Relota v Securecorp (Vic) Pty Ltd
[2012] VCC 1753
•22 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-04668
| PERO RELOTA | Plaintiff |
| v | |
| SECURECORP (VIC) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 November 2012 | |
DATE OF JUDGMENT: | 22 November 2012 | |
CASE MAY BE CITED AS: | Relota v Securecorp (Vic) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1753 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury application – injury to lower spine – disentanglement – whether the consequences of physical injury meet the “very considerable” test
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Riordan | Zaparas Lawyers |
| For the Defendant | Mr D Seeman | Minter Ellison |
HIS HONOUR:
Preliminary
1 On 27 February 2009, in the course of his employment with the defendant, the plaintiff was using a mechanised ride-on scrubber/sweeper floor cleaning machine (“the machine”) in order to clean the floor of a large shopping centre. As he alighted from the machine, his foot slipped on the wet floor, and he twisted his body, including his lower back. He felt immediate pain in his lower back. Aside from a brief period, he has not worked since the incident. As a result, he claims a range of domestic and recreational activities are significantly affected.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment on 27 February 2009. The body function said to be lost or impaired is the lumbar spine.
3 The application is thus brought under subsection (a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
4 The plaintiff and his treating general practitioner, Dr Peter Pjesivac, were called to give evidence and be cross-examined. The plaintiff’s evidence was given through an interpreter. In addition, an affidavit of the plaintiff, various medical and radiological reports, and vocational material were tendered into evidence. I have read all the tendered material.
5 I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of his evidence and affidavit material which I have relied upon in coming to the conclusions referred to later in this judgment.
6 The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known, and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
7 The plaintiff was born in Bosnia in 1950 and is now sixty-two years of age. He is a married man with three adult daughters. He migrated to Australia in 1995.
8 He had limited schooling in Bosnia. Since arriving in Australia, he has been in more or less full-time employment, working on a construction site, as a machine operator and as a cleaner. He is unable to read or speak English. He commenced work with the defendant in 2003, as a cleaner, and his duties included cleaning the Knox City Shopping Centre and in particular, using the machine. He earned approximately $900.00 gross per week.
9 Prior to 27 February 2009, the plaintiff was in reasonable health and in particular, had no pain nor restriction in his lower spine. He was an active handyman, and had been involved in painting his house and doing basic home repairs. He socialised regularly within the Bosnian community, his church and enjoyed recreational soccer with friends.
The Injury and its Consequences
10 The plaintiff’s cleaning duties included the use of the machine to clean the floor in the common area of the Knox Shopping Centre. On 27 February 2009, he was using the machine, which carried a large tank of water and cleaning fluid. He alighted from the machine in order to move some tables, and his left foot slipped on the damp/wet floor. He twisted his left ankle and leg and felt pain in his lower back. He was able to finish working his shift that day. On the next day, a Saturday, he reported the matter to his supervisor and attended Dr Li Li at a medical clinic in Dandenong. She noted tenderness in the lower back and left hip upon examination[1] and prescribed anti-inflammatory medication and Panadeine Forte as analgesia. She provided the plaintiff with a certificate for five days off work.
[1]Plaintiff’s Court Book (“PCB”) 38
11 After that period, the plaintiff returned to work, still on medication. He went to see his current treating general practitioner, Dr Peter Pjesivac, on 10 March 2009. He complained of a two-week history of worsening lower back pain and left leg referred pain. Dr Pjesivac arranged a CT scan of the lumbosacral spine,[2] which showed mild multilevel disc degeneration, in particular at L4-5 and L5-S1. There was a small central disc protrusion at L5-S1 with what was described as very minor displacement of the left S1 nerve root.
[2]PCB 45
12 The plaintiff’s attempted return to work was short-lived and he was off work from March 2009, and has not returned to any form of work since.
13 Dr Pjesivac has continued to treat the plaintiff through to the present time, with essentially conservative management, by prescription of Panadeine Forte as a pain-relieving medication; Mobic, an anti-inflammatory, and Endep for depression. According to Dr Pjesivac’s reports,[3] the plaintiff has continued to complain of low-back pain, with referred pain into the left hip and leg. Dr Pjesivac thought the plaintiff had suffered an aggravation of pre-existing degenerative changes in the lumbar spine. He said the injury was related to the incident of February 2009. He received a further history of reduced sleep because of the lower back pain, and depression. He referred the plaintiff to a psychologist, from whom he received treatment for a period of approximately eighteen months. He has recently referred the plaintiff to a pain specialist, Dr de Neef. I was not provided with any report from that practitioner.
[3]PCB 35-37.3
14 Dr Pjesivac concluded:[4]
“Mr Relota continues to suffer and despite all our efforts (conservative treatments) he remains totally disabled for all work. In my opinion he will remain as such in the foreseeable future. In my opinion, I don’t think that he has any realistic capacity for any meaningful employment.
Mr Relota warrants an ongoing physiotherapy, psychotherapy and pain management in order to at least maintain his current level of function and to avoid any further deterioration of his condition.”
[4]PCB 37.4
15 Dr Pjesivac also gave evidence. He accepted that at his first examination of the plaintiff on 10 March 2009, he had a relatively normal range of movements. By June of that same year, Dr Pjesivac said that the plaintiff’s pain had improved and he thought he would be able to return to some light work in the future, within certain restrictions. He agreed that subsequent MRI scans had not shown any physical deterioration. He said that, of recent times, the plaintiff had displayed some clinical signs of functional overlay. He found that in nearly all patients with back injuries which persisted over a long term. He said that the extent of that functional overlay was not significant in the plaintiff’s case. He said those symptoms had not been apparent in 2010 and 2011. It was put to him that there had been a change in the plaintiff’s condition from approximately June 2009 which could be explained only on the basis of functional overlay, given there had been no deterioration in the radiological picture. Dr Pjesivac did not accept that proposition. He accepted that there was a contribution to the plaintiff’s clinical picture with a functional overlay, which he described as unconscious, of a mild to moderate degree. Dr Pjesivac’s opinion that the plaintiff was disabled from all work was not challenged in cross-examination.
16 Dr Pjesivac also referred the plaintiff for physiotherapy with Mr George Kokovas. He first treated the plaintiff in August 2009.[5] He received a history of ongoing pain to the lower back and left leg, which was aggravated by long sitting, long standing, walking, bending and lifting. Upon examination, there was a considerable reduction in active movement. Physiotherapy treatment included electrotherapy, massage, mobilisation and exercises. Physiotherapy has since ceased as funding was not provided by the insurer.
[5]PCB 43
17 On several occasions in 2009 the plaintiff attended the Bridge Street Clinic with a view to a structured return to work.[6] The reports of that clinic suggest a range of restrictions in any return to work, including a lifting capacity of less than 2 kilograms, the ability to sit or stand as desired, no repeated bending, pushing, pulling or twisting, exercise breaks for five minutes each hour and a graduated return. Apparently that proposed return to work program did not eventuate.
[6]Defendant’s Court Book (“DCB”) 52-53
18 In April 2009, Dr Pjesivac referred the plaintiff to Mr Armin Drnda, neurosurgeon, and he saw the plaintiff on two occasions. Mr Drnda examined the CT scan, which he said showed mild to moderate degenerative changes at the lower levels. He said there was no surgical treatment appropriate and the plaintiff should persist with conservative management. He said the plaintiff had suffered an aggravation of the underlying pre-existing spondylosis as a result of the workplace injury. He said the plaintiff was not fit for his usual work or any alternative duties. He expected there would be some improvement in the plaintiff’s condition and that eventually he may be capable of performing light duties, although, given his background, training, education and poor command of English, it was unlikely the plaintiff would be able to find any alternative employment. He suggested ongoing conservative treatment, physiotherapy, exercise and loss of weight. He said any employment would require restrictions to avoid heavy lifting, repetitive bending, twisting and work in prolonged awkward positions.
19 More recently, the plaintiff was referred by Dr Pjesivac to Mr Brian Barrett, orthopaedic surgeon, whom he saw on a number of occasions from November 2011 to January 2012.[7] He noted a history of low-back pain radiating into both buttocks, particularly on the left side, with pain going down the left leg to the left ankle, with some numbness. The pain was aggravated by prolonged standing, sitting, walking, and was eased with medication. Mr Barrett noted the plaintiff to be overweight and that he was not prepared to allow any spinal movement. He arranged an MRI scan of 29 December 2011[8] and said that the scan showed desiccated discs, increasing from L2 to L5, with some anterior disc bulges. He noted a modest posterior disc bulge at L5‑S1 with an annular tear. He said the plaintiff’s complaints, particularly in the lower spine, were out of keeping with the clinical and radiological findings. He described the plaintiff as “making the most of his symptoms and not allowing any movement throughout the lumbar spinal region”. He said there was no specific treatment available, although said the plaintiff should avoid any activity involving prolonged stooping, bending, lifting or pushing.
[7]PCB 44.3 – 44.6
[8]PCB 45A
20 At the present time, the plaintiff takes the following medication:
§ Panadeine Forte – three to four per day
§ Mobic – one per day
§ Endep – one per day.
21 He sees Dr Pjesivac every two to three weeks for prescription of this medication and for examination. He is not receiving nor seeking any specialist treatment. He recently had five sessions of physiotherapy.
22 He says that he has low-back pain all the time, worse on the left side. He says the pain runs down the front of his left leg to the ankle and he has numbness in the foot and toe. The pain is made worse if he bends or twists. He says sitting or standing for any extended period of time is difficult. He is unable to hold one position for lengthy periods. Upon the advice of his doctors, he walks regularly of up to fifteen to twenty minutes around the local streets. He has breaks and after a break sometimes walks longer. He is able to drive for fifteen to twenty minutes but because of the prolonged sitting, driving beyond that time causes increased pain. He has difficulties with sleep and says that he wakes during the night and is only able to sleep for about five hours.
23 He has difficulties with showering and putting on his socks. He is no longer able to do the house maintenance he previously enjoyed. He and his wife’s social life is restricted. He now no longer sees friends as regularly as before. He claims that his weight has increased from 85 to 105 kilograms. He does not attend his local church as often as he previously did. In evidence, he said that before the incident, his health was good and he enjoyed work.[9]
[9]Transcript (“T”) 22
24 In the course of cross-examination, video surveillance film of the plaintiff was shown. On 16 October 2012, the surveillance showed him walking in a shopping centre. He appeared to have a modest limp. He walked slowly and at one point got into his car in what appeared to be a deliberate and slow manner. He was shown in an Australia Post shop, leaning against a counter and supported by his arms.
25 In my view, the actions of the plaintiff depicted in the surveillance film were not inconsistent with the evidence in his affidavit, nor the histories to the various doctors. He was asked in cross-examination whether he could bend his back forward. He said he could, but that it would cause strong pain. He said he had never tried to do this. I did not consider this to be significantly inconsistent with what was shown on the surveillance.
26 In cross-examination, it was put to the plaintiff that he had effectively retired and had no desire to return to work. He denied this and said that he would undertake employment but for the pain in his back.
27 As stated, the plaintiff has not returned to any form of employment. There were various jobs suggested in the WorkStreams’ reports of 2010 and 2011.[10] However, those reports note a number of barriers facing the plaintiff in seeking employment. They include:
[10]DCB 29-49
· lack of transferrable skills, given the plaintiff had only worked in manual work;
· limited physical capacity as a result of his injury;
· complete inability to read or write English; and
· constant low-back pain.
The report of WorkStreams of 2011 concluded:
“WorkStreams have now provided twenty six weeks of job seeking assistance, however unfortunately due to stated barriers, Mr Relota was unable to secure work. It is the opinion of Work Streams that in this time Mr Relota has developed some of the skills to be an independent job seeker, however has been unable to participate fully in the program due to his stated capacity. Mr Relota has participated in job seeking and has been provided with the number of the Croatian Welfare Society which may be able to assist Mr Relota with ongoing job seeking once his capacity for employment has returned to a level that enables him to job seek.”[11]
[11]DCB 32
Expert Medical Opinion
28 The plaintiff was examined by Professor Richard Bittar, neurosurgeon, in October 2012. The plaintiff complained of persistent lower back pain, which radiated through his left buttock and into the left groin and thigh, and further, to the shin. Professor Bittar noted the plaintiff walked with an antalgic gait. There was a restricted range of movement. He said the MRI demonstrated desiccation of all of the lumbar intervertebral discs, with a very small prolapse at L5-S1 which was not causing neural compression. A further MRI scan of October 2012 showed the disc prolapse at L5-S1 contacting but not compressing the S1 nerve root. He, like other practitioners, found the plaintiff to have suffered an aggravation of lumbar spondylosis. He said the plaintiff’s prognosis was relatively poor and that it was likely he would continue to suffer significant pain and disability. Professor Bittar said the plaintiff had no capacity for work, which was permanent.
29 The plaintiff was examined by Mr Peter Dohrmann, neurosurgeon, in September 2012. To him, the plaintiff complained of constant lower back pain, present every day. He also complained of a weakness in the left leg which, on several occasions, had led to the left knee buckling. Upon examination, the plaintiff was described as having no active motion in his lumbar spine. Mr Dohrmann’s opinion was that the plaintiff had chronic low-back pain and referred left leg pain in association with a small L5-S1 disc protrusion. This, he said, was an aggravation of lumbar spondylosis. He said the clinical picture was out of proportion to the objective available evidence and that there were non-organic functional signs. He said the plaintiff was not fit for pre-injury duties and he appeared to have no intention of returning to the workforce. He said the prognosis was poor.
30 On behalf of the defendant, the plaintiff was examined by Mr Gerald Moran, orthopaedic surgeon, on a number of occasions from August 2010 to October 2012. He noted a disc protrusion at L5-S1 on radiology. He said the plaintiff had aggravated multilevel disc degeneration in his spine in the workplace incident and that, as a result, he was not fit to return to his pre-injury duties. He said the plaintiff had the capacity to undertake light duties providing they did not involve repeated bending and/or heavy lifting and in work where there was the flexibility to sit and stand.
Conclusions
31 There is no issue as between the various medical practitioners that in the subject workplace incident, the plaintiff suffered an aggravation of underlying, previously asymptomatic, degenerative changes in his lower spine. These were most prominent at L4-5 and in L5-S1, where there is a small disc protrusion.
32 In submissions, Mr Seeman, for the defendant, said I ought to have significant reservations about the credibility of the plaintiff. He said there were a range of inconsistencies in physical examination of the plaintiff by the various practitioners and differing versions of the plaintiff’s capacity to move and walk.[12] However, I found the plaintiff a relatively straightforward historian giving a fair account of the injury, and its effects upon him. There were some inconsistencies in his evidence, although to some extent these may be explained by his language difficulties, and problems with translation. There were certainly differences in physical examination from time to time between the practitioners, but I accept the explanation of Dr Pjesivac, that persons with back injuries often present in different ways, depending upon the manner in which the injury is affecting them on any particular day, and the relieving effect of medication.
[12]See paragraph 22 of the defendant’s Outline of Submissions
33 The primary submission of the defendant was that the plaintiff’s presentation was significantly affected by a functional overlay which had become a dominant presence in the plaintiff’s presentation. Mr Seeman submitted that there had been an improvement in the plaintiff’s condition up until June 2009, and that thereafter, the worsening of his symptoms was explained by the presence of a functional condition. There was nothing on the various scans to show any physical deterioration of the spine. I reject that submission. Like many injuries of this kind, the pain and restriction fluctuates. On some days, injured persons are able to move with some freedom, and on other days, when the pain and restriction of the injury is more prominent, their range of movement is significantly more restricted. There was some improvement in the plaintiff’s condition at an early time, but that is often the path of injuries of this sort.
34 All of the practitioners accept that the plaintiff suffered a physical injury in the workplace incident. Dr Pjesivac, Mr Dohrmann and Mr Barrett are of the view that there is a functional element involved in the plaintiff’s current presentation. None of the other practitioners, including Mr Drnda, Professor Bittar and Mr Moran, reported any findings of functional symptoms or overlay. Mr Dohrmann said that even with the clinical picture of pain and limitation being out of proportion to the evidence available, nonetheless, the plaintiff had suffered an aggravation of pre-existing lumbar spondylosis, and was not fit for pre-injury work. Mr Barrett noted significant disc desiccation throughout the lumbar spine, most particularly at L5-S1, where he said there was a moderate disc bulge affecting the S1 nerve root. He said the plaintiff’s complaints were consistent with the radiological picture, although the plaintiff was making the most of his symptoms.
35 I am most persuaded by the evidence of Dr Pjesivac, who has treated the plaintiff over a long period of time and who I found was an impressive witness. He said that the development of the plaintiff’s functional symptoms was only recent and caused by years of chronic pain. The contribution by the functional overlay to the plaintiff’s symptoms was mild to moderate.
36 While I accept that at the present time there is some functional element involved, I am satisfied from the bulk of the medical opinion, and in particular, the views of Dr Pjesivac, that the plaintiff’s current pain and restriction is very significantly contributed to by an organic injury, being an aggravation of degenerative disease at the two lower lumbar levels. I am satisfied that that is principally responsible for the production of the chronic pain of which the plaintiff complains, and the restriction in the various activities referred to in his affidavit. That pain has required considerable conservative treatment over the years and referral to a number of specialists. At the present time, he takes a large amount of pain-relieving and anti-inflammatory medication.
37 I further accept from the various medical opinions that the plaintiff’s work capacity has been affected. I accept he has no capacity for his pre-injury duties. Again, I accept the opinion of Dr Pjesivac that the plaintiff, at the current time, has no capacity for any work duties. That is particularly so when one considers that the plaintiff has no written or spoken English, and is sixty-two years of age. In accordance with the definition of “suitable employment” contained in s5 of the Act, those matters must be taken into account in assessing work capacity.
38 In these circumstances, I am satisfied that the plaintiff, on the basis of organic injury, has satisfied his onus in proving that he has suffered greater than a forty per cent loss of earning capacity. It follows the plaintiff also succeeds in respect of pain and suffering.[13]
[13]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraphs [63]-[64]
39 I shall make consequent orders.
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