 2014. There is no restriction due to the incident of 13 August 2014.”[49]
[49] DCB 418
49 The plaintiff was also examined on behalf of the defendant by Mr. Michael Dooley Orthopaedic Surgeon on 16 December 2015 who concluded –
“Currently Mr Raczek would have a physical capacity in relation to performing some light physical work and clerical duties. Overall however, he would struggle in this regard.”[50]
[50]DCB 37
50 I am satisfied on the basis of the preponderance of the medical evidence before me that the plaintiff currently has no work capacity. The opinion of Mr Brazenor appears to be based on incomplete information and the opinions of Dr Yong and Mr Dooley are guarded in relation to the plaintiff’s work capacity.
51 It is apparent from the balance of the evidence that I have referred to that the plaintiff suffers from continuing severe lower back and leg pain, and significant restriction in his movement. The plaintiff has no formal or vocational qualifications and has only worked in manual duties. In my opinion, the plaintiff’s desire to continue working in 2015 following his fall on 14 August 2014 was the product of a determination to put up with his severe pain and to carry on as best as he could.[51]
[51]See : Dwyer v Calco Timbers Pty Ltd ( No 2 ) [2008] VSCA 260 per Nettle JA
52 I am further satisfied that the incapacity was caused by the aggravation to the degenerative condition in his lumbar spine at L3‑4 following the fall from his truck on 14 August 2014. The evidence clearly establishes that the plaintiff’s degenerative condition at L3/L4 of his spine was significantly worsened by the injury he suffered on 14 August 2014.[52] Accordingly, I am satisfied that, for the purposes of the Act, the injury relied upon by the plaintiff is a serious injury.
[52]PCB 70; PCB 58; PCB 48;
53 Having determined that the plaintiff has no current work capacity, it is not incumbent upon me to consider whether the pain and suffering consequences of the injury amount to a serious injury. It follows that the plaintiff is entitled to an order in the form sought in the application, namely leave to commence a proceeding claiming damages for the economic loss consequences and pain and suffering consequences of the injury suffered by him which is the subject of the application.
54 I publish my reasons.
55 I will hear the parties as to the appropriate form of orders in this case.
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