Ramouzi v Cameron Morley Holdings Pty Ltd
[2012] VCC 1287
•6 July 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03872
| MOJTABA RAMOUZI | Plaintiff |
| v | |
| CAMERON MORLEY HOLDINGS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 July 2012 | |
DATE OF JUDGMENT: | 6 July 2012 | |
CASE MAY BE CITED AS: | Ramouzi v Cameron Morley Holdings Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1287 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the spine – pain and suffering damages only
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Maurice Blackburn Pty Ltd |
| For the Defendant | Ms R L Kaye | Lander & Rogers |
HIS HONOUR:
1 The plaintiff suffered injury to his lower spine in the course of his employment with the defendant on or about 21 November 2007. After some initial respite, he claims the lower back pain has continued through to the present time, requiring treatment at the hands of a number of specialists, the prescription of pain-relieving and anti-inflammatory medication, and restriction in a range of social, recreational, and employment activities.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of employment on 21 November 2007. The body function said to be impaired is the spine. The application is thus brought under subsection (a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, medical and radiological reports and clinical notes were tendered into evidence. I have read all the tendered material.
4 I shall not refer to all of this material in the course of this judgment but rather to those reports and opinions which appear to me to be most relevant in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff but those parts of his evidence which I have relied upon in coming to the conclusions referred to later in this judgment.
5 The statutory scheme set forth in the Act which prescribes and regulates the applications of this nature is well known and it is unnecessary for me to revisit the various sections.
6 The plaintiff was born in Iran in 1977 and is now thirty-four years of age. His secondary schooling was completed in Iran and he undertook further studies as a medical technician, and in animal husbandry. He came to Australia in 2004, worked in various factory jobs and returned to Iran in late 2005 until 2006. He commenced work for the defendant, a labour hire company, in July 2006.
7 According to his affidavit, he said he enjoyed a range of activities, including soccer, tennis, table tennis and chess, although in the course of cross-examination he acknowledged his involvement in these activities before injury was modest and mostly undertaken in Iran.
8 He was otherwise healthy and in particular, had no prior history of low-back complaints.
9 On 21 November 2007, while working in a car factory, he and another worker lifted a large and heavy box when he felt what he described as a funny sensation in his lower back. He felt pain in the area, which, over a break, worsened and his lower back became stiff and sore.
10 The next day, he went to a local general practitioner, Dr Salimi. He was referred for physiotherapy and prescribed anti-inflammatory medication. His pain improved such, that by December 2007, he was relatively pain-free. He returned to work in January 2008, initially on light duties, but returned to heavier duties and suffered an exacerbation of his lower back pain when bending to remove a car seat.
11 He returned to Dr Salimi in February 2008. A CT scan of his spine taken on 21 February 2008 showed a central disc bulge at L4-5, indenting the thecal sac. An MRI scan of 12 August 2008 showed a similar finding.
12 More recently, a CT scan taken in April of this year was said to be essentially normal without reference to any problem at the L4-5 level. However, that CT scan has not been the subject of any specialist opinion and ought not, in my assessment, alter the opinions, set out in the various medical reports, of the medical practitioners who have examined the plaintiff.
13 The plaintiff was referred to a neurosurgeon, Mr Gavin Davis, who saw him on one occasion, on 8 April 2008, and who diagnosed mechanical low-back pain without neural symptoms. He described the radiology as demonstrating a very mild central disc bulge at L4-5. He said future treatment required posture management and a rehabilitation program.
14 He was referred to Dr Muir, a rehabilitation and pain management specialist, in October 2008. Dr Muir diagnosed a soft-tissue strain of his low back with possible facet joint arthritis. He referred the plaintiff to the Dorset Rehabilitation Centre, where he undertook a rehabilitation program over a period of about six months.
15 According to the notes of that rehabilitation centre, the plaintiff reported a worsening of symptoms and function in his lower spine. It was said that he would benefit from physiotherapy and exercise physiology to increase his physical tolerances for return to work. It was said that he was focused on returning to pre-injury levels of activity but appreciated that that was not possible. He was anxious about his psychological state.
16 A Medical Panel assessment of May 2009 found the plaintiff unfit for his pre-injury duties as a result of an L4-5 disc injury.
17 The plaintiff undertook an exercise program at the Broadmeadows Leisure Centre until July 2011 when funding by the WorkCover Authority for that program was withdrawn.
18 The plaintiff has remained unemployed since 2008. According to his affidavit, he is looking for employment in the hospitality or gaming industry. There is little doubt that his work prospects are limited to jobs which do not require heavier lifting and repetitive bending. This is said to pose particular problems for him because of his migrant background and his limited vocational education and experience. According to the most recent WorkCover certificate issued by his general practitioner, he was certified as fit for work where there is no lifting of greater than five kilograms and to avoid repetitive lifting and bending.
19 At the present time, he complains of constant low-back pain, exacerbated from time to time depending upon the activities in which he is engaged. He has a limited ability to sit for more than thirty minutes. He claims referred pain to his buttocks, although there is no evidence of neural involvement according to the opinion of the specialists and the radiology. He claims that his sleep is disturbed by his pain. He requires the taking of a range of medications including Mobic, Tramal and Panadol on a regular weekly basis and as the need requires.
20 He alleges a reduction in his driving ability, restriction in the heavier domestic and household tasks, stiffness in his lower back in the morning, a restriction in various recreational activities, including his church activities, and in particular, restriction in his employment prospects.
21 In relation to the various medical opinions, I do not accept the opinion of Mr Marshall, who found that there was no physical injury. I prefer the opinions of Mr Battlay and Mr Shannon, who diagnose mechanical discogenic low-back pain without radiculopathy. In particular, in my view, the opinion of Mr Shannon is apposite. He said that the plaintiff was suffering from fairly typical mechanical back pain associated with a small L4-5 disc protrusion. He said the protrusion was work-related without nerve root compromise and without any indication for surgical intervention.
22 He referred to the fact that the plaintiff at the time was taking 50 milligrams of Tramal a day, as well as Mobic, was undertaking a gymnasium and hydrotherapy program and had attended Dorset Rehabilitation Centre. He said that his condition was stabilised and in particular, he said that the prognosis for his back was that it was susceptible to further injury. I accept the opinion of Mr Shannon.
23 I found the plaintiff generally to be a frank and honest witness, there was no substantial attack upon his credit. I found the histories provided to the various doctors as reliable and I am satisfied that I can generally accept his complaints of low-back pain and restriction. I further note that he has made application for various jobs in the area in which he believes he is able to obtain employment and I accept that he is motivated to find suitable employment.
24 I conclude that the plaintiff suffered an injury to the L4-5 disc of his back and that he suffers discogenic mechanical low-back pain as a result of that workplace injury.
25 On behalf of the defendant, Ms Kaye submitted the following:
· the plaintiff was able to lead a close to normal life with only modest restriction in his activities;
· that the pathology involved at the L4-5 level was modest and that generally his restrictions did not significantly compromise his recreational and domestic activities;
· there had been limited treatment in the past by specialists and little treatment at the present time save in respect of the attendance at his general practitioner;
· he was able to participate in a wide range of domestic tasks and involve himself in his church;
· it was significant to determine what had been lost by what in fact he had retained and what he was able to do and she said that he was capable of returning to a large range of work activities.
26 There are a number of significant matters, in my view, to be taken into account. The first is that the plaintiff is a relatively young man of only thirty-four years of age with a disrupted L4-5 disc causing mechanical low-back pain which he has had now over four years. None of the medical practitioners are of the view there is any treatment with significant prospects for any remedial effect from that pain.
27 I accept that he does have low-grade mechanical back pain on a constant basis and that this affects a number of aspects of his life. Importantly, he has reduced employment prospects which is particularly significant for a man of his age, with his limited English and his migrant background. He faces the prospect of limited work availability given his training and experience outside of factory work. I accept that this is a consequence of significance as it reflects a loss of enjoyment of life. Further, the mechanical back pain requires him to take a significant dose of medication on a regular basis and I accept the opinion of Mr Shannon that his back is rendered susceptible to further injury in the future.
28 Bearing in mind these consequences, I do find that the consequences to the plaintiff do reach the very considerable level and are more than significant and marked.
29 Accordingly, I propose to grant leave to the plaintiff to bring proceedings at common law, for pain and suffering damages.
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