Ratnatilake v Capral Limited
[2018] VCC 1831
•20 September 2018 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00275
and Case No. CI-17-00276
| LIONEL RATNATILAKE | Plaintiff |
| v | |
| CAPRAL LIMITED (ACN 004 213 692) | First Defendant |
| and | |
| LABOUR POWER RECRUITMENT SERVICES PTY LTD (ACN 102 195 219) | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 August 2018 | |
DATE OF JUDGMENT: | 20 September 2018 (Revised) | |
CASE MAY BE CITED AS: | Ratnatilake v Capral Limited & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment of the lumbar spine – pain and suffering – range
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Peak Engineering v McKenzie [2014] VSCA 67; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Altona Bus Lines v Lococo [2002] VSCA 159; Humphries & Anor v Poljak [1992] 2 VR 129; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Proceeding No CI-17-00275 – application dismissed.
Proceeding No CI-17-00276 – application discontinued.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr D O’Brien | Zaparas Lawyers |
| For the First Defendant | Mr R H Stanley | IDP Lawyers |
| For the Second Defendant | Mr J Simpson | Russell Kennedy |
HER HONOUR:
1 When the hearing commenced, the plaintiff sought leave to bring proceedings for damages for both pain and suffering and loss of earning capacity against his two former employers, the first and second defendants.
2 At the end of the first day of the hearing, counsel for the plaintiff indicated it was not intended to proceed against the second defendant. This decision followed the plaintiff’s evidence that he did not suffer injury whilst in the second defendant’s employ.[1]
[1]Transcript (“T”) 91
3 During his closing address, counsel for the plaintiff indicated the application in relation to loss of earning capacity was not pursued against the first defendant.[2]
[2]T103
4 The plaintiff now seeks leave to bring proceedings for damages for pain and suffering pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by him in the course of his employment with the first defendant from 2001 to 2003 (“the said period”).
5 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning a “permanent serious impairment or loss of a body function”.
6 The impairment of body function relied upon is the lumbar spine.
7 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
8 The impairment of the body function must be permanent.
9 The plaintiff bears an overall burden of proof upon the balance of probabilities.
10 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
11 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
12 Subsection 38(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] in reaching my conclusions.
[3](2005) 14 VR 622
14 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
15 The plaintiff is presently aged sixty-three, having been born in Sri Lanka in January 1955. He is married with two children.
16 Having attended technical school, the plaintiff learnt the trade of an automotive mechanic. He was initially employed in this role and later had his own car mechanical workshop, which he ran for about six years, before coming to Australia in 1990.
17 Within three months of his arrival in Australia on 30 June 1990, the plaintiff found work with Bayford Motors as a mechanic, where he worked for about five years. He was then unemployed for about eighteen months, before he commenced work with the first defendant on 30 October 1997.
18 After a few months in that employ, the plaintiff’s job involved lifting twenty to forty dies a shift, in and out of die holders. He did that job for about three to four years. He had occasional lower back pain from about 2001 while doing this lifting. He did not have any time off work. He saw the work doctor, and had occasional physiotherapy. He also had occasional right elbow pain, for which he saw a work doctor, and also Dr Menon, his general practitioner, in Niddrie.
19 Whilst the plaintiff was certain he did not lodge a claim for compensation at this time,[4] he did sign a Claim Form on 24 June 2001. In that form he described “”lifting die from [?] to place in tray”. The injury was strain of the lower back, with the incident occurring on 24 May 2001.
[4]T27
20 Counsel for the first defendant advised the first defendant did not submit his claim to the agent, but paid medical expenses to March 2004 totalling $2,102.00. There was no time off work and no claim for weekly payments. There was no s98C application.[5]
[5]T55
21 In October 2003, the plaintiff developed back pain gradually over a few days. He saw the work doctor, Dr Tunaley. Unlike previous episodes of back pain, the pain continued.
22 The plaintiff also saw Dr Menon, who arranged lower back x-rays on 14 October 2003, a CT scan of the sacroiliac joints on 24 October 2003 and a bone scan on 30 October that year. The plaintiff may not have seen Dr Menon after 25 November 2003.[6]
[6]T39
23 Dr Menon also referred the plaintiff to Dr David Barraclough, a rheumatologist, whom he saw once or twice. The plaintiff cannot remember Dr Barraclough mentioning ankylosing spondylitis (“AS”) to him but he knew what that condition was.[7]
[7]T9
24 In the meantime, Dr Tunaley arranged for the plaintiff to undergo a lumbar CT scan on 17 October 2003.
25 The plaintiff was moved from the die section to work in the first defendant’s packing department for a few months. He also had physiotherapy at Dr Tunaley’s clinic about once a week during that time.
26 In about December 2003, Dr Tunaley referred the plaintiff to Mr Roy Carey, an orthopaedic surgeon, whom he saw once, in December 2003.
27 The plaintiff agreed with the history recorded by Mr Carey on that occasion but he could not quite remember if he could then do a sit up and leg hold without much trouble, as Mr Carey noted.[8] He may have known about Mr Carey’s advice to do light work in 2003.[9]
[8]T10
[9]T26
28 In re-examination, the plaintiff agreed he told Professor Brazenor after he left the first defendant he was looking for lighter work. He then said he could not remember who Mr Carey was but then said that he asked him to look for light work, and after that advice, the plaintiff started doing so. The plaintiff’s back pain did not cease at all, and it has never improved to the point where he believed he could resume heavy work.[10]
[10]T62
29 Counsel for the first defendant advised that weekly payments were agitated against the first defendant by way of a new Claim Form, dated 9 January 2012. The form set out the plaintiff having a sore back at work in 2003. He first noticed the condition in October 2003. The matter was agitated in the Magistrates’ Court and settled on terms with a denial.[11]
[11]T55
30 The plaintiff also submitted a Claim Form dated 7 November 2013 for a lower back injury, gradually, in the course of employment, as a result of heavy and repetitive manual duties working with the first defendant during the course of 2001 to 2003.
31 In about early 2004,[12] the plaintiff was transferred by the first defendant to work on a small machine cutting aluminium. He did these duties for a few months and was then placed in the anodizing section, making aluminium pipes, weighing about 2 to 8 kilograms, and packing them.[13] Even though he was supposed to be doing light duties, realistically he did his normal duties.[14]
[12]After Mr Carey’s examination
[13]T11
[14]T12
32 At the end of 2004, the first defendant offered the plaintiff a redundancy package, which he took.
33 On about 1 May 2005, the plaintiff found work through Select Australia, a labour-hire company, working at Abdcor, a business next door to the first defendant’s premises. The plaintiff operated a machine which bent aluminium pieces. He worked in this capacity until February 2006 when Abdcor employed him direct until about the end of 2007. The plaintiff continued to have back pain and saw doctors in Niddrie occasionally.
34 The work at Abdcor was full time. The plaintiff handled very thin aluminium used on the trucks.[15] He disagreed the job was repetitive. He did different jobs every day. Whilst there was repetitive lifting of the truck parts from the machine onto the pallet, it was not that heavy. Other jobs at Abdcor did not involve lifting. Work on the CNC machine at Abdcor was not heavy, and the plaintiff could sit down at times during this work.[16]
[15]T13
[16]T14
35 In early 2008, the plaintiff found work with Skilled Labour Hire, working as a full time machine operator at BlueScope and also at Sumitomo, where he worked until about August 2008.
36 The work forming sheets at BlueScope was not difficult. Another worker helped the plaintiff with manual pulling. The plaintiff only worked there for a couple of months.[17]
[17]T15
37 After this job, the plaintiff worked for Ready Work Force, another labour hire firm, as a forklift driver at Jalna, and also the Promotions Factory for about a month. He then got work through Integrated, another labour-hire firm, working as a process worker, picking stock from a conveyor for about two months until the end of 2008.
38 The plaintiff was offered continuing work in this job but found the standing and bending picking from the conveyor caused increased back pain. He had not told his employers since leaving the first defendant that he had back pain as, otherwise, he would not have obtained work.
39 In cross-examination, the plaintiff said he could not remember the work at the Promotions Factory, and he only worked at Jalna for a very short period of time.[18]
[18]T15
40 The plaintiff was then off work for a couple of months before finding a job through Labour Force, another labour-hire firm, working in Campbellfield, operating a plastic extrusion machine making pipes. He worked there for a few months before applying for and finding work at Iplex, where a few friends of his were working, doing the same job. The job was full time, five days a week. The plaintiff worked there for about eighteen months. He continued to have some back pain.[19]
[19]T16
41 While working at Iplex, the plaintiff had some neck and left arm pain. He saw Dr Scarlett at Fawkner, who arranged a cervical x-ray on 23 June 2009. He also referred the plaintiff to Austin Health, where he had a cervical MRI scan.
42 When the plaintiff attended the Austin Hospital in 2009 for his neck complaint, the Hospital recorded that he did not suffer with any significant medical problem. The plaintiff explained his neck would have been worse for him then, and that was why he was concentrating on it. He had ongoing pain anyway. He had problems with walking “right along”.[20]
[20]T20
43 The plaintiff agreed from the time he saw Mr Carey in late 2003 to when he started work with the second defendant, for six-and-a-half years he worked at various jobs doing predominantly process work full time in jobs that required some physical lifting – in certain instances he had to. He was not involved in repetitive jobs during that period.[21]
[21]T17
44 During that six-and-a-half years, the plaintiff had back pain, but he put up with it and continued working. He controlled his pain with painkillers like Panadol. He could work but with pain.[22]
[22]T17
45 The plaintiff agreed that in that period before 2010, he was able to operate injection and extrusion machines and other die-related heavy industrial equipment and that he was a skilled machine operator.[23]
[23]T24
46 The plaintiff’s back pain from 2001 had not resolved. It did not get better after the injury up until today. He kept working because he had the responsibility of keeping his family and had to continue with his job, even with pain.[24]
[24]T18
Medical treatment after leaving the First Defendant
47 The plaintiff agreed he stopped seeing Dr Tunaley in January 2005, but not because his back was not troubling him.[25] In re‑examination, he explained the he stopped seeing Dr Tunaley because if he was to apply for other jobs, Dr Tunaley’s reports “… were there and … they would have gone against me”. He was concerned that would affect his ability to get further work.[26]
[25]T19
[26]T62
48 The plaintiff initially said he saw Dr Alazam between January 2005 and 2011, but then went on to say he may have seen some other doctor during that time.[27] He did see a Dr Habib in Campbellfield between 2004 and 2010. Dr Habib was close by. Dr Alazam was the plaintiff’s wife’s doctor, so he also went to him.[28]
[27]T40
[28]T41
49 Medicare records indicated the plaintiff saw Dr Habib in April 2004, December 2006 and April, August and November 2007. He did not know why Dr Habib had not provided a report.[29]
[29]T42
50 The plaintiff could not remember how many times he had seen Dr Habib, but he had seen doctors for a range of problems other than his back, including carpal tunnel, elbow pain, neck, left arm pain and his left Achilles.[30]
[30]T46
51 The plaintiff attended Northern Hospital on 3 August 2005 complaining of left-sided back pain.[31]
[31]Hospital report dated 30 April 2005
52 The plaintiff also remembered seeing Dr Perillo in Fawkner, who often saw his wife.[32] Dr Perillo might not have provided a report, because he was very old. The plaintiff saw Dr Scarlett in Fawkner in September 2006 because of his Achilles. Mobic was prescribed.[33]
[32]T42
[33]T47
53 The plaintiff denied that between 2003 and 2010 he was essentially pain free.[34]
[34]T22
Work with the Second Defendant
54 After leaving Iplex, the plaintiff was then off work for a few months before finding further work with the second defendant, working at Summit Manufacturing Pty Ltd. He started work on 31 August 2010, operating a plastic extrusion machine.
55 The plaintiff explained that he denied any previous back problem when he applied for this job because he was worried he may not get the job.[35]
[35]T26
56 In his first affidavit, the plaintiff described his duties with the second defendant in some detail:
“… the second employer made a sheet of plastic which was wound onto a large roll. About every 2 hours he would have to cut the sheet on the roll and re-feed the sheet of plastic onto another roll. I would put the cut roll of plastic on a pallet using an overhead crane and strap it with plastic strapping which I would lever tight with a machine. The rolls weighed about 800 to 900 kilograms and were about 60-70 centimetres in width and about 60 centimetres in diameter. I would stack the rolls on pallets using a forklift. Sometimes the plastic I was moulding into a sheet would stick in the mould and I would have to manually pull the sheet clear of the machine. I would get some assistance from the machine operated roller but would have to remove a lot of scratched plastic stuck to such rollers. Most days I would have to pull scrap plastic from the machines or sheets of plastic which would come out of the machine defective and I could get up to 20 - 200 kilograms of scrap plastic. If I had pulled a defective sheet from the machine I would then make it into a roll by hand with the edge of the sheet on the floor and when I had enough cut it and lift this scrap plastic and put it into a skip over a lip about 1.2 metres from the floor. Such rolls usually weighed about 10 - 15 kilograms. If the scrap had come through the machine onto the roll often the diameter of the roll was not sufficient that I could use the forklift available. The smaller rolls could weigh between 20 and 50 kilograms. The practice to move these was for me to put a metal shaft about 1.5 metres long by about 5 millimetres in diameter weighing about 10 kilograms through the centre of the roll and then lift the shaft with one half of the roll onto one side of the pallet and then repeat the process with the other side and then pull the roll onto its edge so that the metal shaft was vertical before pulling the metal shaft out from the top of the roll. The top of the roll could be about 75 centimetres from the floor. I would get about 10 to 15 of such rolls which I’d have to move a week. Usually they came in groups from the same batch.”
57 While working for the second defendant, the plaintiff became gradually aware of increased back pain when lifting the scrap plastic. He did not want to ask for help because he was afraid of losing his job.
58 After about a week of increased back pain, the plaintiff saw Dr Alazam on 25 July 2011. He prescribed Panadeine Forte and arranged a lumbar x-ray that day. The plaintiff continued to work, taking painkillers, and his back pain eased, but in early December 2011, it became worse and he required further medication.
59 The plaintiff stopped work on 23 December 2011, at the start of the Christmas holidays. He could not return to work thereafter because of back pain. He has not worked since.
60 The plaintiff’s general practitioner certified him unfit for work. When he realised he could not go back to work, the plaintiff went on Centrelink benefits and it was suggested he apply for a Disability Support Pension.
61 While working for the second defendant, the plaintiff had some further worse neck pain. Dr Scarlett arranged a cervical x-ray on 11 January 2012. At the time, the plaintiff also had ongoing back pain spreading into his right leg.
62 A friend suggested the plaintiff make an accident compensation claim as the accident had happened at work. The plaintiff rang Advice Line and was told he had a claim and to obtain an accident compensation certificate from a doctor.
63 When it was suggested to the plaintiff he managed very well until the time he saw Dr Alazam in July 2011, he said he had ongoing pain and he worked with difficulty.[36] He managed in that period with all his painkillers. His first injury was not when he was working for the second defendant.[37]
[36]T31
[37]T32
64 The plaintiff could not remember why he went to Dr Alazam, or that he had been in severe pain for a week before the July 2011 consultation. He remembered telling Dr Alazam it was a long story.[38] He could not remember telling him six months later about having an old injury at work. That could be correct but he could not remember this discussion.[39]
[38]T21
[39]T22
65 When it was suggested to the plaintiff there was no mention of an injury at the work with the second defendant in any doctors’ notes, he said “I had the back pain before that but I did not injure my back whilst at Summit”. The back pain was there before early 2012.[40]
[40]T33
66 The plaintiff agreed he worked full-time hours with the second defendant, which at certain times involved heavy work.[41] It was a heavy job. He did not ask for help, because he was afraid he would lose his job.[42]
[41]T59
[42]T60
67 The plaintiff had increasing problems with his back in early 2012. He agreed that his back was getting worse.[43] He stopped work because his pain increased to that extent in 2011. He then disagreed that things worsened after he ceased working, but then said sometimes his pain fluctuates.[44]
[43]T33
[44]T34; T56
68 Dr Alazam suggested the plaintiff go back to his old general practitioner at the old workplace, Dr Tunaley.[45] The plaintiff saw Dr Tunaley on 30 January 2012 and he was referred to The Alfred hospital for his neck and back but could not get an appointment there until 2013.
[45]T35
69 Dr Tunaley also referred the plaintiff for physiotherapy. He went only a few times and that treatment made his back pain worse. The plaintiff had a lumbar CT scan on 4 April 2012 and he was referred for hydrotherapy, which he had once or twice a week on a continuing basis.
70 At that stage, the plaintiff was having trouble sleeping because of his back pain. He started to use elbow crutches to take the strain off his back.
71 There was a delay in the plaintiff’s claim being accepted, and he was becoming quite anxious with ongoing back pain. He had occasional pain in his chest and difficulty breathing, and also felt dizzy at times.
72 The plaintiff started attending Roxburgh Park Super Clinic in June 2012, where he saw Dr Vipulaguna for dizziness. That doctor spoke his language. At about this time, the plaintiff stopped seeing Dr Alazam at Fawkner.
73 The plaintiff continued to see Dr Tunaley for his neck and back. Dr Tunaley prescribed Endep in July 2012, which helped the plaintiff sleep.
74 In about September 2012, Dr Tunaley referred the plaintiff to neurosurgeon, Professor Bittar. He saw the plaintiff on 11 January 2013. He arranged a lumbar MRI scan, which the plaintiff had the following month. On re-examination on 27 March 2013, Professor Bittar advised against surgery and referred the plaintiff to pain specialist, Dr Gassin.
75 The plaintiff saw Dr Gassin on 6 May 2013. He prescribed prednisolone, which the plaintiff took for a few weeks, but it did not help. Dr Gassin then suggested to Dr Tunaley that the plaintiff’s pain-relieving medication be changed to Tramal. He also suggested possible lumbar injections, but they were not initially approved by WorkCover. The plaintiff saw Professor Bittar again on 13 November 2013 on referral from Advice Line Lawyers.
76 On 20 November 2013, the plaintiff woke up with a lot of back pain and could hardly move. He was taken to the Northern Hospital and given injections for the pain. He was discharged that evening and went to see Dr Vipulaguna, who gave him further medication, and also referred him to Mr Gonzalvo, a neurosurgeon.
77 Dr Tunaley referred the plaintiff back to Professor Bittar. When the plaintiff saw him on 6 January 2014, he advised against surgery.
78 Because of difficulties attending Dr Vipulaguna, the plaintiff started to see Dr Abeysirigunawardana in Craigieburn. He referred the plaintiff for physiotherapy with Pamela Teoh, whom he saw about four or five times that year. The plaintiff stopped seeing Dr Vipulaguna at the end of 2013, as he was happy with Dr Abeysirigunawardana.
79 The plaintiff was seen by Mr Gonzalvo on 11 February 2014. He sent the plaintiff for hip x-rays and referred him to another surgeon, whom he did not see, as he was being treated by Dr Gassin.
80 The plaintiff saw Dr Gassin again in early 2014. He then arranged for nerve branch blocks, which took place on 27 March 2014. These numbed the plaintiff’s back pain for a few hours, but otherwise nothing changed. The plaintiff continued to see Dr Gassin, who kept changing his medication and tried to organise pain management, but the plaintiff did not believe that was approved by WorkCover. The plaintiff has not seen Dr Gassin since the end of 2014.
81 As of August 2016,[46] the plaintiff was seeing Dr Tunaley and Dr Abeysirigunawardana, each about twice a month, and having hydrotherapy once or twice a week. He took two to three Panadol tablets a day when his back was worse and occasionally during the night, except when he substituted with Panadeine Forte. He also then took Mobic, 15 milligrams in the morning, and, Endep, 25 milligrams at night, as well as blood pressure medication.
[46]Plaintiff’s first affidavit
82 At that stage, the plaintiff had constant lower back pain, which was an ache, feeling like there was a stone in his back. It spread at times between his shoulder blades and at times it could be painful to breath. The back pain was worse with any twisting or jarring. If he moved the wrong way, the plaintiff got a sharp pain in his back.
83 In 2012, the plaintiff had started to use crutches. Dr Tunaley saw he was in pain when walking, and suggested he might obtain some relief if he used them. The plaintiff was walking on a bit of a slant and a tilt, which gave him back pain. He found crutches made it easier for him to take weight off parts of his back and helped him with his balance.[47]
[47]T63
84 The plaintiff started using a walker after the neck surgery.[48] He did so because he could not use the crutches, because they gave him neck pain. He may have been using a walker some months before the neck surgery.[49]
[48]T58
[49]T48
85 The plaintiff would have been walking with difficulty, even if he was not using crutches, when he saw Mr McInnes in May 2012.[50] He could not remember how he moved then. He did have the pain, despite findings by that doctor that there was no tenderness on examination.[51]
[50]T48
[51]T49
86 The plaintiff did not think he was not using crutches when he saw Professor Bittar in March 2013. As far as he remembered, he would have been using them. He agreed that by the November 2013 examination, he was quite disabled. Maybe the condition worsened after he stopped working.[52] That probably would have been the situation.[53]
[52]T51
[53]T52
87 The plaintiff agreed, as Professor Brazenor reported, that he noticed he had numbness in his legs, getting worse, particularly since December 2016. Probably his gait was how Professor Brazenor then described it.[54] His left leg had been dragging since the end of 2016 and he found it difficult to walk.[55]
[54]T57; see paragraph 254 of my Judgment
[55]T58
88 The plaintiff denied he used the walker partly because of his neck pain. He uses it because of his back pain.[56] It is good for his back, because he puts his weight on it.[57]
[56]T61
[57]T65
Consequences – first affidavit
89 As of August 2016, the plaintiff had problems being on his feet for about forty-five minutes before his back discomfort increased. He had to move slowly and cautiously constantly and adjust the weight taken on his legs. He had to drive more cautiously to avoid jarring in his back.
90 The plaintiff had difficulty sleeping because of back pain, and he was very slow to get going in the morning. When washing, he had to lean forward to support himself on the basin. Even brushing his teeth induced increased back discomfort. He used a shower chair and had to sit down to put on his pants.
91 The plaintiff’s relationship with his wife and children had suffered greatly and he was no longer able to do domestic tasks like putting out the bin.
92 The plaintiff had previously enjoyed table tennis, but had to stop playing because of increasing back pain. He also had to stop playing the electronic keyboard because of his back pain, which made it difficult to concentrate, and he also had problems sitting.
93 Prior to 2011, the plaintiff was an active member of the Buddhist community but, since then, had generally socialised less. He was embarrassed using crutches and having to answer questions about his health. He became teary or angry easily, and felt guilty how the injuries had affected his family.
94 The plaintiff believed he injured his back at the result of performing frequent heavy and forceful movements and operations in the course of his employment with the first defendant and/or second defendant.
95 The plaintiff swore a further affidavit on 23 April 2018.
96 The plaintiff had undergone carpal tunnel surgery from which he had made a good recovery. He also had a ruptured appendix and made a good recovery from that surgery in late 2017.
97 Although the plaintiff’s neck symptoms improved after the May 2017 surgery, he continues to suffer from pain and restrictions in his neck. He had suffered from neck pain prior to his employment with the second defendant and had been able to manage the pain for many years, including being able to work and engage in activities of daily living. He had had a good result from the surgery and his neck pain does not prevent him from working or engaging in any activities of daily living.
98 Since neck surgery, the plaintiff’s neck “was not a hundred per cent good”, but it was much better. His left leg symptoms have also greatly improved “no issues at all”.[58] He could not recall any falls since the neck surgery.[59]
[58]T64
[59]T65
99 The plaintiff continues to suffer from significant pain and restriction in his back, and referred pain in his leg. It is more severe than any residual neck pain and he has also developed symptoms of anxiety and depression.
100 The back pain is constant but fluctuating. It spreads into his shoulder blades at times, which impacts on his ability to breathe and he has ongoing problems when he moves or twists too quickly. The referred pain into his legs continues to impact on his ability to stand or walk any substantial distance. He still uses a walking frame to help with mobility.
101 The plaintiff continues to rely on pain medication. He is prescribed OxyNorm, Targin and Panadeine Forte, and also takes over-the-counter medication when the pain is particularly severe. In the past, Lyrica has not been of much assistance.
102 The plaintiff’s problems sleeping continue. He has tried to rehabilitate himself as much as possible with self-directed hydrotherapy, lumbar injections, physiotherapy, acupuncture and Pilates, but not had any lasting relief. He has been told there is nothing further than can be done.
103 The plaintiff is unable to return to any employment. His English is very limited and he has communication problems. His back pain and restrictions prevent him returning to work as a machine operator, and from any work involving lifting weights, or prolonged posture, or regular twisting motions.
104 Lack of sleep means the plaintiff is not alert to be able to work safely and the medication he takes prevents him from operating heavy machinery.
105 The plaintiff’s constant pain prevents him from ever working as a mechanic. That was always an important role for him to fall back on if he needed to, although he had not worked as a mechanic for many years. Until ceasing work with the second defendant because of back pain, he had been able to service his own car.
106 The plaintiff’s inability to work has been devastating, destroying his confidence, and often he feels no longer worthy to be a husband or father because he cannot financially provide for his family.
107 The plaintiff finds it difficult to get out of bed and get dressed and do personal hygiene tasks. Intimate relations with his wife have completely ceased due to his pain and restrictions, which cause friction in their relationship.
108 The plaintiff has gained weight due to his inability to walk for long periods and also his comfort eating.
109 The plaintiff has increased back pain with prolonged postures. Accordingly, he has to change his position constantly and no longer enjoys socialising.
110 The plaintiff has not been able to return to playing the electric keyboard or piano, as he cannot concentrate or sit for long periods of time. This has been a significant loss for him.
111 The ongoing pain and restrictions in his back impacts on the plaintiff’s ability to drive, and he struggles to conduct head checks and finds it difficult to park. This situation has significantly reduced his independence.
112 The injuries the plaintiff sustained during the course of his employment with the first and/or second defendant continue to have a significant impact on his life.
Treaters
113 Complaints of back pain were noted by the plaintiff’s general practitioners on the following dates from 2003 until July 2011:
·Willandra Medical Clinic Epping - Dr Flaim - 2003 - 29 April, Dr Tunaley 5 May, 7 October, 13 October, 16 October, 20 October, 22 October, 5 November, 12 November, 26 November, 3 December and 19 December.
· 2004 - 19 January, 16 February, 17 March, 15 November and 22 November
· 2005 - 24 January and 30 April
· 2010 - Dr Alazam - 7 January 2010[60] and 25 July 2011
· Northern Hospital - 30 April 2005.
[60]Not mentioned in Dr Alazam’s report but included in agreed summary by counsel
114 In the joint summary of all clinical notes in this period, there were numerous illegible entries and attendances unrelated to any back complaint.
115 There were a number of illegible entries in the Fawkner Health Care notes - three in 2004, seven in 2005 and one in 2008 and 2009.
116 The plaintiff saw Dr Tunaley four times during 2003 and in March 2004 for issues unrelated to his back.
117 The plaintiff attended Dr Scarlett at Fawkner in September 2006 for his Achilles heel. In October 2007, he was prescribed Mobic. On 23 June and 25 June 2009, the reason for contact was neck and left arm pain. Oxynorm was prescribed on 9 July 2009.
118 The plaintiff saw Dr Alazam at Fawkner for a vaccination on 13 November 2009. Pathology was requested on 15 April 2010 and a prostate examination recommended on 5 May 2010. Blood test results were discussed on 17 February 2011 and urinary issues were mentioned on 15 June 2011. Mobic was prescribed on 14 July 2011 and a prostate examination recommended.
119 The plaintiff saw Dr Habib for pain, and Panadeine Forte was prescribed on 7 August 2007. A fortnight later, the plaintiff attended complaining of a cough. Mobic was prescribed on 22 November 2007. There were two further attendances in August and January 2009 unrelated to the plaintiff’s back. The plaintiff was seen for a smoking and alcohol assessment on 20 March 2009.
The Plaintiff’s treaters
Dr Tunaley
120 Dr Tunaley completed a Medical Practitioner Questionnaire on 12 April 2012.
121 In that form, Dr Tunaley noted the initial presentation in April 2003 of low back pain and right thigh pain, with restricted movement – “25 April 2003, original injury, not gone away, so never resolved. Back + leg pain on left + right now more right side.” The mechanism of injury was lifting packs of aluminium tubing and lifting dies.
122 Dr Tunaley noted the plaintiff was no longer with Capral and was unlikely, with the injury and age, to find suitable work, and he had applied for a Disability Support Pension.
123 In a letter to the Conciliation Service of August 2012, Dr Tunaley advised that the plaintiff had stated his original back pain never went away and he was attending his general practitioner for medication, but not attending Dr Tunaley’s clinic.
124 Dr Tunaley noted the plaintiff did not inform his general practitioner it was WorkCover, as he thought if he got better he might have a better chance to get a job. Dr Tunaley advised that, in general, significant discogenic back pain never goes away, the patient just learns to cope with it, and in his view, that was the case with the plaintiff. The plaintiff was then being prescribed Endep, Panadol Osteo and Panadeine Forte.
125 Dr Tunaley advised Advice Line Injury Lawyers in October 2013 that there had been no change in the plaintiff’s condition since August the previous year and he continued to have low back and right leg thigh pain:
“We cannot be certain of the origin of this pain, but it is possibly disc related with facet arthropathy and a pars defect with canal stenosis.”
126 Dr Tunaley referred the plaintiff for a neurosurgical opinion with Professor Bittar, who thought surgery would be a poor option. He also referred him to Dr Gassin for spinal injections.
127 In March 2014, Dr Tunaley advised that since October 2013, there had been no change in the plaintiff’s condition. He confirmed he could not be certain of the origin of the pain, noting the referral to Dr Gassin, with the spinal injections to be done soon.
128 Examination remained unchanged. The plaintiff was then using crutches and had low back and right leg pain, and was unfit to work.
129 In the long term, Dr Tunaley thought it unlikely the plaintiff would be fit to work and would have a degree of chronic pain in his back and legs. He was not hopeful that the proposed treatments were going to provide any long-term benefit, but the plaintiff felt he needed to try something.
130 In August 2015, Dr Tunaley wrote to Zaparas Lawyers. He then advised that there had been no change in the plaintiff’s condition and that the plaintiff rated his pain as 4 out of 10.
131 Dr Tunaley confirmed that he could not be certain of the origin of the pain but it was possibly disc related, with facet arthropathy. It was likely the plaintiff aggravated underlying degenerative changes with his work, but Dr Tunaley could not be certain. Whether the pain the plaintiff now felt was directly related to work, or was part of his constitutional changes, Dr Tunaley did not know. He noted the spinal injections failed to improve the situation. The plaintiff was then taking Endep, Lyrica and paracetamol. He was still on crutches and was unfit to work.
132 Dr Tunaley again wrote to Zaparas Lawyers in February 2018, repeating his views as to uncertainty of the origin of the plaintiff’s pain. He noted that the current pain may be due to constitutional changes that would occur naturally, or central sensitisation, but a pain specialist would be better to comment.
133 Dr Tunaley did not know, on the balance of probabilities, if the plaintiff’s employment was the cause or contributing to his current chronic pain as the diagnosis is not clear. In the long term, he thought it unlikely the plaintiff would be fit for pre-injury alternative work and that he would continue to have a degree of chronic pain in his back and legs. He was not hopeful any treatment would provide long-term benefit.
Mr Carey
134 Dr Tunaley referred the plaintiff to Mr Carey, orthopaedic surgeon, in December 2003.
135 Mr Carey advised that the plaintiff had disclaimed any history of back injury until about a year ago, when he had some back discomfort in the course of his normal duties, which recovered 100 per cent, then three months ago, once again, in the course of his normal work, he developed some increasing back pain, principally right sided, and about two days later, developed some pain in the left heel. There was no sciatica, however, between the heel pain and the back.
136 The plaintiff was then on light duties and he had had some help from Vioxx, Di-Gesic and physiotherapy.
137 On examination, there was no spinal deformity. Flexion was such the plaintiff could touch his toes and extension reproduced his pain. There was no muscular wasting or weakness in either lower limb, no evidence of nerve root irritation and none of conduction deficit, despite his heel pain. On the other hand, the plaintiff does have some heel tenderness, simply some local heel pain.
138 The plaintiff was able to do a sit up and leg hold without much trouble. Prone, he was extremely tender just over the lower segment in the midline and more to the right than the left.
139 Plain x-rays confirmed a low degree spondylolytic spondylolisthesis at L5-S1, with some degenerative changes in the disc, and also some disc degeneration at L3-4. The CT scan confirmed the old pars defects, and the classical disc deformity associated with that condition.
140 Mr Carey advised there were no certainly no indications for any invasive treatments and he would only suggest referral back to the therapist for a core stability program. On the other hand, he noted the plaintiff likes doing very heavy work and has only experience in heavy work, both in Sri Lanka and Australia.
141 Mr Carey advised:
“Whether we like it or not I guess he is going to have to remain on the alternative duties he is doing at present, perhaps even retrain into something which is more consistent with his current problem and the projection that if he returns to heavy work he is likely to keep re-injuring.”[61]
[61]Report dated 5 December 2003
142 Mr Carey advised he was very happy to see the plaintiff again should the need arise. No further appointments have been made.
Dr Alazam
143 Dr Alazam at Fawkner Health Care, first saw the plaintiff with lower back pain on 25 July 2011. The plaintiff was in severe pain that day and had been in pain for a week beforehand. He could not recall when or how he injured his back at work. An x-ray was requested and painkillers prescribed.
144 The plaintiff returned on 5 August 2011. The x-ray results which showed severe degenerative changes in the lumbosacral spine, especially at L5-S1, were discussed with the plaintiff. Dr Alazam advised him to have physiotherapy and take glucosamine.
145 On 10 December 2011, the plaintiff presented with a flare up of lower back pain. Painkillers and NSAIDs were prescribed.
146 On 13 January 2012, the plaintiff presented with another flare up of lower back pain radiating into his right leg. He was referred to neurosurgeon, Mr R O’Brien. The plaintiff informed Dr Alazam the condition related to an old injury at work for which he had an old WorkCover claim. Dr Alazam advised the plaintiff to see his previous general practitioner regarding the old WorkCover claim as he was not involved in the case at all.
147 On 21 January 2012, the plaintiff presented, asking for a referral to see a neurologist at a public hospital, as Mr O’Brien did not see patients without private cover. A referral was made to a neurosurgeon at the Austin Hospital, and the plaintiff was awaiting an appointment.
148 Dr Alazam was unaware the plaintiff had an old work injury and an old WorkCover claim. The plaintiff had another general practitioner for that condition and claim, for which Dr Alazam had no involvement. He could not comment on the plaintiff’s capacity to work, given he did not know, nor had known, his previous job life. He then thought conservative treatment was warranted until the plaintiff had seen the neurosurgeon. As far as Dr Alazam was concerned, the plaintiff was capable of undertaking the necessary activities of daily living.
Professor Bittar
149 Professor Bittar reported to the plaintiff’s solicitors in September 2013. He initially saw him in January 2013, and again in March 2013, when he was referred by Dr Gassin.
150 In terms of history, the plaintiff complained of low back pain, left buttock pain, as well as right thigh numbness and nocturnal pain. He stated he originally injured his lower back at work in 2003 and made a partial recovery. He continued to experience significant symptoms over the years. He was reluctant to remain under WorkCover due to a fear of losing his job; however, his condition had deteriorated significantly over the one to two years leading up to the first consultation.
151 On examination, there was marked restriction of lumbar flexion and extension, and there was left-sided lumbosacral paravertebral tenderness.
152 Professor Bittar reviewed the lumbar CT scan of April 2012 and the MRI scan of February 2013. He diagnosed aggravation of lumbar spondylosis.
153 As the plaintiff was first seen as a private patient, Professor Bittar did not go into the circumstances surrounding the onset of symptoms in 2003. Therefore, he could not comment on causation.
154 Having discussed the option of a spinal cord stimulator and advised surgery was not appropriate, the plaintiff was told he was to be referred to Dr Gassin for pain management.
155 Professor Bittar then thought the prognosis was guarded, noting the plaintiff had suffered from significant low back related symptoms for a decade, and, whilst treatment may reduce the severity thereof, he would most likely continue to be significantly symptomatic. He thought it was likely that heavy physical activity had aggravated the plaintiff’s lumbar spondylosis.
156 Professor Bittar reviewed the plaintiff for medico-legal purposes on 13 November 2013. The primary purpose of that examination was to examine a further history in relation to the onset of symptoms. The plaintiff was not re‑examined.
157 In the history on that occasion, the plaintiff described work of a heavy physical nature with the first defendant, and that he began to experience lower back pain during the course of those activities in early 2001 while lifting heavy dies off the ground. He was supposed to be put on light duties, but continued to do repetitive bending and heavy lifting despite symptoms, and they persisted and deteriorated during 2003, with most of the deterioration around October 2003. He was unable to return to work, and his employment ceased in December 2004, at which time he was experiencing constant low back pain, radiating into his legs.
158 The plaintiff’s condition remained relatively stable until 2011, when it appeared he had deteriorated. Why, was hard to determine, because of language issues. Over the years between 2005 and December 2011, the plaintiff had worked in numerous roles, generally of a sedentary physical nature. He would generally work in different jobs for between three and six months. On each occasion he was forced to cease work due to his symptoms, and he had not been able to work since December 2011.
159 The plaintiff confirmed prior to working with the first defendant, not having a back injury or symptoms. Taking that into account, as well as the very repetitive and heavy type of work he was required to do for that employer, Professor Bittar thought that employment had been a very significant contributing factor to the plaintiff’s lumbar spine condition, and remained such a factor to his pain, disability and requirement for treatment.
160 In Professor Bittar’s view, the plaintiff was permanently incapacitated for pre-injury duties as a factory worker, and, given his limited English, work history, and the nature and severity of his lumbar condition, he had a negligible capacity to procure and maintain suitable employment on a permanent basis.
161 Professor Bittar also noted the plaintiff required crutches to walk, could not sit for more than thirty minutes or stand for more than five minutes without crutches, a range of restrictions that rendered him totally incapacitated.
162 Professor Bittar reported in December 2015 most recently having seen the plaintiff in January 2014 for ongoing neurosurgical advice. At that stage, he had recommended the plaintiff return to see Dr Gassin to discuss the option of diagnostic blocks. These had taken place in March 2014 but led to a two-week period of increased left-sided back pain.
163 Professor Bittar remained of the view the plaintiff suffered from aggravation of lumbar spondylosis to which employment had been a significant contributing factor.
164 Professor Bittar provided a supplementary report in July 2016 after he had been given details of heavy duties performed by the plaintiff with the second defendant. He was told that the plaintiff’s back pain deteriorated whilst lifting scrap plastic at work, and he ceased work due to his symptoms in December 2011.
165 Repeating the results of earlier lumbar investigations, Professor Bittar concluded the plaintiff’s employment with the first defendant had contributed to his current lower back condition by approximately 50 per cent. Work with the second defendant aggravated and exacerbated that condition, and contributed approximately 50 per cent to the plaintiff’s current condition. Professor Bittar was unable to say whether the employment with the second defendant had exacerbated the plaintiff’s cervical spine condition.
166 Professor Bittar reported in May 2018, relying heavily on the plaintiff’s most recent affidavit for information.
167 Professor Bittar diagnosed aggravation of cervical and lumbar spondylosis and AS. He continued his view as to the 50 per cent contribution of employment with the first and second defendant to the plaintiff’s current condition, namely aggravation of lumbar spondylosis.
168 Professor Bittar thought the plaintiff’s lumbar spine condition rendered him incapable of working in pre-injury employment or alternative employment. His cervical condition had been treated successfully with surgery, and his residual cervical spine symptoms did not prevent him from undertaking pre-injury work. He thought the likely prognosis of the cervical spine was very favourable, but the lumbar prognosis was poor.
169 Professor Bittar re-examined the plaintiff on 23 July 2018.
170 Following that examination, Professor Bittar confirmed his opinion in relation to causation and apportionment.
171 Professor Bittar thought the plaintiff’s lumbar condition was the dominant contributor to his pain levels. That condition alone rendered him totally incapacitated for work and materially contributed to his incapacity for work.
172 Professor Bittar thought the plaintiff’s neck condition causes a relatively minor degree of pain and does not have any significant impact on his capacity for work. In its own right, it does not materially contribute to the plaintiff’s incapacity for work.
Dr Gassin
173 Dr Gassin treated the plaintiff between May 2013 and October 2014 on referral from Professor Bittar.
174 Dr Gassin noted the plaintiff initially injured his back at work in 2003 but had not put in a claim, as he was keen to keep working. He was given a termination package. Since 2003, he had kept trying to find less physically demanding work. He advised he had suffered an exacerbation of symptoms in 2011 and had not been able to work since.
175 Oral prednisolone prescribed by Dr Gassin had absolutely no effect on the plaintiff’s pain. On 27 March 2014, the plaintiff underwent bilateral L3, L4 and L5 medial branch blocks which he found difficult to tolerate and led to increased pain – a response Dr Gassin thought was highly suggestive of central sensitivity.
176 Dr Gassin thought it was difficult to ascertain the source of the plaintiff’s symptoms.
177 Given the plaintiff did not present until ten years after his reported work-related back injury, Dr Gassin could neither confirm nor deny a relationship between work and his back condition. The plaintiff did not consult him until about two years after the 2011 exacerbation. Dr Gassin was unsure whether this represented a new injury or a recurrence or aggravation of the plaintiff’s previous condition.
178 Dr Gassin noted the plaintiff presented with chronic low back pain and his symptoms were at least partially due to central sensitisation. He thought the plaintiff was not fit to resume his previous work or alternate duties.
179 In a supplementary report of June 2016, Dr Gassin was asked to comment whether employment with the first defendant had contributed to the plaintiff’s current back condition, and, if so, to what proportion.
180 Dr Gassin advised it was likely there had been a contribution, but he could not attribute a proportion. He noted the plaintiff had bilateral L5 pars defects which predisposed him to development of low back pain in physically demanding work. Also, the October 2013 bone scan revealed increased uptake at both sacroiliac joints consistent with bilateral sacroiliitis. In Dr Gassin’s view, those changes were unlikely to be related to work, and may well also contribute to the plaintiff’s symptoms.
181 In terms of the second defendant, the description of duties suggested the work was physically demanding, and Dr Gassin had no doubt this contributed to the plaintiff’s low back pain. He could not comment on the contribution of the employment to the plaintiff’s neck pain, as he did not discuss it with him. He was also unable to comment on the proportion contribution of the plaintiff’s particular employment to his lower back condition.
Dr Vipulaguna
182 Dr Vipulaguna at Roxburgh Park Super Clinic wrote to the plaintiff’s solicitors in March 2018. He then diagnosed chronic severe lower back pain due to multi-level lumbosacral disc bulges.
183 Dr Vipulaguna noted the plaintiff had seen him only a limited number of times for his back problems and that he is not the plaintiff’s regular general practitioner.
184 On balance, with limited material, Dr Vipulaguna believed the plaintiff’s employment with the first and second defendants can be the cause of that condition, and that his employment has been a contributing factor to his back injury.
185 Dr Vipulaguna believed the plaintiff’s condition affected his capacity to do his pre-injury work as a machine operator or any alternative work, and that he was not fit for any work at that time, with an uncertain prognosis.
186 Dr Vipulaguna thought the plaintiff may benefit from psychological counselling for his depression and he needed ongoing regular painkillers, physiotherapy, hydrotherapy and exercises, with a proper chronic pain management program.
Dr Herath
187 Dr Herath from the Family Health Medical Centre in Craigieburn has seen the plaintiff on seven occasions after January 2017, with only one visit in relation to his back, on 14 January 2017, when painkillers were suggested. Other visits were not relevant to his back pain.
Dr Menon
188 Dr Menon from Ross Court Medical Complex in Niddrie advised the plaintiff’s solicitors in March 2018 that he had previously treated the plaintiff. He had not seen him for many years, and had no records, as they had not been kept for more than seven years. He noted the plaintiff had work-related lumbar back pain which was ongoing, and that he walked tentatively, and his back pain was slowly improving.
Austin Health
189 The plaintiff attended Austin Health in May 2017 for a C3-C6 cervical laminectomy and lateral mass fixation and a left C7‑T1 foraminotomy for treatment of cervical myelopathy and a left C8 radiculopathy. When seen post-surgery in July 2017, it was noted there had been significant improvement in his left arm and left leg weakness and numbness; however, he reported some ongoing numbness in his right leg and mild weakness in his left hand
190 It was noted the plaintiff still had some mild lower back pain and was using a four-wheeled walker. He was due to start physiotherapy, and a follow-up in three months was recommended.
Investigations
191 The following investigations have been undertaken:
·X-ray of the lumbar spine, October 2003, July 2011 and February 2017
·X-ray of cervical spine, July 2005, June 2009, January 2012, February 2017 and May 2017
·X-ray of the thoracic spine, August 2004 and May 2005
·CT scan of the lumbosacral spine, October 2003 and April 2012
·CT scan of the sacroiliac joints, 24 October 2003
·Bone scan, October 2003
·MRI scan of cervical spine, September 2009 and February 2017
·MRI scan of the lumbar spine, February 2013 and January 2017
·X-ray of the pelvis and bilateral hip, February 2014
·X-ray of the sacroiliac joints, February 2017
·EMG nerve conduction study, March 2017.
Medico-legal examiners
192 The plaintiff was seen by Mr Thomas Kossmann, orthopaedic surgeon, in March 2018.
193 The plaintiff then complained of ongoing lumbar back pain radiating anteriorly to both knees, worse with movement. He described restricted movement, but minimal intermittent neck pain of the neck. His neck was stiff, he could not use crutches and had to use a walker.
194 Mr Kossmann noted the plaintiff’s description of his work duties with the first defendant deposed to, following which he developed pain in his lumbar spine in around 2001, but he continued to work with increasing pain to October 2003.
195 Mr Kossmann essentially repeated details of the plaintiff’s work history and subsequent medical treatment deposed to. He then noted the type of duties the plaintiff performed whilst working for the second defendant.
196 The plaintiff told Mr Kossmann he suffered increasing pain in his back and went to see Dr Alazam in July 2011. He continued to work until December 2011, when his back became worse. He required further medication and stopped work on 23 December 2011.
197 Mr Kossmann also noted neck and arm pain started in 2009. There was then a referral to the Austin Neurosurgical Clinic. The plaintiff ultimately underwent neck surgery in 2017.
198 Mr Kossmann mentioned Dr Schachna’s diagnosis of AS in early 2017.
199 On examination, the plaintiff described ongoing lumbar pain. His neck was stiff and felt uncomfortable. He had to use a walker if he went out.
200 Mr Kossmann diagnosed:
· AS;
· lumbar spondylosis with bilateral L5 pars defect and mild L5-S1 spondylolisthesis and mild L3-4 and L4‑5 degenerative spinal canal stenosis;
· severe spinal canal narrowing and severe bilateral neuroforaminal canal narrowing, with both exiting C5 nerve roots contacting the disc at C4-5, cord signal abnormality at C4-5, extending to the C5-6, causing chronic myelomalacia and moderate to severe spinal canal narrowing and severe bilateral neuroforaminal canal narrowing, with both exiting C6 nerve roots contacting the disc at the C5-6 level and severe right neuroforaminal canal narrowing at the exiting right C4 nerve root contacting the C3-4 disc;
· clinical signs of right-sided carpal tunnel; and
· advancing osteoarthritis of the left hip.
201 Mr Kossmann thought the plaintiff suffered from degenerative changes affecting his cervical and lumbar spine and sacroiliac joints. He believed the plaintiff’s employment with either the first defendant and or the second defendant had been a contributing factor to the aggravation, acceleration, exacerbation and deterioration of his pre-existing degenerative changes in his neck and back, as well as sacroiliac joints.
202 Mr Kossmann noted the plaintiff still has pain and restriction of movement affecting his cervical and lumbar spine and both iliosacral joints. Further, he clinically suffers from a right Carpal Tunnel Syndrome as well as advancing osteoarthritis in the left hip. He thought the plaintiff would continue to suffer from neck and back pain which would require further treatment.
203 Mr Kossmann thought the prognosis in relation to the cervical spine and the lumbar spine was poor. He recommended further tests in relation to the carpal tunnel and the hip. He did not believe the plaintiff had a work capacity or that he would ever return to any employment.
Dr Mundae
204 Dr Mundae, consultant rheumatologist, examined the plaintiff in July 2018.
205 The plaintiff advised he had first developed back pain in 2001. He continued working until late 2003 when he took a redundancy package. He then worked in a range of jobs until he had to cease work in December 2011 because of increasing back pain.
206 Neck and arm pain started in 2009 and the plaintiff ultimately underwent neck surgery in 2017.
207 Dr Mundae noted Dr Schachna diagnosed AS in early 2017 and provided treatment in relation thereto,
208 The plaintiff complained to Dr Mundae of ongoing lower lumbar back pain radiating anteriorly to both knees. With respect to the cervical spine, he described intermittent pain and restricted movement.
209 On examination, there was markedly reduced lumbar movement and reduced cervical movement.
210 Dr Mundae thought the plaintiff presented with chronic lumbar back pain secondary to lumbar spondylosis which began in 2001, when working for the first defendant.
211 The plaintiff developed spinal myelopathy, requiring surgery in May 2017, and had residual stiffness and intermittent neck pain as a result thereof. He had features of pain sensitisation with widespread soft tissue tenderness.
212 Dr Mundae did not believe the plaintiff’s presentation was consistent with AS.
213 Dr Mundae agreed with Mr Kossmann, on balance, that the employment with either the first or the second defendant has been a contributing factor to the aggravation, acceleration, exacerbation and deterioration of pre-existing degenerative changes in the cervical and lumbar spines, as well as sacroiliac joints.
214 Dr Mundae agreed with Professor Bittar that the plaintiff’s employment had been a significant contributing factor to the aggravation of lumbar spondylosis, but would be unable to give a clear figure of the exact percentage, as Professor Bittar had done.
215 Dr Mundae thought the plaintiff had no capacity for work due to his lumbar spine spondylosis degenerative changes. Post-surgery, his neck did not appear to be the main concern. The plaintiff still had some ongoing neck pain, but it was of a low level, and Dr Mundae did not believe that contributed to the plaintiff’s incapacity for work and, in its own right, did not materially contribute thereto.
The Defendant’s medical evidence
Dr Barraclough
216 Dr Barraclough, rheumatologist, wrote to Dr Menon in October 2003, thanking him for referring the plaintiff.
217 Dr Barraclough noted, two and a half years ago, the plaintiff developed pain in the sacroiliac region that went after two days. Two months ago, there was a similar occurrence to the left of the midline, lasting two weeks and then settling. Three weeks ago, this recurrence began and it was in the same area to the right side of the midline and the plaintiff also had pain under his heel for a few days.
218 General examination was unremarkable and the plaintiff was slightly tender over the left sacroiliac joint, but his back movements were satisfactory. On x‑ray, there was a pars defect and some slight change in the sacroiliac joint. Dr Barraclough noted the problem was whether the symptoms were related to back strain or whether the plaintiff may have sacroiliitis.
219 As the CT scan only showed the top part of the sacroiliac joints, Dr Barraclough sought further investigations. In the meantime, he suggested the plaintiff stay on Vioxx and do gentle stretching exercise, but he would write back to him after the MRI scan. The results of that scan indicated the pars defect and also a bone island adjacent to the right sacroiliac joint.
220 Dr Barraclough advised the question of sacroiliitis was still unclear, and the radiologist with whom he went over the films was not prepared to say it was definitely there. There was a suggestion, given the Achilles tendinitis and bone scan findings, but unfortunately that was not enough change to be sure AS was present or not.
221 Dr Barraclough advised it was best to assume the problems were mechanic, to treat with intermittent anti-inflammatory medication and gentle exercise, as well as care with bending and lifting, but then to wait and see what happens. He noted the improvement in the symptoms and indicated he would like to see the plaintiff again in six months.
Dr Tunaley
222 Dr Tunaley wrote to the first defendant in December 2013. He advised the plaintiff had been seen by Mr Carey, a spinal specialist, who thought he had a problem that was permanent, even though the pain would subside. He stated, however, the plaintiff was at risk of re-injury if he returned to heavy work, and suggested a permanent change in duties.
Dr Gassin
223 Dr Gassin wrote to Professor Bittar in May 2013.
224 Dr Gassin advised he thought it difficult to ascertain the source of the plaintiff’s symptoms. Lower lumbar facet joints was a possibility. He prescribed prednisolone to decrease the degree of inflammation in the lower back, which may well lead to an improvement in symptoms and allow better localisation of his pain and thus a diagnosis.
Dr Schachna
225 Dr Schachna, rheumatologist, wrote to Dr Abeysirigunawardana in March 2017, thanking him for the referral of the plaintiff.
226 Dr Schachna advised he had obtained x-rays of the sacroiliac joints which demonstrated Grade 3 advanced changes on the right and Grade 2 definite changes on the left. The diagnosis of AS was established by x-ray finding. Dr Schachna suggested a course of management for that diagnosis. He also submitted an application to Medicare to initiate a TNF inhibitor, Humira, which was an important treatment in the inflammatory condition.
Medico-legal examiners
Mr McInnes
227 Mr Ian McInnes, general surgeon, saw the plaintiff for QBE in May 2012.
228 The plaintiff described heavy work with the first defendant, with the gradual onset of lower middle back pain in October 2003. He returned to light duties, but had difficulty coping. Over the next five years, the pain increased, but he was continuing to do modified duties at work.
229 Mr McInnes noted that since leaving the first defendant, the plaintiff had many lights jobs, but had not been able to do any permanent job because of back pain, and ceased work on 22 December 2011.
230 Mr McInnes thought the plaintiff had degenerative disease of the cervico and lumbosacral spine. It had been longstanding, but then aggravated by work with the first defendant in early October 2003, with heavy machines, which was conducive to aggravation of the lumbosacral spine.
231 Mr McInnes then thought the plaintiff would be fit to return to some form of modified duties but was unsuitable for pre-injury duties.
Mr Siu
232 Mr Keven Siu, neurosurgeon, examined the plaintiff in February 2014.
233 The history was of heavy work with the first defendant and pain in 2003, and the plaintiff was put on light duties, but there were not really any. He resigned from the job, but continued to see his general practitioner, and subsequent to his resignation, he embarked on various jobs, avoiding heavy labouring duties until 2011.
234 Mr Siu noted the 2009 plaintiff’s neck complaints.
235 On examination, the plaintiff walked around the consulting rooms very slowly. There was very limited lumbar movement and there was collapsing weakness, or it was very reluctant of the plaintiff, to raise his big toes.
236 After seven heavy years of work with the first defendant, the plaintiff reported lower back pain. Whilst he had an old pars defect in existence, before he had the symptoms, there was no easily identifiable lesion in the lumbar spine to explain his symptoms, and there was certainly no objective evidence to explain why he had such marked restriction in lumbar movement. There were no neurological signs.
237 In Mr Siu’s view, the plaintiff had symptoms he could not explain adequately through examination and objective evidence on MRI scan, therefore the prognosis was poor.
238 Mr Siu considered employment with the first defendant was no longer contributing to the plaintiff’s incapacity. It was nearly ten years since the beginning of symptoms and, therefore, the aggravation should have ceased. Furthermore, the plaintiff had not engaged in heavy labouring duties since 2004. He thought the plaintiff had no work capacity because of severe restriction in lumbar spine movement. He thought there were some aspects of his presentation which were slightly bordering on being functional. He could not see why the plaintiff needed elbow crutches to assist him with ambulating.
Mr Dooley
239 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in December 2016.
240 The plaintiff told Mr Dooley that in about 2001, he was aware of some lower back pain and it became more significant towards the end of 2003 due to a significant amount of bending. The plaintiff said he carried out lighter work and was then offered a redundancy towards the end of 2004. Subsequent to that, he worked for various companies carrying out mainly lighter work.
241 The plaintiff said that towards the end of 2010, he began working with the second defendant, which involved a lot of bending and stretching, and sometimes heavy lifting. He began to develop increasing lower back pain and, at times, had difficulty walking. By the end of 2011, he felt he could not continue in that work.
242 On examination, the plaintiff complained of constant ongoing lower back pain. Mr Dooley noted he walked with a bizarre gait while using crutches. There was no deformity of the spine, but there was some tenderness of the lower lumbar region.
243 Based on the plaintiff’s description of the type of work he was carrying out, Mr Dooley believed, during employment with both the first and second defendant, he aggravated his naturally occurring lower lumbar degenerative disc disease.
244 Accepting there had been soft-tissue injury, Mr Dooley thought the constancy and intensity of the plaintiff’s ongoing pain and his described disability were greater than one would expect to see for his organic condition. He believed the plaintiff had a psychological reaction to his situation and that significantly influenced ongoing symptoms. Radiologically, there was no evidence of major disc prolapse or nerve root entrapment. He thought the best thing was for the plaintiff to remain generally active and do low impact exercise, and further former treatment was not appropriate.
245 From an orthopaedic point of view, Mr Dooley would expect the plaintiff to note some ongoing intermittent lower back pain, but not expect a deterioration over and above the natural evolution of the underlying degenerative disc disease.
246 Mr Dooley described Mr Carey as a very experienced orthopaedic surgeon. Noting his views that the plaintiff may have to carry out light physical work, Mr Dooley thought, whether or not the plaintiff accepted that advice, he would have continued to note some ongoing intermittent lower back pain as a consequence of his underlying degenerative condition.
247 Noting the plaintiff is sixty-two, and doing the type of work he was doing in his late fifties, Mr Dooley thought it would not be unusual and expected for him to note some lower back pain separate of any aggravation of his underlying degenerative disc disease, and he would have struggled to continue in this form of employment, given his chronological age.
Associate Professor Brazenor
248 The plaintiff was examined by Professor Brazenor in March 2017.
249 Professor Brazenor then noted one of the most striking features of a very detailed history in the plaintiff’s affidavit was the absence of instances of identifiable injury during the thirteen years. The second striking feature was that the plaintiff’s alleged pain and disability had increased severely since he stopped work. Professor Brazenor noted the Claim Form was signed on 9 January 2012 for an injury in October 2003.
250 Professor Brazenor thoroughly summarised all the relevant medical evidence and investigation results.
251 The plaintiff told Professor Brazenor that having ceased work, he had become progressively worse, but he did not know why. He had a new symptom, namely his left leg had been dragging since the preceding December, and he had had several falls.
252 On examination, the plaintiff walked using a wheelchair trolley. Without it, he walked in a slow shuffling gait, reaching out to the walls on either side from time to time. He pointed out that his hand had now assumed a semi claw position.
253 Professor Brazenor could find no definite history of injury in the documentation. The striking feature of the plaintiff’s presentation was the extreme deterioration between stopping work and now, noting the apparent lack of serious concern of treaters at the end of 2011-2012, and Mr McInnes’ May 2012 examination, all supporting a very mild disability at that stage.
254 Professor Brazenor thought there were three possible explanations for the plaintiff’s alleged severe and progressive deterioration:
(i) he had an unyet diagnosed intrinsic disease, such as glioma of his brain, or a tumour within his spinal cord, or pressing on it from outside; or
(ii) he is suffering from myelopathy and damage to the cervical spinal cord by the age determined degenerative changes at C4-5 and C5-6, the former of which have been advanced between the scans of 3 September 2009 and February 2017, or
(iii) he was malingering.
255 In Professor Brazenor’s view, whatever the cause of the plaintiff’s transformation from a person who could walk around unaided and normally in May 2012 to the present, was not related to pre-Christmas 2011 employment.
256 Professor Brazenor concluded, on balance, the plaintiff does not have the pain and disability that he alleges, given the inconsistencies on examination, the radiological records and his clear attempts during physical examination to feign disability.
257 Professor Brazenor absolutely agreed with Mr Carey’s advice which he described as prudent. If the plaintiff had followed it, it probably would have made no difference to his present condition.
258 In Professor Brazenor’s view, a return to normal duties carried some risk of ongoing back injury, as Mr Carey pointed out; however, the plaintiff appeared to have seemed to escape further injury since seeing Mr Carey. His symptoms remained intermittent and without escalation until well after he ceased work.
259 Professor Brazenor provided a supplementary report in April 2018, having been given the reports of Mr Kossmann, Dr Schachna, Mr Drnda, Dr Sachev and more recent investigations.
260 Professor Brazenor’s views stood unaltered from his previous report, noting, again, the outstanding feature being the extreme nature of clinical deterioration. He thought that was not explained by AS of a relative low degree. The hard evidence here was Mr McInnes’ May 2012 report and also of Mr Siu’s February 2014 report.
261 Having read the further material, Professor Brazenor thought there had been some organic deterioration in the plaintiff’s clinical state since being examined by Mr Siu due to progressive cervical myelopathy due to progression of cervical spinal canal stenosis and cord progression. Those symptoms do not explain the extreme presentation in March 2017, which Professor Brazenor still regarded as largely functional.
262 Professor Brazenor noted Mr Drnda’s 2017 reports adequately document the fact there is nothing seriously wrong with the plaintiff’s lower back, or neck now that it has been satisfactorily and skilfully decompressed.
263 Professor Brazenor thought AS does not explain the plaintiff’s symptoms. There was no connection between that condition and the plaintiff’s employment with the second defendant. The condition is usually asymptomatic, based genetically, and it is nothing to do with spinal injury in any form unless, once the spine is ankylosed, like a leg of bamboo, trauma can cause this to snap at a single place. Otherwise, AS is asymptomatic, apart from some spinal stiffness. The AS makes no difference to the plaintiff’s symptoms, either real or hypothesised.
264 Professor Brazenor thought the plaintiff’s current condition and cervical operation owe nothing to his employment. His deterioration began, at the very earliest, more than two years after he stopped work, based on those earlier medico-legal examinations.
Mr Drnda
265 Mr Drnda, neurosurgeon, reported to the plaintiff’s solicitors following examination in March 2018, having been forwarded numerous medical reports and investigation results.
266 Mr Drnda noted the history of injury with the first defendant, with relatively mild lower back pain for the first time in 2001, which became worse in October 2003, leading to a redundancy package at the end of 2004.
267 The plaintiff worked at Abdcor, where he did some jobs that were somewhat lighter, but he was also exposed to some heavy lifting, repetitive bending and twisting. He worked there until early 2008. There was then the episode of neck pain in 2009. The plaintiff commenced work with the second defendant in August 2010. During the course of that job, he became aware of increasing back pain when lifting the scrap plastic.
268 Mr Drnda noted subsequent treatment.
269 On examination in March 2018, the plaintiff was complaining of severe lower back pain, and used a walker.
270 Mr Drnda had earlier supervised the plaintiff’s assessment of left ulnar neuropathy at the Austin Hospital in May 2017. He found the plaintiff to be profoundly myelopathic, and with left C8 radiculopathy. He thought the plaintiff had some lower back pain, which he considered to be related to AS. The plaintiff was offered neck surgery, which was undertaken in May 2017. Post operatively, he improved, his left arm regained strength and numbness was resolved, and his walking had significantly improved.
271 Mr Drnda diagnosed lumbar spondylosis, AS and chronic lower back pain with no clinical evidence of radiculopathy. The plaintiff had residual myelopathy from his cervical cord compression, which had been surgically treated and had improved.
272 Mr Drnda noted the plaintiff did strenuous physical work throughout his employment in Australia from 1999 onwards, noting development of lower grade back pain in 2001, worsening in 2003. Despite periods of not working and finally ceasing work at the end of 2011, his condition did not improve and continued to worsen. Mr Drnda noted that it was at odds with the natural history of the injury and degenerative change and more in keeping with a clinical picture of AS; however, it was difficult to state which one was more predominant.
273 The plaintiff had a compounding problem in the way of cervical spondylotic myelopathy, at least since 2009, which was treated surgically in May 2017.
274 Mr Drnda thought the prognosis was with significant guarding. The AS was usually a progressive disease, and he recommended the plaintiff should be seeing Dr Schachna, rheumatologist, who suggested immunotherapy.
275 Mr Drnda thought it quite likely the symptoms of degenerative lumbar spinal disease had subsided with time and that the AS had taken over. In his view, a substantial amount of the plaintiff’s lower back problem was related to AS. The compounding factor was the development of cervical myelopathy, which also caused increased tone in the muscles and decreased the plaintiff’s ability to walk.
276 On balance, Mr Drnda thought the work-related injury was relatively small and had likely ceased to exist and was overtaken by the AS and cervical spondylotic myelopathy.
Associate Professor Littlejohn
277 Mr Littlejohn, rheumatologist, examined the plaintiff in July 2018.
278 On examination, the plaintiff had a significant abnormality of gait and walked without stretched legs in a clumsy fashion.
279 The plaintiff told Mr Littlejohn of the onset of lower back pain in 2001, modified duties and physical therapy. During that time, he was working full time, and discontinued work at that employment in around 2004. He then did other part-time lighter jobs, which were all predicated by his lower back symptoms, and would have increased back pain if he did excessive work. While working for the second defendant twelve hours a day, four days a week, and then four days off, lower back pain became worse and he could not walk easily. He had neck pain developing in 2009.
280 The plaintiff said his back pain became worse while working at Labour Power, and he developed right leg pain and had to stop work in December 2011 because of those symptoms.
281 The plaintiff reported, in the various jobs between 2004 and 2010, they were generally lighter part-time work activities. Even so, his back was often aggravated if he did excessive activity. They were all factory-type jobs which involved lifting and moving objects, which tended to increase his symptoms.
282 From the clinical notes, Mr Littlejohn could not identify if the plaintiff reported any neck and or lower back symptoms between 2004 and July 2010. It was possible his duties during that time contributed to his current condition, but there was no specific event the plaintiff recalled or could be found in the notes.
283 Based on the enclosed radiology and medical evidence, Mr Littlejohn did not agree with Dr Schachna’s diagnosis of AS. He found the changes in the cervical and lumbar spine represented degenerative disc disease on the one hand but, in addition, the plaintiff had features of Diffuse Idiopathic Skeletal Hyperostosis (“DISH”), a common constitutional idiopathic degenerative condition in older people which causes anterior osteophytes in the cervical, thoracic and lumbar spines.
Overview
284 There is no dispute the plaintiff suffered an injury to his lumbar spine whilst working for the first defendant
285 The issue is whether there is any causal relationship between that injury and the plaintiff’s lumbar condition as at the date of hearing and whether any consequences thereof are “serious”.
286 Counsel for the defendant submitted this relationship was most difficult to establish “given the multitude of diagnoses and the breadth of presentation, trying to link the injury back now fourteen years is a very tough task”.[62]
[62]T69
287 In general terms, counsel for the plaintiff submitted the plaintiff has had a light work back since 2003 when “the damage was done” working with the first defendant, as Mr Carey then confirmed. That consequence, together with ongoing back pain and restrictions, is a serious one.[63]
[63]T103
288 Counsel for the defendant did not attack the plaintiff’s credit or his reliability. It was simply submitted that the plaintiff’s evidence was “unfortunately …, all over the shop and doesn’t provide [the Court] with the requisite certainty to make the finding that’s necessary”,[64] namely that there is an ongoing lumbar problem attributable to the first defendant’s employ. It is just not there.
[64]T81
289 Stressing that there had been no attack on the plaintiff’s credit, counsel for the plaintiff submitted that the plaintiff was an impressive witness who made concessions including the most significant and honest concession that he had not suffered an injury while working for the second defendant.[65]
[65]T91
290 It was submitted the plaintiff has kept working because he is stoical.[66] He is fit for only light work, but kept working as he had a family to support.[67]
[66]See Nettle JA in Dwyer v CalcoTimbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [4]
[67]T92
291 The principal submission on behalf of the defendant was that the plaintiff’s treaters all provide opinions which do not assist him.[68] It was submitted the Court would be most assisted in terms of causation by reference to the treating practitioners, and that is where the plaintiff “first comes unstuck”.[69]
[68]T80
[69]T69
292 Firstly, Dr Tunaley, who is the best person perhaps for the task, is uncertain as to the origin of the plaintiff’s pain, and now feels it may be due to constitutional changes, as he set out in his most recent report of February 2018.[70]
[70]T71
293 Mr Drnda, the treating neck surgeon, thought the plaintiff’s left leg numbness was due to myelopathy rather than radiculopathy.[71] Whilst the plaintiff says he thinks that problem was fixed with the surgery, Mr Drnda concedes there are ongoing problems.[72]
[71]Ruled out by the 2017 CT-guided injection
[72]T72
294 Mr Drnda thought the plaintiff’s problem is upper motor neuron lesion in his cervical cord which causes him difficulties walking.[73]
[73]T73
295 Dr Schachna, the treating rheumatologist, identified AS by x‑ray on the background that there was a strain in the plaintiff’s DNA of HLA-B27 which was detected, and established the diagnosis of AS. He then recommended the use of an inhibitor in accordance with that diagnosis.[74]
[74]T75
296 Counsel for the first defendant pointed out that this was not the first time AS was mentioned, with Dr Barraclough, in 2003, of the view that the plaintiff’s Achilles tendonitis at that time might be enough to consider a diagnosis of AS.[75]
[75]T76
297 Further, when given Dr Schachna’s report, Mr Drnda thought there was significant guarding, not because of a lumbar problem, but because of AS. He recommended the plaintiff should be seeing Dr Schachna. He considered it quite likely that the symptoms of degenerative lumbar spine disease have subsided with time, and that the AS has taken over.[76]
[76]T77
298 Further, treating surgeon, Mr Drnda thought it was impossible, in essence, to ascertain how much of the plaintiff’s pain is actually coming from the work-related condition and how much from the AS.[77] Prior to the identification of the AS diagnosis, he suggested any leg problems were related to the plaintiff’s neck, and now he says the AS has a contribution, rather than the back injury.[78]
[77]T77
[78]T78
299 It was submitted the view of the treating rheumatologist, Dr Schachna, should be preferred, and that whilst Mr Littlejohn thought that the diagnosis of AS was too quickly made, and did not agree with it, he did find changes in the cervical and lumbar spine representing degenerative disc disease on the one hand, but also features of Diffuse Idiopathic Skeletal Hyperostosis (DISH), a common constitutional idiopathic degenerative condition in older people that causes anterior osteophytes in the cervical, thoracic and lumbar spine. He further “muddles” the picture now with this other diagnosis of DISH.[79]
[79]T79
300 Whilst there is some support for a causal link from Professor Bittar, it was submitted he simply just has the wrong history of generally sedentary work of short duration – a history at odds with the plaintiff’s history.[80] Further, his 50/50 apportionment does not satisfy the requirements of the Court of Appeal in Peak.[81]
[80]T83
[81](Supra) at paragraph [2]
301 In any event, the plaintiff worked very hard for the second defendant for eighteen months, doing some pretty strenuous work.[82] It was submitted this is all far removed from Professor Bittar’s history of some sort of passive sedentary work, and that the plaintiff needed to find a new job every three to six months. Quite to the contrary. The plaintiff seemingly worked very well in the interim.[83]
[82]T83
[83]T84
302 Further, it was submitted there was the lack of significant medical treatment, with not much after the plaintiff saw Dr Barraclough and Mr Carey at the end of 2003 when they had advised him to come back if he had any problems and he had not done so. The plaintiff got on with his life, worked, and there is just no support from treating doctors during that time as to any ongoing significant problem.[84]
[84]T85
303 Counsel for the first defendant submitted, in this case, where one is going back fourteen years to establish causation, one needs to establish it properly on evidence, not just the plaintiff saying “Oh yeah, I had pain”.[85]
[85]T85
304 Further, when the plaintiff went to the Austin Hospital in 2009 for neck pain, he made no mention of any issues with his back. When he saw Dr Alazam in July 2011 for the first time, the plaintiff could not remember how or when he hurt his back at work and it is not until six months later that he attributed it back to the old injury. It was submitted there is no reason why the plaintiff would not have told Dr Alazam earlier.[86]
[86]T86
305 It was conceded there might have been a lumbar spine condition in 2003, although it might have been the onset of AS, but, at the worst case for the first defendant, it must be the condition, if it existed, did cease.[87]
[87]T87
306 It was submitted there is no valid basis to the notion that this is a simple low back condition that Mr Carey had identified as some future impediment to work. There has been a lot of water under the bridge since 2003. The plaintiff has gone on to significant work, and neck surgery for myelopathy. It cannot be said that he somehow gets over the line with respect to a back condition thirteen years later on the strength of Mr Carey’s view.[88]
[88]T87
307 Further, counsel for the first defendant was critical of Mr Kossmann’s view, adopted by Dr Mundae. It was submitted there was a lack of clarity in Mr Kossmann’s conclusion that employment with the first defendant and/or the second defendant is a cause of the plaintiff’s current incapacity.[89]
[89]T88
308 No medical practitioner expresses a view as to the consequences flowing from employment with the first defendant alone.[90]
[90]T89
309 It was also submitted the plaintiff had problems with disentangling organic and non-organically based features in his current presentation as described by Professor Brazenor and Mr Dooley,[91] and that on that basis, a Meadows v Lichmore Pty Ltd[92] argument could not be met. [93]
[91]T90
[92][2013] VSCA 201
[93]T90
310 Counsel for the plaintiff submitted Professor Bittar, initially a treater, gets the full accurate history and concluded employment with the first defendant has been a significant contributing factor to the plaintiff’s current lumbar condition.[94]
[94]T94
311 It was submitted causation was clearly made out by Professor Bittar and it is not to the point he made the 50/50 apportionment. That contribution is more than trivial and that it should be accepted the plaintiff’s present lumbar impairment results from the injury suffered when he worked for the first defendant.[95]
[95]T93 and T95; Altona Bus Lines & Anor v Lococo [2002] VSCA 159
312 Reliance was placed on Mr Carey’s view in late 2003 that the plaintiff then had a light work back. It was submitted the plaintiff has lost his main asset, which was his ability to work in his trade as a motor mechanic and do heavy unrestricted employment.[96]
[96]T96
313 Counsel for the plaintiff did not intend to address on unrelated conditions because the point relied upon was discrete; however, it was submitted the plaintiff’s current problem walking is beside the point, and, in any event, Professor Bittar did give some support for that problem being related to the plaintiff’s back condition.[97]
[97]T97
314 Dr Gassin was relied on insofar as he had a history from the plaintiff of ongoing back pain from the time of employment with the first defendant. Dr Gassin also thought the plaintiff was not fit for heavy unrestricted physical work.[98]
[98]T98; T100
315 Professor Bittar did consider AS, and still came to the conclusion that there was a significant attribution to employment with the first defendant.[99] In any event, he found ongoing lumbar pain and right leg pain, and stable symptoms.[100]
[99]T101
[100]T102
316 It was submitted “the damage was done” in 2003, and that was very significant, with a man who had lost his ability to work in his trade. He had ongoing back pain, sleep difficulties and needed medication, entitling him “in spades” to a pain and suffering certificate.[101]
[101]T104
317 In reply, counsel for the first defendant submitted it was not just as simple as accepting Mr Carey’s comments in late 2003. His view had to be supported by the facts, and it is not.[102] In any event, this is not a “passion” case of the grand pianist losing his fingers. The plaintiff is a man who has seemingly gone on and continued working.[103]
[102]T105
[103]T106
318 In response, counsel for the plaintiff relied on one of the cases referred to in Humphries & Anor v Poljak[104] where the Court found a loss of the ability to work as a carpenter was a serious consequence.[105]
[104][1992] 2 VR 129
[105]T106
Overview
319 Taking into account all the evidence, I am not satisfied that as a result of any lumbar injury suffered whilst in the first defendant’s employ in 2001 to 2003, the plaintiff presently has pain and suffering consequences that meet the statutory test of “serious”.
320 Issues of credit were not of particular relevance to my decision in this case. I accept that the plaintiff was a truthful, candid witness who did his best to give an accurate account of his injuries and the consequences thereof over a long period of time; however, what has transpired in terms of his actual work experience since 2003 and the lack of any significant back complaint until 2011, whilst employed by the second defendant, do not assist the causation argument.
321 Whilst Mr Carey thought the plaintiff had a light work back at the end of 2003, and Dr Tunaley was then pessimistic about the plaintiff’s work future,[106] the plaintiff has continued to do manual work, that was at times heavy, for most of the period until ceasing work in December 2011. This was not a case of sedentary jobs here and there, as Professor Bittar described.
[106]Paragraphs 122 and 222 of my Judgment
322 Whilst still working for the first defendant in 2004, although he was supposed to be on light duties, the plaintiff realistically did his normal job.[107]
[107]T12
323 The plaintiff worked at Abdcor for over two and a half years from May 2005. He worked at Iplex for eighteen months before starting work with the second defendant.
324 Mr Drnda noted, whilst the work at Abdcor was somewhat lighter, the plaintiff was also exposed to some heavy lifting, repetitive bending and twisting.
325 Dr Gassin thought the description of duties with the second defendant suggested the work was physically demanding.
326 Before starting work with the second defendant in 2010, there were no formal restrictions on the duties undertaken by the plaintiff in the various jobs or the need to take any time off work for flare ups of back pain.
327 I accept, as Professor Brazenor stated, that after leaving the first defendant, the plaintiff’s symptoms remained intermittent and without significant escalation until after he ceased work in late 2011.
328 The whole tenor of the case initially was that the work with the second defendant was heavy, forming the basis of the application against that employer until it was withdrawn in light of the plaintiff’s evidence he did not suffer injury in that job.
329 In cross-examination, the plaintiff agreed work with second defendant was heavy.[108] Withdrawing his application against the second defendant obviously does not change his evidence in this regard.
[108]T59
330 Clearly work with the second defendant was heavy, as were elements of earlier jobs.
331 Professor Bittar was asked to give a supplementary report in July 2016, having been provided with the plaintiff’s description of the relatively heavy duties with the second defendant he had deposed to. Professor Bittar then attributed 50 per cent of the plaintiff’s current lumbar condition to his work with the second defendant.
332 The plaintiff told Mr Dooley that his job with the second defendant involved a lot of bending and stretching and sometimes heavy lifting.
333 Mr Littlejohn noted the plaintiff worked with the second defendant twelve hours a day, four days on and four days off. He also described the plaintiff’s work between 2004 and 2010 as all factory-type jobs which involved lifting and moving objects, which tended to increase his symptoms.
334 Further, this is not a case where the plaintiff has made ongoing complaints or required treatment for his back after 2003 when he last saw Mr Carey and Dr Barraclough. The plaintiff did not take up the offer of either practitioner to see them again if he had ongoing problems.
335 Whilst attending a number of medical practises for various health complaints, including his neck from 2009 in particular, there seem to have only been two complaints of back pain after 2004 until July 2011. The plaintiff had then worked for the second defendant for eleven months. When he first saw Dr Alazam in July 2011, could not recall how or when he had injured his back at work. It was not until months later that the plaintiff told him about his injury with the first defendant many years earlier.
336 As counsel for the first defendant submitted, there is no support from the plaintiff’s treaters as to any causal link between the plaintiff’s duties with first defendant and any current back condition. Importantly, the plaintiff’s general practitioner, Dr Tunaley, who treated the plaintiff in 2003, clearly does not make any link.
337 Further, treating neck surgeon, Mr Drnda, thought any degenerative back condition had been taken over by myelopathy and the AS, and that its effects had ceased. Whilst it was difficult to state which was the more predominant, he thought the plaintiff’s worsening condition, having stopped work, was at odds with the natural history of the injury and degenerative change and more in keeping with a clinical picture of AS.[109] He considered it was quite likely symptoms of degenerative lumbar disease had subsided with time and that AS had taken over.
[109]Professor Brazenor had similar concerns about the plaintiff’s worsening condition after he ceased work - see paragraphs 255 and 266 of my Judgment; as early as February 2014, Mr Sui thought any work aggravation had ceased
338 Mr Schachna thought AS was responsible for the plaintiff’s complaints. This diagnosis was considered as early as 2003, when Dr Menon referred the plaintiff to rheumatologist, Dr Barraclough, who was unsure whether the plaintiff’s symptoms at that time were related to back strain or whether he may have sacroiliitis.[110]
[110]See paragraph 220 of my Judgment
339 Given he first saw the plaintiff ten years after his reported work-related back injury, Dr Gassin could neither confirm nor deny a relationship between work and his back condition. Dr Gassin was unsure whether there was a new injury with the second defendant or a recurrence or aggravation of the plaintiff’s previous condition.
340 Further, Dr Gassin thought the 2013 bone scan was consistent with bilateral sacroiliitis, which may well also contribute to the plaintiff’s symptoms.
341 Whilst counsel for the plaintiff submitted Professor Bittar had the full history with whatever material he had been provided, Professor Bittar’s description in his report of the plaintiff’s work after 2003 as being generally of a sedentary physical nature and working in different jobs for between three to six months is clearly inaccurate.
342 Further, based on a history of heavy work with the second defendant, Professor Bittar simply does a 50/50 apportionment between the work with the first and second defendants. This analysis does not assist in identifying whether the consequences of any injury with the first defendant related to lumbar injury are serious, nor is there any analysis of the plaintiff’s other unrelated conditions as the Court requires in Peak.
343 Dr Mundae simply adopted this opinion without any analysis or explanation whatsoever.
344 ln Peak Engineering & Anor v McKenzie,[111] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[111]Supra
345 In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[112]
[112]At 1
346 The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the unrelated injury; and
(b) when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[113]
[113]At 2
347 Further, the plaintiff has not established that as a result of any lumbar injury suffered whilst in the first defendant’s employ, that there are serious work consequences or otherwise. He simply deposed that he injured his back as a result of his work with the first defendant and/or second defendant and that the injuries sustained during the course of his employment with the first and/or second defendant continue to have a significant impact on his life.
348 Therefore, on the discrete point relied on by counsel for the plaintiff, this application fails.[114]
[114]See paragraph 316 of my Judgment
349 In wider terms, although I am not required to make a finding in this regard and was not addressed in relation thereto, I do not accept that there is any present lumbar impairment that meets the statutory test of “serious” in the face of the plaintiff’s other significant medical conditions relating to his cervical spine and also the AS which Mr Drnda thought had overtaken the work-related injury and, to a lesser extent, the DISH condition diagnosed by Mr Littlejohn.
350 Accordingly, the application is dismissed.
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