Rezaki v Labelmakers Pty Ltd
[2014] VCC 918
•24 June 2014
| 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-13-02260
| ALI REZAKI | Plaintiff |
| v | |
| LABELMAKERS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 June 2014 | |
DATE OF JUDGMENT: | 24 June 2014 | |
CASE MAY BE CITED AS: | Rezaki v Labelmakers Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 918 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPESATION
Catchwords: Damages – serious injury – injury to the lumbar spine - pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries v Poljak (1992) 2VR 129; Dwyer v Calco Timbers Pty Ltd No 2 (2008) VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Ruddle | Taylor & Preston Lawyers |
| For the Defendant | M S Manova | IDP Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the first defendant from January 2002 until 27 March 2008 (“the said period”) and in particular on 6 October 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 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” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lower back.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 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”.
8 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.
9 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
11 The plaintiff relied upon two affidavits and gave viva voce evidence. 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
12 The plaintiff is presently aged thirty-seven, having been born in June 1977. He presently lives with his partner and her two children.
13 Having completed Year 12, the plaintiff then did a four-year apprenticeship as a printer. He has a Certificate IV in Operations Management and a Diploma in Logistics and Supply Management.
14 In about 2002, the plaintiff commenced employment with the first defendant on a permanent full-time basis as a printer. His duties involved operating and setting up printing machinery, running a variety of pressure sensitive and film packaging printing machinery, moving cylinders weighing up to 10 kilograms and other heavy lifting. The work was very arduous and strenuous in nature (“the duties).
15 On or about 16 July 2004, the plaintiff experienced low back pain packing boxes. He made a WorkCover claim and had physiotherapy and acupuncture treatment and alleviated the pain with medication. He took some time off work but continued normal duties as he did not want to give up his job and he did not think the condition would get worse.
16 After that injury, the plaintiff approached management as he was worried about his health and advised he wanted to move away from printing and into a sales and service role. Had a chance arrived and the pay was good he intended to take on such a non physical role.[3]
[3]Transcript (“T”)10
17 On or about the said date, when preparing a printing machine, the plaintiff injured his low back, experiencing pain like an electric shock (“the incident”). The next day, he awoke in excruciating pain and had a sharp pain in his lower back. He reported the injury and subsequently went to his general practitioner who put him off work for two months and referred him to a specialist.
18 After about three to four months, the plaintiff returned to work on modified duties working as a support for printing machinists.
19 On or about 9 April 2007, the plaintiff undertook a graduated return to work program, commencing with light sheltered duties as a workflow coordinator. His job involved a lot of work in front of the computer, performing administrative tasks. He did not find the new position very fulfilling.
20 The plaintiff explained this job involved liaising with customer service and making sure the production process could handle job orders.[4]
[4]T12
21 By letter dated 27 March 2008, the plaintiff was advised by the first defendant that he was to be made redundant. He then took a number of significant trips overseas, until returning in late 2008, as it was cheaper for him to stay with family overseas rather than work out how to pay his mortgage. That was the major reason why he travelled. There was no room for him to stay at his parents’ house.[5]
[5]T14
22 The plaintiff moved in with his parents in late 2008 when there was enough room for him to stay.[6]
[6]T19
23 At the time he was made redundant, the plaintiff was living in a property in Essendon which he owned. He agreed for a number of years he claimed taxation deductions on the basis this was a rental property and that in this regard, he was lying to the Taxation Office.[7]
[7]T16
24 Dr Cukierman initially treated the plaintiff until he retired, and Dr Dunne at the same practice took over the plaintiff’s care. They have provided treatment for the plaintiff’s WorkCover injury, including medication and specialist referral and management.
25 Dr Cukierman organised an MRI scan of the plaintiff’s lumbar spine in February 2007 and the following month, referred him to Mr Graeme Brazenor, neurosurgeon, for treatment of his injury.
26 When he saw Mr Brazenor, the plaintiff did not know what to think. He was a bit offended, as he went to see Mr Brazenor for advice and was told not to come back until he could prove he had been walking for up to half an hour a day.[8]
[8]T37
27 Dr Cukierman referred the plaintiff for physiotherapy with Mr Metcalfe in September 2007and counselling with psychologist, Mr Oliver, in 2008. The following year, the plaintiff commenced acupuncture treatment.
28 The plaintiff stopped physiotherapy in 2011 because it gave him limited relief and was not helping.[9]
[9]T40
29 In about 2009, the plaintiff started seeing a pain management specialist, Dr Lovell, for treatment of his work injury. Dr Lovell organised an MRI scan of the plaintiff’s lumbar spine in October 2009 and in about March 2011, the plaintiff underwent a joint injection.
30 When he swore his first affidavit in December 2012, the plaintiff obtained some pain relief from Tramal, Endone, valium and Nurofen.
31 The plaintiff then suffered constant, though varied, lower back pain which occasionally radiated to his groin. He tended to feel increased pain if he coughed or sneezed suddenly. His pain was worse in the morning and generally exacerbated, even when trying to do light duties.
32 The plaintiff was then frustrated by his injuries and incapacitated. He worked hard to try and stay with the first defendant with whom he had worked for about five years. He enjoyed the job as a printer and having to stop work as a result of his injuries caused him upset and disruption, as he was previously quite healthy and active.
33 The quality of the plaintiff’s relationship with his previous long term girlfriend and family had suffered enormously as a result of the injury and he had become irritable, moody, easily agitated, snappy and short tempered.
34 As the plaintiff was keen to return to work, he was very disheartened when he was made redundant. He then felt his employment history had severely limited his ability to branch out into other types of employment. He was very disappointed because as a result of his injuries, he was no longer able to undertake complete employment duties and that often left him feeling useless and upset.
35 The plaintiff often felt angry, depressed, stressed and anxious and was constantly frustrated and worried about the future and had suffered a loss of self esteem. He was angry and bitter at the way he had been treated by the first defendant and broke down regularly and experienced severe emotional lows and often felt hopeless and worthless.
36 At that time, the plaintiff’s pain from his work injury occasionally disrupted his sleep. He took valium to help him fall asleep but still experienced interrupted sleeping patterns.
37 The plaintiff had very significant problems with self care and personal hygiene and he felt useless and ashamed it was so challenging to perform such menial tasks of dressing, shaving and bathing.
38 As a result of his injury, the plaintiff generally experienced increased pain and difficulty with intrinsic physical activity such as carrying, lifting, prolonged postures and extended walking. Sometimes he pushed himself to do more activities but even when fortified by medication, he tended to be left in much increased pain afterwards.
39 The plaintiff’s injury had also very significantly affected his mobility, endurance and reliability. He could not drive for more than an hour without having to get out of the car and stretch.
40 The plaintiff’s work injury had also adversely affected and interfered with his normal sexual function. He suffered from erectile dysfunction and inefficiency due to pain and discomfort. His libido had been significantly reduced.
41 Prior to injury, the plaintiff used to pride himself on performing physical aspects of household duties such as gardening, lawn mowing, basic home and car maintenance and jobs around the house. Since his injury, he had moved back to live with his parents so they could help him with household duties. He tried to assist as best he could and was upset about being dependent on them.
42 As a result of his work injury, the plaintiff’s ability to participate in individual or group activities, sports and hobbies had been adversely affected. He tended to avoid being involved with vigorous or repeated physical activities such as running, jogging or exercising.
43 Prior to his injury, the plaintiff went hiking, cycling and boxing and was very keen on woodwork; however, he was no longer able to bend his back or exert force. His ability to spend quality time with his family and friends had been affected and his injury had had a very significant impact on his social life, losing confidence and self esteem and withdrawing from society. He used to take pleasure in going to restaurants, the pictures, concerts and functions. He then tried to avoid leaving the house as he was constantly distracted by his lower back pain and felt anxious and self-conscious when in public and when he went out, he felt unable to enjoy himself. He had lost contact with many friends and felt socially isolated.
44 The loss of ability to work and the very significant diminishment of the plaintiff’s physical capabilities and endurance had struck at the core of his identity and sense of self worth but he tried to stay positive.
45 Prior to injury, the plaintiff was generally earning about $1,400 a week working about 37.5 hours plus overtime. After injury, he was transferred to another position where he worked in a modified sheltered environment where he was not required to do his pre injury duties.
46 Having been made redundant in March 2008, the plaintiff remained unemployed for the next two years and was frustrated he could no longer perform even modified sheltered employment.
47 In or about January 2010, the plaintiff commenced modified sheltered employment with Gulmen Engineering where he had to retrain to commence a sales and marketing role. He felt fortunate to have this job as he feared what could happen if he lost it.
48 In cross-examination, the plaintiff said that he went to Hong Kong for work in 2009, and then said he went there for a holiday. His uncle, who ran Gulmen Engineering, sent him there to have a look at whether he would be interested in working for his company. The plaintiff was not paid for that work.[10]
[10]T20
49 The plaintiff also spent some time at Gulmen Engineering familiarising himself with it. It was not work or unpaid work.[11] Possibly he attended the premises more than once a week in 2009.[12]
[11]T21
[12]T22
50 During that time, the plaintiff was receiving weekly payments. He agreed he signed a declaration on a WorkCover Certificate in September 2009 that he was not doing any paid employment, self-employment or voluntary employment.[13] He did not class what he was doing at Gulmen Engineering as voluntary work.[14]
[13]T25
[14]T27
51 The plaintiff agreed that on 29 September 2009, he spent a full day at his father’s business, Regal Pty Ltd, in Campbellfield. He attended there from time to time and was not hiding that fact, although it was not mentioned in his affidavits.[15]
[15]T29
52 The plaintiff explained that on that date, he accompanied one of his father’s staff to a business to look at lacework.[16] He was just trying to keep a little bit active and involved in what was going on at his father’s business.[17]
[16]T30
[17]T30
53 The plaintiff never worked for his uncle or for his father or anyone else between the time he was made redundant and when he started work with Gulmen Engineering in early 2010.[18]
[18]T72
54 The plaintiff was initially employed as a marketing assistant in the printing industry with Gulmen Engineering, with that role gradually expanding to including training operators to use printing machines and sales activities. Initially, the plaintiff was employed for 24 hours per week and then the role became full time, as it continues today.[19]
[19]T31
55 The plaintiff’s work tasks involved activities including but not limited to sitting in front of a computer for 8 hours a day. He found this activity generally exacerbated his lower back pain. He was also required to travel for sales and found during long flights and travel, his pain was exacerbated.
56 The plaintiff is required to drive across suburban Melbourne to see clients. Machinery which he transports in the work vehicle is loaded and unloaded by forklift[20].
[20]T32
57 Although he was very keen to return to work as a printer and had intended to work to sixty five at least, the plaintiff deposed in 2012 that he currently had no capacity to do his pre-injury trade and was further concerned about his work injury affecting his career or work opportunities currently and in the future.
58 The plaintiff swore a further affidavit on 12 June 2014.
59 The plaintiff still takes valium, Celebrex, Panadol and Nurofen, and remains under Dr Dunne’s care.
60 The plaintiff continues in his role as a technical sales assistant at Gulmen Engineering. He gives clients advice about what machinery they need and sometimes attends at their sites and other times contacts them over the phone. When he has to drive long distances, it causes extra back pain. He has to get up and stretch during the day when using a computer. Low back pain also affects his concentration.
61 In cross-examination, the plaintiff described how once every two to three weeks, he flies interstate to visit clients.[21]
[21]T33
62 Since the start of 2014, the plaintiff has taken about nine days off work due to his low back injury. A couple of times, he has taken more than one day off at a time.[22] When he has difficulty getting out of bed on those days, he rings up the Gulmen Engineering and tells them he is unable to come in; however, his superior gets upset and asks him when he is going to sort the matter out. When the plaintiff has days off he rests and takes medication.
[22]T35
63 The plaintiff’s uncle is aware of his back injury and he gets upset with the plaintiff when he needs time off for back problems. His uncle does not require the plaintiff to provide a certificate but whether or not the plaintiff gave him one, his uncle would still be upset.[23]
[23]T34
64 The plaintiff’s uncle has a business to run and just wants the plaintiff to move on and progress and not be in his present situation.[24]
[24]T71
65 The plaintiff has recently seen a kinesiologist for his back. He does not see his general practitioner when he has flare ups, as Dr Dunne only works on Wednesdays.[25]
[25]T34
66 The plaintiff continues to have constant pain in the low back with numbness in the left leg. He is unable to work as a printer and cannot lift any heavy weights. Forced or long postures are difficult and if he tries to do anything physical, the pain worsens.
67 There had been improvement in the plaintiff’s pain since he was really incapacitated in 2006. He has never been pain free since that time. The level of pain varies and medication mimises it.[26] Sometimes his pain stops him from work or daily activities. He has a numb feeling in his left leg on some occasions but he cannot really say whether pain in either leg is related to his back.[27]
[26]T35
[27]T36
68 The plaintiff’s pain is mainly in his back and on occasion, in his groin.[28] He has seen all treaters to whom he has been referred.[29]
[28]T37
[29]T38
69 On occasions, the plaintiff still has a very stiff back and at other times he has better movement. There is never a time when he can move as an uninjured person. Problems stooping and squatting are caused by both pain and stiffness.
70 More than 50 per cent of the time the plaintiff would have lost two-thirds of his normal back movement but there were times when he could move more freely “to save [his] own life” – he could bend over if he had to.[30]
[30]T59
71 The plaintiff can dress himself but sometimes takes a little bit longer than normal.[31] When he swore his first affidavit, his difficulties in this regard and in relation to other tasks were greater.
[31]T49
72 Whilst working with the first defendant, the plaintiff was earning about $78,000, whereas he now earns only $49,000.
73 The plaintiff confirmed his injury has affected his social and sporting activities and he does not go out as much. When he does, he tries to mask the pain and depression from his friends.
74 Even though the plaintiff still suffers from depression and anxiety, it has been relieved a little as he is now living with his girlfriend with whom he has been living for about a year and that has helped him emotionally. She has two children whom he takes to sporting activities and maybe shopping.[32]
[32]T51
75 The plaintiff’s social activities have improved a little bit lately. He and his girlfriend have regular visitors to their house as they attend the children’s activities.[33]
[33]T52
76 The plaintiff goes out at night from time to time and goes to bars and parties. He occasionally goes to family get togethers but sometimes misses out on them. The plaintiff has difficulty sitting at the pictures.[34]
[34]T71
77 The plaintiff tries to do small chores around the house, mowing the lawn occasionally but very slowly.
78 The plaintiff is very limited in what he can do and he does not really engage in sports.
79 The plaintiff still cannot go hiking, cycling or boxing and does not participate in individual or group activities, sports or hobbies. He has difficulties in bending his back or exerting force on it.
80 The plaintiff agreed that he rode his bike to work twice in 2008 when being treated by Mr Metcalfe.[35] He suggested that was the last time he had ridden until a history to Dr Entwisle in 2010 was put to him that he used his bike as a mode of transport having lost his licence due to demerit points.
[35]T41
81 The plaintiff explained he had ridden his bike and still did on occasions if he has to go to the shop. He used to go on lengthy rides so he now does not cycle compared to the way he used to like cycling.[36]
[36]T44
82 The plaintiff did boxing as part of his gym circuit. Prior to injury, he went to the gym two to four times per week when working rotating shifts. He now has a more significant work commitment in daytime hours. He went swimming after his injury.[37]
[37]T54
83 The plaintiff usually takes one or two valium in the evenings when he needs them to make him relax. In an average week, he takes them once a day to once every two days. There has been a month when he did not take valium and he tries not to take it as he has been warned it is addictive.[38]
[38]T45
84 The plaintiff thought he had attended his general practitioner this year, more recently than in September 2013 as the notes indicated.[39] He recently telephoned his doctor to obtain a prescription for Celebrex. The plaintiff does not always seek reimbursement from WorkCover for chemist expenses. He last sought reimbursement in January this year.[40]
[39]T46
[40]T48
85 In examination-in-chief, the plaintiff added that he had DJ’d recently on a few occasions for a friend who owns the Royal Saxon Hotel.[41] The plaintiff carries 100 CD’s in a small backpack. He DJ’d from September until about a month and a half ago from weekly to fortnightly for an hour to a maximum of two hours. He was paid in meals or cash in hand.[42]
[41]T9
[42]T57
86 The plaintiff recently decided not to proceed with an MRI scan that had been requested because his general practitioner had told him treatment options had run out and the reality was no one wanted to operate.[43] The plaintiff initially wanted this investigation to see if there was proof of any improvement or not. He denied he did not go ahead with this investigation because if improvement was shown it would prejudice his case.[44]
[43]T39
[44]T39
Surveillance
87 The plaintiff confirmed there had been some improvement in various matters he described in his 2012 affidavit. He has discomfort getting and in and out of the car and this is probably worse in the morning.[45]
[45]T58
88 There was 7 minutes of surveillance taken on 29 September 2009. The plaintiff agreed he attended his father’s factory throughout that day.
89 The plaintiff agreed he was shown bending over to fill his father’s ute with petrol. He was then shown squatting. He explained that position was more confortable because he was bending at the knees, not his back.[46] He was later shown squatting at his father’s business.
[46]T61
90 The plaintiff agreed there was nowhere in the film where he was shown to be in any pain or disability.
91 Film was also shown of about an hour’s duration of the plaintiff attending his nephew’s party at Kids City in Keilor East on 19 January 2014.[47]
[47]See Appendix “A” to these Reasons for Judgment
92 The plaintiff thought he looked like he was walking around fine. He could not recall if it was a good or bad day. He was used to having some sort of pain every day, whether it was milder than other days.[48]
[48]T65
93 The plaintiff agreed he was shown climbing up on a slide and then getting up straight away smiling. He later explained his nephew was up the top of the slide and scared to come down and the plaintiff went down the slide on his back to encourage his nephew to slide down.[49]
[49]T69
94 The plaintiff agreed he was shown parking his car outside his house and walking along the street carrying bags of grocery shopping. He was bending his legs taking the shopping out of the car as a precaution not to aggravate his back.[50]
[50]T68
95 The plaintiff agreed he was shown at times on the film bending his back and that there does not appear to be any footage showing him grimacing or holding his back. He agreed he looked like a perfectly healthy person.[51]
[51]T69
96 In re-examination, the plaintiff agreed he sometimes put his backside in the car first when getting in. He did so to minimise discomfort just as a precautionary measure.[52] Sometimes he rotated his legs around to get out of the car.
[52]T70
97 The defendants admitted there was surveillance over a number of days in September 2009 (one day on which the plaintiff’s brother was filmed) and more recently in January 2014, when there was an hour of film taken. A couple of minutes of film was taken following surveillance over three days in June 2014.[53]
[53]See Appendix “A” to these Reasons for Judgment
Investigations
98 Dr Cukierman organised an MRI scan of the plaintiff’s lumbar spine in February 2007.
99 It was reported there was bilateral subarticular recess stenosis at L4-5 with possible bilateral L5 compromise predominantly due to disc disease. There were less marked changes at the L5-S1 level without definite neural compromise.
100 Dr Lovell organised an MRI scan of the plaintiff’s lumbosacral spine on 14 October 2009.
101 It was reported there was desiccation of the lower two intervertebral discs with a moderate sized central protrusion at L4-5 and a smaller protrusion at L5-S1 with a radial fissure at both levels, there was hypertrophy of the posterior bony elements resulting in mild canal narrowing.
Treaters
102 The plaintiff attended Dr Visser at North West Physio Group from October 2005 until May 2006, when he was discharged to manage his strength and the stretching program independently.
103 In his report of October 2010, Dr Cukierman advised that the plaintiff suffered work-related back pain from a disc prolapse at L4-5 and L5-S1. He noted the last MRI scan at the end of 2010 revealed changes of an annular tear causing discogenic pain. He noted the plaintiff suffered significant levels of pain and he was permanently partially incapacitated to the extent he cannot lift significant weight or do work requiring repeated bending.
104 In his April 2014 report, Dr Cukierman advised that he had retired from practice in 2011 and was not in a position to comment on the plaintiff’s current physical or mental capacity. Dr Cukierman noted the plaintiff had significant mental and emotional difficulties relating to his chronic pain and incapacity and in October 2012, he referred him to a psychologist.
105 Mr Brazenor, neurosurgeon, first saw the plaintiff in March 2007.
106 On examination, Mr Brazenor noted the plaintiff was a fit looking man, apparently in no pain, but he did have restricted low back movement and very mildly restricted straight leg raising.
107 Mr Brazenor did not recommend surgery in the first instance, but instead gave the plaintiff a protracted tutorial on what was good and bad for his low back in the hope of keeping him out of the operating theatre.
108 Mr Brazenor did not see how the plaintiff could continue to work hands on as a printer, certifying that as a result of his back injury the plaintiff would never return to a bending and lifting job while certifying him fit for any full time job which did not involve such activities and where he could wear a back brace at all times.
109 On re-examination in June 2008, the plaintiff had been retrenched after having been given an office job.
110 The plaintiff told Mr Brazenor that he was in such pain on some days he could not even walk. The plaintiff was evasive when asked by Mr Brazenor whether he was walking and also about the site of his pain.
111 On examination, Mr Brazenor noted there really was not much to find. The plaintiff had a normal lumbar spinal curve with no spasm. There was no wasting in any muscle group in the lower limbs. There was no evidence of sciatica.
112 Mr Brazenor noted an MRI scan had been performed on 2 June 2008 which detailed the appearance on magnetic resonance scan had actually improved.
113 Mr Brazenor put it to the plaintiff that there was a problem with credibility in his current presentation, insofar as he was alleging severe pain and disability on one hand and on the other hand “we” could find little on clinical examination and moreover, the MRI scan appearance had actually improved.
114 Mr Brazenor confirmed that the plaintiff must go on two half-hour walks every day.
115 On balance, Mr Brazenor thought the plaintiff had suffered injuries to his L4-5 and L5-S1 discs in the course of his employment as a printer. Judging from physical examination and MRI scans, conservative measures resulted in significant healing in the plaintiff’s back and it seemed to Mr Brazenor the plaintiff had represented with the allegations of pain and disability only after he had been retrenched from the office job for which he had been tried.
116 So far as Mr Brazenor could tell from objective means, the plaintiff was fit for full time work but not any job involving repeated bending at the waist or the accessing of levels below his waist.
117 The plaintiff was referred to Dr Lovell in April 2009.
118 Dr Lovell noted the 2008 MRI scan which demonstrated disc change at L4-5 and L5-S1 with some impingement on the left L5 nerve root at L4-5 and in the lateral recess. Some mild facet joint degenerative changes were noted.
119 Dr Lovell thought, clinically, the plaintiff certainly had lumbar segmental referred pain which could be disc, facet joint or even sacroiliac joint. He thought it certainly possible the plaintiff had a slightly higher than average chance in his age group to have facet joint pain, given his previous occupation and pain pattern.
120 In those circumstances, Dr Lovell thought it would be justifiable to go ahead and do some medial branch blocks to see if the plaintiff had facet joint pain and he was seeking funding in that regard.
121 The plaintiff was reviewed in January 2010.
122 Dr Lovell noted his MRI scan showed mild desiccation of the two lower limbs with a high density zone in the posterior parts of this, at both the L4-5 and L5-S1 discs which was consistent with annular tear. He noted those images by themselves did not make a diagnosis but with all the information he could say it was consistent with discogenic pain.
123 Dr Lovell was not keen on surgery and the plaintiff accepted himself that it was a matter of pain management, including the need for some psychological help.
124 Dr Lovell concluded there was nothing else that the plaintiff could be offered given there was no proven treatment for discogenic pain. He thought the plaintiff’s prognosis was rather poor in terms of any significant resolution of his pain problem and the prospects of him returning to any significant work were very low indeed. He also noted the plaintiff suffered from some degree of consequent disability including impairment of sexual function.
Medico-legal evidence
125 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in September 2012. He had available the MRI scans of February 2007 and October 2009.
126 On examination, there was some restricted lumbar movement and straight leg raising bilaterally was to 70 degrees.
127 Mr O’Brien thought that physical signs were now subjective, with restriction of lumbar movement but no evidence of nerve root compromise. He noted investigations confirmed degenerative disc change in the lower two lumbar motion segments, though that was not totally diagnostic. One would thus conclude that the plaintiff now demonstrated chronic non specific low back pain, there being no evidence of nerve root compromise or radiculopathy.
128 Mr O’Brien regarded the clinical condition as stable. He noted the plaintiff now reported continuing chronic back pain which he was basically able to self manage. He suggested the prognosis was rather poor and he considered the plaintiff would in fact experience ongoing back pain. He thought the plaintiff had a mild disability associated with his chronic pain.
129 Mr O’Brien was not sure the plaintiff was physically capable of heavy physical duties and thus he would not be capable of a return to his pre injury occupation. He noted, nevertheless, from the physical perspective the plaintiff was capable of modified duties which he was currently doing and he expected that to continue. However, the plaintiff would never return to employment involving unrestricted duties and would permanently require modified duties to remain in the workforce.
130 Mr O’Brien had little doubt the plaintiff’s general social, domestic and recreational activities were indeed restricted and that would be permanent.
131 Professor Paoletti, psychiatrist, examined the plaintiff initially in June 2013 and more recently in May 2014.
132 From a psychiatric point of view, Professor Paoletti diagnosed:
“1Major Depressive Disorder single episode, chronic moderate to severe without psychotic features.
2A period of cannabis abuse for pain relief.
3A partner relational problem but now in a new relationship.”
133 Professor Paoletti thought the plaintiff’s employment would have been a significant contributing factor to the precipitation of the above because of the physical problems but also because of fear of further injury while at work and the circumstances of his employment in which his requests for assistance were apparently not heeded. It remained so through continuity of symptoms and through the content of the mental processes.
134 Considering the plaintiff had seen two psychologists with no benefit and did not have a disposition to taking anti depressants, those matters together with the passage of time since injury led Professor Paoletti to the conclusion the plaintiff had stabilised for the foreseeable future. He thought the plaintiff met the definition of “severe”.
135 Dr David Middleton, occupational physician, examined the plaintiff in September 2013.
136 Dr Middleton thought the plaintiff originally strained his lower back resulting in derangement of L4-5 and S1 lumbar discs as a result of the nature of his work. In his view, the plaintiff had been left with chronic low back pain which he managed until he had a serious aggravation in 2006 which resulted in disc protrusions at L4-5 and L5-S1, lumbar instability, discogenic pain, possibly temporary radiculopathy and from which the plaintiff had never fully recovered.
137 Because of the plaintiff’s failure to recover from the 2006 injury, he had developed a Chronic Adjustment Disorder with depression of considerable severity at times.
138 Dr Middleton attributed 80 per cent to the 2006 injury and 20 per cent to the earlier injury, noting following it the plaintiff had remained performing full time duties.
139 Dr Middleton thought the plaintiff no longer had the capacity to undertake full time unrestricted manual or pre injury employment, considering his age, background, education and prior work experience. He noted the fact the plaintiff had retained employment related to having a supportive employer and the job was not dependent upon significant physical capacity.
140 Dr Middleton thought there had also been a significant impact on the plaintiff’s social, recreational and domestic activity. He considered the prognosis guarded. In his view, the plaintiff now only has the capacity to perform what could be best described as non manual work, avoiding any forceful, sustained or repetitive use of his lumbar spine, awkward manual handling and limiting weights to a maximum effective weight of 10 kilograms at waist level and an effective weight of 5 kilograms on an occasional basis and 3 kilograms intermittently.
141 Dr Middleton also thought there were significant limitations in the plaintiff’s physical capacity and capacity for work had proved to be a significant interference with his enjoyment of life.
142 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff in May 2014. He thought the plaintiff was cooperative and a clear and straight forward historian and did not form the view he was displaying symptom magnification.
143 On examination there was some restriction of lumbar spine movement and straight leg raising.
144 Mr Miller thought the plaintiff suffered an injury to the lumbar spine influenced by work and in particular the incident. He noted the plaintiff had significant ongoing symptoms and he had had a poor response to conservative treatment. Mr Miller thought the prognosis was fair.
145 Whilst noting the plaintiff’s problems with anxiety and depression, Mr Miller concluded his clinical status reflected predominantly defined organic disease in relation to which the plaintiff would require ongoing conservative treatment. He thought it possible the plaintiff may benefit from surgery but that would be a matter between him and his treating surgeon.
146 Mr Miller thought the plaintiff was not fit for pre injury work. He would have difficulty with work that involved repetitive bending, lifting of weights more than 5 kilograms and would have a requirement to shift posture regularly. Those restrictions were permanent and significantly work related. He noted the plaintiff had been able to return to work of a sedentary nature and that was consistent with the defined injury to the lumbar spine.
The Defendant’s medical evidence
147 There were Certificates of Capacity prepared by Dr Dunne in September 2009. The plaintiff signed a declaration at that time that he had not been engaged in any form of paid employment, self employment or voluntary employment.
148 Ms Gurevtich from Health Point Physiotherapy reported that the plaintiff attended for five sessions in 2011.
149 Dr Cukierman reported in January 2013 that the plaintiff had consulted him on 31 October 2012 after an exacerbation of his chronic back pain.
150 Dr Cukierman noted the plaintiff had been previously accepted by QBE as having a permanent partial incapacity from his chronic back pain. He noted the plaintiff no longer required regular medical review but continued to need to have medical attention when his condition worsened, which it had done from time to time. That explained the gap in the need for treatment from April 2010 until October 2012.
151 Dr Cukierman noted the plaintiff’s pain fluctuated in severity and became very severe at times. Sometimes that could be for no specific reason and sometimes after minor bending. At the consultation in October 2012, the plaintiff required valium and Panadeine Forte to deal with significant muscle spasm for his low back injury.
152 Later in 2013, Dr Cukierman noted that after speaking with the plaintiff, they had decided to withdraw the request for an MRI scan which had been made in May that year.
153 Dr Dunne provided a report of 14 January 2014, noting the plaintiff’s current problem was back pain, WorkCover, L4-5, L5-S1, disc injury. Current medications were listed as Celebrex 200 milligrams, Cialis 20 milligrams, Endone 5 milligrams, Imodium caplet, Panadeine Forte, Tramadol hydrochloride and valium.
154 Dr Dunne noted he last saw the plaintiff on 17 October 2013. The plaintiff had requested prescriptions over the telephone since that date without having a consultation.
Medico-legal evidence
155 Neil Sherburn, consultant physiotherapist, examined the plaintiff at the request of QBE in March 2008, noting that the plaintiff did not report any sustainable change in his function or pain following physiotherapy.
156 Mr Robin Williams, consultant orthopaedic surgeon, first examined the plaintiff in July 2008 and re examined him in February 2010.
157 On re-examination, the plaintiff indicated pain across the mid lumbar region and there was no spasm. Range of movement was approximately one-third of what Mr Williams would expect to be normal and appeared to be limited by increased pain.
158 Mr Williams noted he had seen an earlier radiologist’s report of an MRI scan which demonstrated some degenerative change.
159 Mr Williams thought the plaintiff had a persisting chronic pain syndrome arising out of what he believed were musculoligamentous strains which occurred to his lumbar region during work.
160 Mr Williams thought the plaintiff had a current work capacity, noting he had recently commenced part time work and had the capacity to do the tasks involved.
161 Although he believed the plaintiff had the physical capacity to return to work as a printer, Mr Williams also thought if he tried that work, he would experience a recurrence of significant lower back pain. He could see no reason why the plaintiff should not increase to full time hours in an admin position if the work was available. He did not believe the plaintiff required any specific treatment for his back other than psychological support, noting persisting pain was his problem.
162 The plaintiff was examined by Dr Entwisle, psychiatrist, in 2009 and more recently in February 2010.
163 On re-examination, Dr Entwisle thought the plaintiff continued to suffer from an adjustment disorder with depressed mood secondary to his back injury and pain.
164 Dr Entwisle considered the plaintiff had a work capacity, noting he was in fact employed in a printing business three days a week. He had found this position himself and hoped it would lead to something for him.
165 Dr Entwisle thought the plaintiff had a capacity for work in modified and/or pre injury duties and/or hours as well as alternative duties.
166 Dr Entwisle considered the plaintiff did not require a review from a psychiatric perspective now he was working and appeared to be moving on with his life, noting that he was not receiving any psychological or psychiatric treatment at that time.
Overview
167 There is no dispute in this case the plaintiff suffered a compensable injury to his lumbar spine as a result of the work process and in particular in the incident in October 2006.
168 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[54] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[54][2006] VSCA 171
169 It was not contested that the plaintiff suffered an organic injury to his lumbar spine involving protrusions at L4-5 and L5-S1.
170 However, it is the impairment not the injury which is to be assessed as being or not being serious. The injury which gives rise to the impairment is not of itself the subject of evaluation.[55]
[55]Humphries v Poljak (1992) 2VR 129 at 134
171 Counsel for the defendants also submitted that whilst the consequences of the plaintiff’s lumbar impairment were not totally insignificant, they did not meet the statutory test of seriousness and the injury was “to the milder end of the spectrum”.[56]
[56]T79
Credit
172 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[57]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[57](2010) 31 VR 1 at paragraph [12]
173 Counsel for the defendant submitted the plaintiff was an unreliable witness whose evidence lacked credibility.[58]
[58]T83
174 A number of matters were relied upon in this regard – claiming taxation deductions on a rental property in which the plaintiff himself was living, deposing to having been unemployed between redundancy and starting work with his uncle in January 2010 when he was in fact attending family business and carrying out various work related tasks, the level of bike riding post injury and the plaintiff’s explanation of his overseas travel following his redundancy.
175 There is some strength in this submission. Clearly, deliberately claiming taxation deductions to which he was not entitled relating to his property is a serious credit issue, one affecting his credit, as the plaintiff’s counsel conceded.
176 In my view, the plaintiff’s explanation for his extensive travel overseas post redundancy was not credible and his evidence about his living arrangements on his return was contradictory. In this regard, I do not accept as the plaintiff deposed that he had to move in with his parents for them to care for him post injury.
177 The plaintiff’s explanation as to various activities relating to his uncle’s business before formally starting work in early 2010 was also contradictory and unsatisfactory with the plaintiff initially describing his activities in Hong Kong in 2009 as work, then a holiday. He also spent some time at Gulmen Engineering familiarising himself with the company’s work, possibly attending the premises more than once a week in 2009, yet he denied such activities constituted unpaid or voluntary work.
178 Further, the plaintiff did not mention any attendances at Gulmen Engineering or his father’s business between the redundancy and January 2010 in either affidavit. He also did not mention his “superior” at Gulmen Engineering was his uncle.
179 Whilst deposing to not having cycled since the injury, the plaintiff initially admitted to doing so on two occasions in 2008 and later admitted in cross-examination that his cycling activities went further and he still, on occasion, rides a bike, although not as much as before injury.
180 The surveillance film also raised issues as to the plaintiff’s true level of disability. As the plaintiff conceded, he was not shown in the film of date, the first film of 7 minutes and the second of an hour’s duration, demonstrating any pain or restriction when filmed.
181 The plaintiff was shown moving freely at his nephew’s party enjoying himself with family members. He was shown very briefly climbing up a children’s slide and on his back, sliding from about head height to the ground in no difficulty whatsoever – not moving more freely to “save [his] own life” as he previously described as being a time when he had a greater range of lumbar movement.
182 I do not accept the plaintiff’s explanation that he was somehow assisting his nephew, who was at the top of the slide, as that child does not appear in the film.
183 Whilst in re-examination the plaintiff agreed he was shown getting in and out of the car slowly, swinging his legs in and out, this was not obvious on viewing the film.
184 Having formed this view as to the plaintiff’s credit, I have strong reservations as to his reliability as a witness and in such circumstances, rely more heavily on other more objective evidence as to the plaintiff’s level of disability.
185 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“The evidentiary basis of the pain assessment will ordinarily comprise the following what the plaintiff says about the pain (both in court and to doctors).”
186 Whilst the plaintiff described constant back pain and that he has not had a pain free day since the incident, I do not accept that his pain continues at this level given the range of activities in which the plaintiff continues to engage. A more accurate description of his pain would be “mild” as Mr O’Brien noted.
187 The plaintiff’s medication regime is not to the higher end of the range taking Celebrex and Valium on an as needs basis only.
188 There was one specialist referral to Mr Brazenor neurosurgeon in 2007-2008, who thought conservative treatment was required and considered the plaintiff’s complaints out of proportion to the clinical findings and radiology.
189 Nerve blocks carried out by Dr Lowell did not indicate facet joint pain and were for diagnostic purposes.[59]
[59]T88
190 No further treatment has been suggested by the plaintiff’s treating doctors, although medico legal examiner Mr Miller thought the plaintiff would need ongoing conservative treatment.
191 I accept the plaintiff does experience back pain which causes him difficulty at times with housework, heavier shopping and home maintenance activities. However, as the plaintiff conceded, there has been an improvement in his condition since he swore his first affidavit in 2012.
192 The plaintiff enjoys a relatively normal social life for a thirty-seven year old man with family commitments. He still attends bars, parties and family gatherings. Significantly, for six months until recently, the plaintiff was able to DJ at a popular Richmond Hotel on a weekly to fortnightly basis, working from 1 to 2-hour shifts.
193 The plaintiff’s inability to attend the gym at the present time is due largely to his new lifestyle with a family and the fact he no longer works split shifts. He is still able to ride a bike, although not on longer trips he previously apparently enjoyed. The plaintiff’s boxing pre injury was limited to part of his gym routine and was not a particular interest of his.
194 Whilst the consensus of medical evidence is that the plaintiff cannot work hands in an unrestricted manner in his trade as a printer due to his back condition, he has been able to continue working in that field in a different role, albeit earning less than when he worked with the first defendant.
195 The plaintiff’s present job with Gulmen Engineering involves sales, customer contact and extensive travelling interstate. Intellectually, the plaintiff has no difficulty coping with this role, having completed Year 12 and also obtained a Certificate IV in Operations Management and a Diploma in Logistics and Supply Management.
196 I do not accept this position is modified, sheltered employment as the plaintiff deposed. Whilst he has taken a number of days off work this year due to back pain, the plaintiff continues to work full time with need for little medication.
197 As Ashley JA said in Dwyer v Calco Timbers Pty Ltd No2;[60]
“… in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[60](2008) VSCA 260 at para 27
198 Taking all the evidence into account, whilst the plaintiff does experience some ongoing pain and restriction in his daily activities, I am not satisfied the consequences of his lumbar impairment meet the statutory test of seriousness.
199 Accordingly, the application is dismissed.
Appendix “A”
Exhibits 1 and 2
DVD Video Surveillance Film of the Plaintiff
Surveillance DVD Exhibit 1 – Length: 7 minutes 44 seconds
Date Time Event 29 September 2009 10:26am Plaintiff filmed walking in the street Plaintiff gets out of his vehicle and walks off carrying two objects
10:30am Plaintiff filmed walking his dog holding the lead in his left hand
2:34pm Plaintiff at his dads business filmed standing then squatting down on both knees
Plaintiff speaks to someone on a forklift
2:44pm Plaintiff filmed driving a ute, then at a petrol station
2:45pm Plaintiff bends over to re-fuel the vehicle
3:15pm Plaintiff filmed walking to his car, enters the vehicle and drives off.
Surveillance DVD Exhibit 2 – Length: 1 hour
Date Time Event 19 January 2014 1:54pm Plaintiff filmed standing and walking around at his nephew’s birthday party at Kids City in Keilor East
1:59pm Plaintiff filmed seated at a table
2:07pm Plaintiff filmed walking around Kids City
2:08pm Plaintiff filmed sitting in his vehicle
2:11pm Plaintiff exits his vehicle and is filmed talking to some friends, at times squatting to look at something on his vehicle
2:12pm Plaintiff filmed leaning on his vehicle talking to friends
2:31pm Plaintiff filmed standing and walking around at his nephew’s birthday party at Kids City in Keilor East
2:32pm Plaintiff filmed climbing up the kids slide and then sliding down the slide
2:38pm Plaintiff filmed bending down to pick up a ball and then throwing it to a child
2:48pm Plaintiff filmed talking to a friend, standing around eating food holding a plate
4pm Plaintiff filmed walking to a bottle shop and returning to his car
4:05pm Plaintiff filmed carrying shopping bags down the street towards his house
4:43pm Plaintiff filmed walking down the street
4:45pm Plaintiff filmed bending into his car to collect a jacket.
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