Rhodes v VWA
[2019] VCC 1693
•7 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03610
CI-18-03612
| STEPHEN RHODES | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2019 and 9 October 2019 | |
DATE OF JUDGMENT: | 7 November 2019 | |
CASE MAY BE CITED AS: | Rhodes v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1693 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – 2009 injury to lumbar spine – pain and suffering and loss of earning capacity – 2012 injury to right shoulder – pain and suffering only – whether consequences of both injuries can be disentangled – subsequent motor vehicle accident
Legislation Cited: Accident Compensation Act 1985 (Vic); Transport Accident Act 1986 (Vic)
Cases Cited:AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309; Bezzina v Phi & Anor [2012] VSCA 161; Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; Lexa v Transport Accident Commission [2019] VSCA 123; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Petkovski v Galletti [1994] 1 VR 436; Shock Records Pty Ltd & Anor v Jones [2006] VSCA 180
Judgment: The plaintiff’s applications are dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin QC Ms C Moore | Maurice Blackburn |
| For the Defendant | Mr W Middleton QC Ms K Bradey | Russell Kennedy |
HER HONOUR:
1 The plaintiff brings two applications under s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) for leave to issue common law proceedings. In proceeding No. CI-18-03612 (“the lumbar spine application”), he seeks leave for pain and suffering and loss of earning capacity in relation to a lumbar spine injury suffered during the course of his employment with Patterson Cheney[1] (‘the employer’), in particular when lifting heavy brake shoes from the back of his ute in Gisborne on 28 August 2009. In proceeding No. CI-18-03610 (“the right shoulder application”), he seeks leave for pain and suffering only for a right shoulder injury sustained on 23 March 2012[2] while unloading mud guards at Epsom in Bendigo for the same employer.
[1]The plaintiff started his employment with Westar Trucks which later became Patterson Cheney.
[2]The plaintiff’s application proceeded as a claim under sub-paragraph (a) of the definition of ‘serious injury’ in s 134AB(37) only, as the application under sub-paragraph (c) of the definition was not pursued at the hearing.
2 The plaintiff commenced employment with the employer in October 1983, first as parts person, then as internal manager, and finally in around 2000 as truck parts sales manager. His role involved a significant period of time on the road, visiting customers, undertaking marketing activities, delivering parts and providing quotes.
3 The plaintiff deposed to a history of flare ups of low back pain prior to August 2009, to which I will return. On 28 August 2009, the plaintiff suffered “another instance of back pain, when lifting brake shoe kits from the back of a station wagon” during a delivery to a customer.[3] The kits were in four boxes weighing at least 20-30 kilograms each.
[3]Paragraph 11 of the lumbar spine affidavit, sworn 28 March 2018.
4 The plaintiff also deposed to suffering some right shoulder pain prior to March 2012 due to repetitive heavy lifting at work. On 23 March 2012, he suffered an episode of severe right shoulder pain at work while lifting heavy mud guards off a trailer. He suffered tears to the right shoulder tendon and rotator cuff which were surgically repaired in July 2012.
5 The plaintiff says that prior to the transport accident, apart from the period when he was recovering from his right shoulder surgery in 2012, he worked full-time for 40 hours per week. He was on light duties in the sense that he did not undertake any heavy work or any unloading.
6 On 9 November 2015, the plaintiff was involved in a transport accident, and suffered injury to the cervical spine and left shoulder, as well as aggravation of his right shoulder and lumbar spine injuries and a psychological condition. He made an application under the Transport Accident Act1986 (Vic) for a serious injury certificate in respect of those injuries (“the transport accident application”) and the Transport Accident Commission (TAC) subsequently granted him a serious injury certificate.
7 In spite of the injuries sustained in the transport accident, the plaintiff was able to return to work full-time on light duties. He had three months off work after left shoulder surgery in May 2016 and then built up to working 25 hours per week with restrictions.
8 However he found work increasingly difficult due to his pain (in the neck, back and both shoulders) and stopped work altogether in April 2018 on the advice of his doctor. He has not worked since then. At the hearing, the plaintiff said that he is still employed but is on long service leave.
9 On 28 March 2018, the plaintiff swore three affidavits, one in respect of the lower back application, one in respect of the right shoulder application, and one in respect of the transport accident application. On 7 August 2019, the plaintiff swore a further affidavit covering the two applications before this court.
Issues
10 The defendant says that leave should not be granted in respect of either application for three reasons. First, that it is not possible on the evidence for the court to disentangle the consequences of the plaintiff’s pre-existing back and bilateral shoulder problems and the neck, shoulder and back injuries suffered in the transport accident, from the consequences of the 2009 back injury and the 2012 right shoulder injury, respectively. Second, that the pain and suffering consequences of each of the 2012 right shoulder injury and the 2009 back injury, taken separately, do not satisfy the narrative test for “serious injury”. Third, that the consequences of the 2009 back injury alone do not result in a loss of earning capacity of 40% or more so as to meet the pecuniary loss test for “serious injury”.
11 The plaintiff says, in relation to the back injury, that in the year prior to the incident of 28 August 2009, he was not having physiotherapy for his back, was coping well with his work, and did not expect his back problems would ultimately require him to cease work. For the next six years prior to the transport accident (apart from a period between April and September 2015 when treatment was discontinued by the insurer), the plaintiff had regular physiotherapy (over 200 attendances). He had had investigations in 2010 as well as anaesthetic blocks and a discography which prompted Mr Greg Malham, neurosurgeon, to conclude that an interbody fusion would be a reasonable treatment in the light of the plaintiff’s pain and disability. The plaintiff obtained a second opinion from orthopaedic surgeon, Mr Peter Wilde, who did not recommend surgery, and so he did not proceed with it. A pain specialist, Dr Paul Verrills, suggested a spinal cord stimulator. No further treatment was received because the specialists made it clear that, apart from surgery, nothing could be done for him.
12 The plaintiff says that he was only able to work full-time because of the regular physiotherapy he was receiving, and because his employer accommodated his restrictions. He struggled increasingly with his back pain and restriction before November 2015, and was concerned that he would not be able to continue working until retirement age.
13 For these reasons, the plaintiff says that by reason of the 2009 back injury, he suffered consequences which, absent the aggravation occurring in 2015, have progressed to be such that they are now serious in terms of both pain and suffering and loss of earning capacity.
14 Alternatively, the plaintiff says that by reason of that back injury, the plaintiff had a vulnerability to the consequences which have developed subsequent to the transport accident on 9 November 2015. For this reason, his present incapacity for employment is partly due to the lower back injury sustained before 9 November 2015. Should the Court not regard the plaintiff as having met the threshold for economic loss, the pain and suffering consequences of the back injury suffered before the transport accident are sufficient to meet the narrative test for “serious injury”.
15 In relation to the right shoulder injury, the plaintiff says that by reason of the work-related right shoulder injury he had to have surgery. Whilst that surgery was successful, it has left the plaintiff with consequences including ongoing pain and restricted movement above shoulder height. One of the consequences of the plaintiff trying to protect his right shoulder was that he suffered left shoulder symptoms in 2013, and he remains restricted from using his left arm as an alternative to his right arm, thus increasing the restrictions associated with the right shoulder injury.
The hearing
16 The plaintiff swore three affidavits in support of the current applications (as well as a separate affidavit in support of his TAC serious injury application). At the hearing, he adopted the contents of those affidavits and was cross-examined. No other witnesses were called. The parties tendered the material relied upon. I have considered all the evidence as well as the written and oral submissions made by counsel.
Right shoulder application
Plaintiff’s evidence
17 On 23 March 2012, the plaintiff suffered a right shoulder injury (in the form of an anterior supraspinatus tear) when lifting a pack of truck mudguards out of a trailer. He submitted a WorkCover claim in respect of the injury which was accepted. He underwent surgery (by way of acromioplasty, subacromial bursectomy and rotator cuff repair) on 30 July 2012. He undertook a gradual return to work and eventually returned to full-time duties. He had physiotherapy and hydrotherapy for his right shoulder until it was stopped by the insurer in 2015. As a result of that injury, the plaintiff suffered ongoing pain in the right shoulder, was restricted in repetitive lifting and moving above shoulder height and in pushing and pulling activities involving the use of a lot of force. He developed some left shoulder symptoms as a result of protecting his right shoulder.
18 In his affidavit in support of the right shoulder application, the plaintiff stated that after the right shoulder surgery he continued to have right shoulder pain prior to the transport accident, and that he remained “limited” in what he could do, including: avoiding repetitive and heavy lifting; restricted in performing activities above shoulder height; pushing and pulling using a lot of force; and some restrictions of movement.
19 The impact of the transport accident on the right shoulder is referred to in the affidavit sworn in support of the transport accident application. I note that separate paragraphs in that affidavit made reference to consequences of the “right shoulder injury”[4], “spine injury”[5] and “shoulder injuries”[6]. I have done my best to capture what the plaintiff says about his right shoulder.
[4]PCB, p 29 [32].
[5]PCB, p 29 [34]
[6]PCB, p 29 [34].
20 In that affidavit, the plaintiff noted that he had right shoulder surgery in 2012.[7] He also noted that he had had some left shoulder pain in mid-2013 for which he had an ultrasound and approximately four injections up to August 2014. He noted that he did not feel restricted by his left shoulder prior to the transport accident.[8]
[7]PCB, p 25 [7(e)].
[8]PCB, p 25 [7(f)].
21 In respect of the sequelae of the transport accident related right shoulder injury alone, the plaintiff stated that he had the following symptoms:[9]
[9]PCB, p 29 [32].
a. Constant pain since the accident. I had pain in my right shoulder before the accident, but it is worse now.
b. Restricted movement. Before the accident, movement in my right shoulder was not perfect and I still had some problems with above shoulder activity, but I had more movement than I do now.
c. Increased pain with movement and activity.
22 In relation to his “shoulder injuries”, he later deposed in the same affidavit[10] that he had difficulty with a number of activities: lifting above shoulder height; pulling on jumpers or shoes and socks; reaching forward; using a computer; grocery shopping; whipper snipping; washing the dishes; washing his hair; boating; ironing; home maintenance; and swimming.
[10]PCB, p 30 [34].
23 In his further affidavit, sworn 7 August 2019, the plaintiff stated that he had physiotherapy and hydrotherapy for his right shoulder between 2012 and 2015. He stated that by April 2018, he was no longer coping with the pain he was experiencing in his “back, neck and shoulders”, and that he has been certified unfit to return to work since that time. His sleep and sex life continue to be restricted because of his back and shoulder pain. He continues to have right shoulder pain, although it is not as severe as his back pain.[11] The right shoulder surgery in 2012 “improved the symptoms in [his] shoulder in the long term”. However, he has “an ongoing restriction in range of movement in [his] right shoulder which [he] understand[s] is permanent”. He continues to have frequent hydrotherapy to cope with his back, neck and shoulder as well as regular physiotherapy.
[11]PCB, p 137 [16].
24 At the hearing, the plaintiff agreed that in spite of surgery he had ongoing right shoulder pain but managed to return to full-time work, with lifting limits. He agreed that the right shoulder pain had been aggravated by the transport accident but said that it then gradually settled back to the level it had been at prior to that accident, with minor residual discomfort from time to time.[12] He continues to have right shoulder pain and difficulty sleeping on that shoulder.
Right shoulder - radiology
[12]T65:9-13.
25 Right shoulder ultrasound on 29 March 2012[13] revealed a full thickness tear of the anterior supraspinatus tendon, which the reporter was unable to determine was old or new.
[13]PCB, p 128.
26 Bilateral shoulder ultrasound on 28 January 2016 was reported as revealing, in relation to the right shoulder,[14] some subacromial bursal thickening in addition to the echogenic areas consistent with suture material.
Right shoulder – treatment
[14]PCB, p 129.
27 In his report to the WorkCover insurer dated 21 May 2012, Mr Francis Lyons, orthopaedic surgeon, observed[15] that the plaintiff was suffering with right shoulder symptoms, suggestive of a full thickness supraspinatus tendon tear, related to a work injury. He requested the insurer fund right shoulder surgery in the form of decompression and rotator cuff repair.
[15]PCB, p 34.
28 On 30 July 2012, Mr Lyons performed[16] right shoulder acromioplasty, coracoacromial ligament resection, subacromial bursectomy, excision greater tuberosity of humerus and rotator cuff repair.
[16]Operation report of Mr Francis Lyons at PCB, p 63.
29 Between 19 September 2012 and 13 June 2013 the plaintiff received physiotherapy for his right shoulder.[17] His rehabilitation was complicated by post-operative capsulitis.
[17]PCB, p 58.
30 There were no medical or medico-legal reports which dealt exclusively with the right shoulder. I have referred below to all of the reports which address the 2012 right shoulder injury.
Lumbar spine application
Plaintiff’s evidence
31 In the evidence in support of the lumbar spine application, the plaintiff gave a history of a number of instances of back pain prior to August 2009. He suffered short-term back pain after a water skiing accident in 1993; an episode of back pain at work in 1999; and from mid-2002 he had intermittent physiotherapy for flare-ups of back pain for which he was also prescribed medication. He had an increase of symptoms in late 2003 and had a spinal epidural injection in 2004 which gave him some relief. He continued to work full-time without restrictions, with only occasional time off for incidents of back pain, until the incident on 28 August 2009 in which he suffered an aggravation of his back pain while lifting brake shoes. He lodged a WorkCover claim in respect of the back injury on 28 August 2009. He continued to work full-time but informally he was limited to light lifting only. He struggled with low back pain and restrictions.
32 According to his further affidavit, his back pain was increasing after 2009.[18] He had investigations in 2010 and treatment with analgesia and a further epidural injection. He was referred to neurosurgeon, Mr Greg Malham, in 2010, who referred him to pain specialist, Dr Paul Verrills. Dr Verrills carried out facet joint injections, discography and an epidural injection which provided minimal relief. Dr Verrills then suggested the insertion of a spinal cord stimulator, but the plaintiff was reluctant to undergo the procedure.
[18]PCB, p 134 [3].
33 Upon review, Mr Malham discussed the possibility of a single level fusion in the lumbar spine. The plaintiff obtained a second opinion from orthopaedic surgeon, Mr Peter Wilde, in relation to that proposed surgery. He then decided against having surgery.
34 The plaintiff had regular physiotherapy and hydrotherapy from 2009 until it was stopped by the insurer in April 2015. Through his doctor, the plaintiff found an alternative program for ongoing physiotherapy and resumed it in September 2015 for his back symptoms.
35 He avoided taking medication because it made him feel sick and constipated. As a result of his back pain, he became limited in what he could do at work, and tried to avoid lifting. He had limitations in twisting, sitting, standing, mowing the lawn, cleaning gutters, climbing ladders, raking, sweeping, and bending.[19] He found that doing physically demanding tasks would often result in flare ups of back pain.[20]
[19]PCB, p 16 [22].
[20]PCB, p 16 [23].
36 The plaintiff stated, in his further affidavit,[21] that he was able to continue working between 2012 and 2015 despite his back pain because his employer was “very accommodating”, allowing him to work at his own pace, mainly seeing customers, doing “very limited” delivery work, and avoiding lifting and bending activities. The plaintiff stated that, given his restrictions, he doubted that he would have been able to obtain another job in his industry during that period.
[21]PCB, p 135 [6].
37 In his affidavit in support of the transport accident application, the plaintiff stated, in relation to his back, that he had not sought specialist treatment “for a number of years prior to the accident”[22] although he had been receiving physiotherapy treatment which helped keep him active and able to work full-time.
[22]PCB, p 24 [7(d)].
38 After the transport accident, he saw Mr Malham and Dr Verrills in 2016. Mr Malham did not recommend surgery to his back or neck, but referred him to Dr Verrills. Dr Verrills performed a branch blocks to the lumbar spine in early 2017, and another injection in early 2018, but the effects were short-lived. Dr Verrills proposed a trial of a spinal cord stimulator but the plaintiff was reluctant to go ahead with that procedure. He also consulted a pain psychologist, David Field. He was having regular physiotherapy and hydrotherapy, and taking Panadol Osteo at times (although it did not agree with his stomach), and Panadeine Forte every month or so (which made him drowsy). He was sometimes using heat packs and having hot showers to relieve his back pain.
In his transport accident affidavit,[23] the plaintiff stated that whereas in 2010 the back pain was predominantly localised back pain, with only some referred pain,[24] after the 2015 transport accident, he was never the same.[25] His lumbar spine symptoms were detailed as follows:
[23]PCB, p 30.
[24]T44:12-16.
[25]T35:28.
d. Constant and severe pain in my lower back, much worse than it was before the accident.
e. Pain travelling down through my bottom and into my left leg. While I had this symptom before the accident, it would come and go and I do not believe it was there at all just before the accident. Now, it is there all the time. It is quite severe and sometimes it feels as though I am dragging a brick around with my left foot.
f. Numbness and pins and needles in my lower leg and left foot. These symptoms were not there before the accident.
39 He stated that he had “difficulty”[26] bending, twisting, sitting, standing or walking for long periods, using stairs and ramps, using public transport, coughing and sneezing, and driving. His sleep and sex life were affected by his back pain. His back pain worsened over the course of the working day and “I collapse in a heap when get home – I am a mess.”[27] Elsewhere in the affidavit he stated that his lower back pain and neck pain affected his ability to swim,[28] mow the lawn,[29] fix his car, boat and bikes. He did not think he could do a desk job as sitting would be too painful for his back and reaching for the phone or operating a computer would hurt his left arm.[30]
[26]PCB, p 31 [35].
[27]PCB, p 32 [38].
[28]PCB, p 31 [34(m)].
[29]PCB, p 32 [35(l)].
[30]PCB, p 32-33 [38].
40 He stated that, but for the transport accident, he had planned to keep working full-time until his planned retirement. He had also planned to travel around Australia, but would no longer be able to do so given the injuries (to the back, neck, shoulders and psychological) suffered in the transport accident.
41 At the hearing, in relation to his August 2009 back injury, he said that he had epidural injections,[31] opted not to have surgery, and worked with lifting limits (no heavy lifting). He had weekly physiotherapy and hydrotherapy between 2010 and 2015. He was unable to be very specific about the extent of any limitations relating to his back prior to 2009. He said that he could not recall whether he cleaned gutters before 2009; that he rarely mowed the lawns before then; that he had stopped swimming prior to 2009;[32] that he did limited raking before 2009; and that he was a bit restricted in climbing ladders before 2009. He said that he did not have trouble twisting before 2009 and that after 2009 his sitting limits worsened. He said that prior to 2009 he worked without restrictions due to his back.
[31]T45.6.
[32]T47.
42 He said that between 2010 and 2015 he had regular physiotherapy treatment for his low back pain and referred leg pain. After working a full day, he had leg pain and had to lie down. He was doing regular duties but with no lifting, twisting or bending. He was unable to do stocktakes. He had to have help to take larger items to city locations. He said that over these years, his ability to attend work and do things at work worsened. Regular physiotherapy and hydrotherapy kept him going and enabled him to keep working. When physiotherapy was ceased in 2015, he felt that he would not be able to work until retirement age.
43 He said that he continues to have weekly physiotherapy for his neck, left shoulder and back.
44 In relation to the aggravation of his back condition in 2015 after the transport accident, he confirmed that his back pain flared up considerably, and that Dr Verrills suggested a spinal pain stimulator in 2017 but first required him to have a number of sessions of psychological counselling with Mr Field.
45 He agreed that after the transport accident he had a few weeks off, then returned to work 25 hours per week. He was unable to manage doing more than those hours. He agreed that he stopped work in 2018 on medical advice due to the combination of his injuries arising from the transport accident and due to the aggravation of some of his earlier injuries (including the back) in that accident which made it impossible for him to perform an office-based role. He agreed that he was not receiving any medical treatment prior to the transport accident.
46 The plaintiff was answerable at work to Mr Frank Costa. Mr Costa swore an affidavit in which he stated[33] that he has known the plaintiff since 1987; that the plaintiff has “always complained about having a sore back”;[34] and that Mr Costa often suggested that he come off the road and do desk work instead, but the plaintiff refused those offers. Mr Costa stated that after the transport accident the plaintiff was “never the same” and “complained regularly about having a sore back and a sore neck”[35]. It was then that Mr Costa suggested that the plaintiff consider coming off the road and transferring into an office position at the Campbellfield branch, where a modified work station would be provided. Mr Costa stated that the plaintiff was “firmly against this idea”. The plaintiff agreed in cross-examination that the suggestion was made to him by Mr Costa after the transport accident and that he rejected it.
Investigations
[33]On 27 November 2018, DCB, p 1.
[34]DCB, p 2 [7].
[35]DCB, p 2.
47 An x-ray of the plaintiff’s lumbosacral spine on 1 May 2001 revealed mild narrowing of the L5/S1 disc space, indicating mild L5/S1 disc degeneration, and mild facet joint arthritis.[36]
[36]DCB, p 21.
48 A further x-ray of the lumbosacral spine performed on 9 September 2003[37] showed moderate narrowing of the L5/S1 disc space and minor L5/S1 facet joint arthritis. Mild lumbar scoliosis was noted.
[37]DCB, p 22.
49 The plaintiff underwent a CT scan of his lumbar spine on 27 November 2003[38] which identified a moderate right paracentral disc extrusion at the L5/S1 level causing compression of the right anterior aspect of the thecal sac as the likely cause of the plaintiff’s right sciatica. No significant disc pathology was observed between L1/2 and L4/5.
[38]DCB, p 23.
50 An MRI performed on 6 February 2004[39] showed desiccation of the L4/5 and L5/S1 discs. The report noted “…mild uncomplicated central disc protrusion [at] L5/S1 abutting, but neither displacing or compressing the S1 nerve roots bilaterally…[and]…Uncomplicated minimal annular bulge [at] L4/5”.
[39]DCB, p 24.
51 A lumbosacral spine x-ray performed on 29 March 2010[40] showed early spondylosis at L4 and L5 causing anterior lipping.
[40]DCB, p 29.
52 A MRI of the lumbar spine performed on 23 April 2010 showed[41] desiccation of L3/4 and L4/5 discs with loss of height at L5/S1. There was a broad based disc bulge at L4/5 without neural compression.
[41]PCB, p 138.
53 MRI performed[42] on 7 June 2016 showed three level disc degeneration from L3 to S1 without focal disc protrusion with asymmetric generalised disc bulge resulting in minor subarticular stenosis of the traversing right L5 nerve at the L4/5 level with minor bilateral bony foraminal stenosis at L4/5 and L5/S1 without neural compromise.
Treatment prior to August 2009
[42]PCB, p 58.
54 Prior to the 2009 back injury, the plaintiff had a significant history of back pain going back to 1993, when a water skiing accident prompted attendance at hospital, physiotherapy and prescription medication. Thereafter, there were bouts of episodic back pain followed by extensive physiotherapy treatment. At the hearing, the plaintiff acknowledged that he has had sciatica which has come and gone over the years.[43]
[43]T57:22-28.
55 For example, in March 2001, the plaintiff was “paralysed for 24 hours”[44] and his treating physiotherapist, Pamela Teoh, recorded that he had back pain on and off since that time.[45] He had an x-ray of the lumbar spine on 1 May 2001.
[44]See the progress notes of Dr Low dated 30 March 2001 at DCB, p 118 and p 149.
[45]PCB, p56 and T6-7; T49.
56 Between 5 July 2002 and 1 November 2002, the plaintiff received[46] physiotherapy treatment after he presented with longstanding right-sided lower back pain with radiation into the right buttock and posterior thigh. He reported he had suffered with lower back pain for about eight years, following a water-skiing injury, but that the pain had been worsening in the six to eight months before July 2002. The pain was especially bad after raking leaves which resulting in him being unable to move the following day.
[46]PCB, p 56 and T50:4-8.
57 On 31 March 2003, the plaintiff reported lower back pain to Dr Leow.[47] On 9 April 2003, he saw Ms Teoh when his back “locked up”[48] after a long drive while working which resulted in the plaintiff being bedridden for four days. He had x-rays of the lumbar spine in September 2003; reported severe ongoing right sciatica to Dr Leow in November 2003;[49] was being prescribed Oxycontin, Endone and Panadeine Forte; and had physiotherapy for his lower back between April and December 2003.[50] He was referred to Mr John Owen, orthopaedic surgeon, for an epidural injection to the lumbo-sacral region on 12 December 2003 but collapsed from pain just before it could be administered[51], so Mr Owen referred him for further physiotherapy treatment. The plaintiff made a WorkCover claim for physiotherapy some time after March 2004 and had treatment for the lower back between early March 2004 and March 2006.[52]
[47]DCB, p 118.
[48]PCB, p 56.
[49]See the clinical note of Dr Leow at DCB, p 120.
[50]See report of Ms Teoh at PCB, p 91.
[51]This was confirmed by the plaintiff in cross-examination. See T53:14-16.
[52]PCB, p 91; T52:17-18; report of Ms Teoh 20 November 2017 – PCB 57.
58 The plaintiff experienced further aggravations[53] of his lower back symptoms in June 2006 (when moving house), January 2007 (washing his car), December 2007 (dragging a brake drum from under a bench), and April 2008 (circumstances unclear). On each occasion, he attended for a month or so of physiotherapy treatment.
Treatment between August 2009 and 2015 transport accident
[53]PCB, p 57, p 91 and T52:19-26.
59 On 31 August 2009, the plaintiff attended for physiotherapy reporting[54] that three days earlier he had lifted four boxes of brake shoes, each weighing approximately 30 kilograms and that he “could hardly walk” the following day. The plaintiff continued to receive physiotherapy “for this episode” until 21 October 2009.
[54]PCB, p 57 and p 91.
60 On 27 January 2010, the plaintiff had a further episode of physiotherapy treatment (the ninth episode documented by Ms Teoh) after suffering a further aggravation of his lower back symptoms. Ms Teoh did not specify the circumstances in which that aggravation occurred, but noted that he was then referred for assessment and treatment as outlined below. Ms Teoh stated that the plaintiff attended continuously for treatment from this period until 29 April 2015.[55]
[55]PCB, p 57.
61 The plaintiff’s general practitioner, Dr Yu Long Leow, referred him to Mr Greg Malham, neurosurgeon. Mr Malham reported on 29 April 2010[56] that when he saw the plaintiff, the plaintiff reported “low back pain, worse with standing and walking” and “referred lower limb pain radiating down the left > right buttocks and posterior thighs”. The plaintiff complained that “over the past 2 years the pain [was] “not going away”’ and was in fact “getting worse”.[57] The plaintiff reported he could “not lift anything”. After examining the plaintiff, Mr Malham felt that surgery was not indicated and that the plaintiff’s back was safe and stable.[58] He referred the plaintiff to pain specialist Dr Paul Verrills.
[56]PCB, p 138.
[57]PCB, p 43.
[58]PCB, p 138.
62 Dr Verrills reported[59] seeing the plaintiff in April 2010. At that time, the plaintiff stated that he developed severe back pain after unloading brake shoes in Gisborne in around September 2009 and that his pain became unbearable over time. The pain was mainly in his low buttocks, referred down the left leg. Dr Verrills performed bilateral medial branch blocks in June 2010 and sacroiliac joint blocks in July 2010 that were all negative. Lumbar discography on 6 September 2010 confirmed that the plaintiff’s pain came from the L5/S1 disc. He was scoring his pain at around 7/10 and was severely limited with driving, working and walking. Dr Verrills referred the plaintiff back to Mr Melham for discussion about possible surgery in the form of an L5/S1 fusion surgery.
[59]PCB, p 83.
63 The plaintiff saw Mr Malham again on 6 October 2010. Mr Malham noted[60] that the plaintiff continued to struggle with work, that he still had significant functional limitations, and that the pain was driving him mad. Mr Malham suggested that each of the options of continuing with conservative treatment or alternatively undergoing a L5/S1 interbody fusion was reasonable.
[60]PCB, p 140.
64 The plaintiff received regular physiotherapy treatment for lower back symptoms between 27 January 2010 and 29 April 2015.[61]
[61]PCB, p 57.
65 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff on 26 February 2015[62] in relation to his chronic low back pain at the request of the WorkCover insurer. He is the only medico-legal doctor to have examined the plaintiff prior to the transport accident. Mr Jones took a history from the plaintiff of chronic low back pain, with symptoms becoming evident on 28 August 2009, and with little change over the previous 12 months. He did not record receiving a history of any other episodes. He recorded that the onset of the symptoms was “subacute and slowly progressive”. The plaintiff complained of pain which varied from day to day but was always present. The plaintiff could walk for 10-15 minutes before needing to rest. He attended weekly physiotherapy, which involved massage and ultrasound, and was taking “the usual medication” (having trialled other medications in the past)[63] but without much pain relief from that medication. He would get considerable relief from a hot shower each morning. Mr Jones noted that the plaintiff was able to manage work, which involved car travel and traversing stairs, “reasonably well”,[64] although the plaintiff expressed concern about his ability to continue work without physiotherapy treatment. The plaintiff told him that he “ha[d] slowed up substantially” in respect to his ability to perform activities, that house and garden maintenance was difficult, and that he was unable to wash his car.
[62]DCB, p 31.
[63]Mr Jones records the plaintiff ceased other medications because they made him sleepy and did not relieve his back pain.
[64]DCB, p 32.
66 On examination, Mr Jones recorded that the plaintiff was able to walk with normal gait, sat comfortably, complained of discomfort when extending his back, and showed some leg raising restriction. He concluded that the plaintiff suffered from discogenic low backache involving three lumbar discs, with some mild restriction. He noted that the plaintiff had not had any time off work, and that the plaintiff told him that regular physiotherapy helped him to maintain mobility and work full-time. He noted that there was no specific history of injury and that symptoms appeared and worsened over a period of time in 2009, but had not changed in the two years before Mr Jones had seen the plaintiff. He noted that the plaintiff was reluctant to have surgery. Mr Jones felt that surgery was contraindicated given the plaintiff’s capacity to work full-time. Mr Jones concluded that while physiotherapy was appropriate for the plaintiff’s chronic condition, his physiotherapist should try to transition the plaintiff to self-management.
67 On 16 September 2015 the plaintiff had one session of physiotherapy with Ms Teoh for lower back symptoms.[65] This was the plaintiff’s last attendance prior to the transport accident on 9 November 2015.
Impact of the Transport Accident (9 November 2015): lumbar spine and right shoulder – treatment and medical reports
[65]PCB, p 58.
68 On the day of the transport accident, the plaintiff saw Dr Leow complaining of neck, left shoulder, right clavicle and bilateral wrist pain, as well as back pain radiating down his left buttock, leg and foot. Dr Leow noted that the plaintiff was working part-time with great difficulty. Following the transport accident, the plaintiff received physiotherapy for his cervical spine, lumbar spine and left shoulder between 16 November 2015 and March 2018.[66]
[66]There was a break in treatment when the insurer terminated treatment in December 2017. That treatment was reinstated in March 2018.
69 The plaintiff agreed that, as a result of the transport accident, he suffered an aggravation of his pre-existing and symptomatic lumber spine condition, as well as an aggravation of the condition of his surgically operated right shoulder. I have already outlined what the plaintiff said about these sequelae.
70 I note that many of the reports deal, at the one time, with a number of injuries, including injuries to the right shoulder and the lumbar spine. It is appropriate to briefly summarise the reports before commenting on the assistance they provide in determining the issues in each application.
71 Mr Malham reviewed the plaintiff on 20 April 2016[67] and noted a report of a transport accident which caused, among other things, aggravation of his lower back pain, “with worsening bilateral pain radiating to the buttocks and radiating down the lateral aspect of the left lower limb to the dorsum of the left foot”. He suggested further MRI. Mr Malham further reviewed the plaintiff on 20 June 2016, and noted a complaint of ongoing low back pain with referred pain to the left posterior lateral thigh, with no pain radiating below the left knee. He noted the lumbar MRI scan showed a “contralateral right L4/5 disc bulge, contacting the right L5 nerve root”, but also noted that the plaintiff was asymptomatic in the right lower limb. He discussed the possibility of a left L5/S1 epidural injection for the back pain, and indicated that this could be undertaken by Dr Verrills.
[67]PCB, p 45.
72 Mr Malham concluded that the work injuries suffered “in 2010” aggravated pre-existing cervical and lumbar degenerative spondylosis changes.[68] He felt that if the back pain continued, the plaintiff may require L5/S1 fusion. I am uncertain as to whether Mr Malham meant to refer in the above comment to the 2009 work injuries as he saw the plaintiff in 2010 after an aggravation of symptoms in 2010.
[68]PCB, p 50.
73 On 12 August 2016, Dr Neil Berry, orthopaedic surgeon, reported[69] in relation to the plaintiff’s claim for weekly benefits flowing from the transport accident, that the plaintiff complained of left shoulder pain, neck pain, back pain and pain down the left leg to the ankle, as well as aggravation of a previous right shoulder injury. He was having physiotherapy twice weekly and hydrotherapy several days per week. He was also taking medication when needed. Dr Berry took a history of a previous back injury from lifting spare parts at work in 2010 which left the plaintiff with continuous back pain and intermittent left leg pain. He noted that prior to the transport accident the plaintiff was doing restricted duties to the extent of avoiding heavy lifting. Dr Berry concluded that the transport accident aggravated pre-existing degenerative disc disease in the neck and back without producing a frank protrusion, and that the left leg complaints were non-radicular. However, he considered that the increased neck, back, left shoulder and left leg pain were direct consequences of the transport accident. He felt that it was likely that the plaintiff would return to his pre-injury hours, but that he would continue to be unable to do lifting type work for the foreseeable future. He assessed the plaintiff as capable of carrying out the proposed office-based duties, gradually building up to full-time hours.
[69]PCB, p 53.
74 Dr Verrills saw the plaintiff again in November 2016[70] following a further referral by Dr Leow in relation to the transport accident. The plaintiff told him that his low back pain had been quite manageable prior to the accident but then flared up significantly, and was worse on the left, with pain increasing during the day and being aggravated by flexing forward, lifting and doing minor tasks around the home. The back pain was 6-8/10 and at times reached 10/10 and was described “as being severely intrusive in his life”. He also complained of bilateral neck pain. Dr Verrills again performed lumbar medial branch blocks and bilateral sacroiliac branch blocks in early 2017, and these were all negative. He diagnosed aggravation of the plaintiff’s L5/S1 discogenic pain and opined that this was the major source of his pain, although he also had some neck symptoms. An epidural injection performed in late January 2018 provided only short-term relief. Dr Verrills recommended a spinal cord stimulation trial. Dr Verrills concluded that the plaintiff’s prognosis remained guarded and that it was unlikely, due to the discogenic pain, that the plaintiff would ever return to gainful employment. He felt that the plaintiff’s overall status might be improved following successful spinal cord stimulation.
[70]PCB, p 84.
75 On 11 August 2017, in relation to the transport accident, Dr Leow reported[71] that the plaintiff had a long history of back and shoulder problems whilst in his employment over the previous 35 years with the same employer. Dr Leow diagnosed transport accident-related exacerbations of his cervical and lumbar disc degenerative disease and his shoulder conditions. Dr Leow noted that the plaintiff was treated with physiotherapy, analgesics and anti-inflammatory medication and was referred to Mr Lyons, Mr Malham and Dr Verrills. Dr Leow concluded that the plaintiff was struggling to work 25 hours per week, that his prognosis was “very guarded” and that he might require further epidural injections or a lumbar fusion in future. At the time of the report, the plaintiff was waiting for approval from the insurer to see a pain psychologist.
[71]PCB, p 35.
76 Mr Francis Lyons, orthopaedic surgeon, saw the plaintiff on 16 August 2017[72] in relation to the left shoulder and the impact of the transport accident on it. However, the plaintiff also told him that the right shoulder pain suffered in the transport accident had “gradually settled, leaving him with just some minor residual discomfort from time to time” and that he “found those right shoulder symptoms quite manageable”.[73]
[72]PCB, p 39.
[73]PCB, p 40.
77 Dr Neil Berry reported on 22 September 2017[74] that as a result of the transport accident the plaintiff suffered a left shoulder rotator cuff injury, and aggravated the disease of the neck and back, with referral into the left leg, as well as aggravating a previous right shoulder rotator cuff injury. The plaintiff reported that the worst area was his back where he was experiencing constant back pain with continuing referred pain down the left leg. Dr Berry noted that the plaintiff was working 25 hours per week and considered that he was unable to perform any heavy household duties or any work activities requiring prolonged, sitting, standing, bending or lifting. Dr Berry concluded that the plaintiff had no prospect of increasing his hours or extending his type of work for the foreseeable future.
[74]DCB, p 50.
78 After the transport accident, Ms Teoh treated the plaintiff for the symptoms flowing from that accident in his shoulders, neck, and aggravation of his low back symptoms.
79 In her report dated 20 November 2017,[75] Ms Teoh noted that between 16 November 2015 and 28 April 2016 the plaintiff had physiotherapy treatment for his left shoulder, cervical spine, lower back and right shoulder following the transport accident.[76] Ms Teoh stated that the plaintiff’s pain affected his sleep but did not specifically relate this to a body part.
[75]PCB, p 56.
[76]He also had further treatment following left shoulder surgery in 2016.
80 In relation to the lumbar spine, that the plaintiff reported “constant left-sided pain of varying intensity in the lumbo-sacral region with radiation into the left buttock and leg”. His back pain was aggravated by work, especially carrying parts and prolonged sitting, as well as manual handling and prolonged driving. Ms Teoh diagnosed the plaintiff with “chronic strain of [the] lumbar-sacral region incorporating generalised disc bulges at L3-4 and L4-5 and paracentral disc protrusion at L5-S1”.[77] She felt that both the plaintiff’s employment and the transport accident were “significant contributing factor[s]” in the plaintiff’s lower back symptoms.
[77]PCB, p 60.
81 In relation to the right shoulder, she recorded “fairly constant” right shoulder pain made worse by movement and activity, and aggravated by work, in particular carrying parts and reaching for the phone. On examination, she found that range of motion was restricted.[78] Ms Teoh concluded that the plaintiff’s employment was a “significant contributing factor” in his right shoulder injury. She did not mention any relationship between the transport accident and the right shoulder injury. She opined that the injury is still materially contributed to by work.
[78]On 8 November 2017.
82 At the time of the report, the plaintiff was working five hours per day, five days per week with restrictions in sitting, standing, walking, bending, squatting, kneeling, reaching above shoulder height and moving his neck.[79] Ms Teoh opined this was the limit of his work capacity. She considered that the plaintiff was only able to remain at work with ongoing physiotherapy and “through sheer determination and force of will”[80] and that he would be unable to progress beyond that level.
[79]The plaintiff had a gradual return to work following surgery to his right shoulder.
[80]PCB, p 61.
83 Dr David Fish, Occupational & Environmental Physician, conducted an Impairment Assessment of the lumbar spine and reported on 19 December 2017[81] that the plaintiff gave a history of complete resolution of a back injury sustained in November 2003, but of further and ongoing back problems ever since the injury of August 2009, (although he had poor recall of this episode) and a further aggravation in the 2015 transport accident.
[81]DCB, p 37.
84 He told Dr Fish that as a result of the transport accident he suffered pain in the left shoulder, neck, a worsening of right shoulder pain and low back pain. He also developed referred pain into the left leg and down the left foot with associated numbness. The pain went down the left leg to the left foot, with some numbness in the foot and great toe. He needed help with personal activities of daily living including putting on shoes, socks, tops and jackets and was helped by his wife. He was unable to mow the lawn anymore. He had previously been active walking and speed boating but was much more restricted in these pursuits.
85 The plaintiff reported he was taking Panadol Osteo between 2-7 days per week and Panadeine Forte on and off; and that his low back pain limited his sleep. He experienced left leg pain after walking for more than 10 minutes. He required assistance with dressing and was no longer able to mow the lawn or do much walking or boating.
86 Dr Fish opined that the plaintiff’s lumbar spine symptoms had completely resolved prior to 2009[82] and concluded that in August 2009 the plaintiff sustained an aggravation of his back injury with ongoing symptoms. There was no clinical evidence of radiculopathy. He concluded that the impairment of the function of the lumbar spine sustained as a result of the August 2009 injury was permanent.
[82]DCB, p 38.
87 On 12 January 2018, Dr Leow reported[83] that, as a result of the transport accident, the plaintiff suffered aggravations of his cervical and lumbar degenerative disease and his shoulder conditions. He noted that the plaintiff was working 25 hours per week with great difficulty and was being pressured to return to full-time hours.[84] Dr Leow also concluded that the plaintiff’s injuries remained work related.
[83]PCB, p 64.
[84]PCB, p 67.
88 On 31 January 2018, Ms Teoh reported[85] to the Accident Compensation Conciliation Service that she was treating the plaintiff once per fortnight for his back, neck and left shoulder problems, and that the plaintiff was attending hydrotherapy funded by the insurer. Ms Teoh recorded that in the transport accident the plaintiff sustained injuries to his neck and left shoulder and aggravated his back and right shoulder symptoms[86]. She treated him for those injuries until 28 April 2016. He re-presented in June 2016 for treatment after his left shoulder surgery, and she continued until the date of the report to treat him for his neck, back and left shoulder problems.
[85]PCB, p 70.
[86]PCB, p 58.
89 Ms Teoh opined that work contributed to his lower back and right shoulder injuries and that the transport accident contributed to his neck, lower back and left shoulder injuries. She felt that his back injury was particularly significant, and that the plaintiff was stoic in that he continued to work in spite of his pain and despite her advice to reduce his work hours. She felt that he would not be able to work beyond his current work capacity and would require ongoing physiotherapy and hydrotherapy to do so. Cessation of these treatments would result in worsening symptoms and more time off work. She considered that he was permanently unable to return to his pre-injury duties or hours. In her subsequent report dated 22 August 2018, Ms Teoh repeated these conclusions.
90 Mr David Field, clinical psychologist, reported on 20 February 2018[87] that the plaintiff reported chronic bilateral shoulder pain, neck and back pain after the transport accident. At the time of assessment he said his pain was in the left shoulder, neck and lower back with referred pain down his left leg and foot. The pain was exacerbated by lifting, prolonged sitting and walking. He was taking Lyrica and Norspan patches. The pain interrupted his sleep. He was working 25 hours per week. He worried about his reduced capacity for work.
[87]PCB, p 75.
91 Dr Joseph Slesenger, occupational physician, examined the plaintiff’s neck, shoulders and lower back and reported[88] on 11 May 2018 that the plaintiff told him that after the transport accident he suffered bilateral shoulder, neck, lower back and left leg pain. At the time of the consultation, he reported severe left foot pain and numbness. The plaintiff told him that three months after the transport accident, he had returned to work and gradually built up to working 25 hours per week doing desk duties which seemed to aggravate his symptoms as he was unable to mobilise regularly. He reported a gradual deterioration of his symptoms around April 2018 and had not worked for the five weeks prior to the assessment.
[88]DCB, p 56.
92 In relation to the back, the plaintiff complained of ongoing severe, constant and sometimes dull lower back pain with left leg pain and left foot numbness.
93 He also suffered aggravation of the mild residual right shoulder pain which he had been left with after his work-related injury and surgery. The plaintiff told him that the right shoulder pain was now at a moderate to severe level and restricted some of his shoulder movements.
94 On examination, Dr Slesenger noted severe restriction to the range of cervical, bilateral shoulder and lumbar spine movements. However, he noted that this contrasted with the improved range of movements upon distraction.
95 In relation to the plaintiff’s overall presentation, Dr Slesenger opined that there was a strong psychogenic element to the plaintiff’s presentation which was at least in part non-organic and only partially related to the transport accident. He stated that there were other non-organic features, but did not specify what they were.[89]
[89]DCB, p 66.
96 In relation to the lumbar spine, Dr Slesenger diagnosed mechanical injury to the lumbar spine; aggravation of pre-existing degenerative disease of the lumbar spine; chronic lower back pain with left leg radiation features but no evidence of radiculopathy.[90]
[90]DCB, p 65.
97 In relation to the right shoulder, Dr Slesenger diagnosed aggravation of pre-existing degeneration of the right shoulder (which had been surgically repaired), chronic right shoulder pain, and possible chronic adhesive capsulitis.[91]
[91]Ibid.
98 He noted the long prior history of back pain and past right shoulder injury. The past right shoulder injury at least partially contributed to his right shoulder impairment. He recommended assessment by a pain specialist. In the light of the strong psychogenic element to the plaintiff’s presentation, he considered that the right shoulder and lumbar spine conditions were only partly related to the 2015 transport accident.[92]
[92]Ibid.
99 He concluded, in relation to the organic component of all the conditions suffered by the plaintiff, that he could not return to unrestricted pre-injury duties but was capable of working 25 hours per week with restrictions: no pushing, pulling, carrying or lifting more than 5 kilograms; no repetitive bending or twisting; no over-shoulder reaching; driving up to one hour at a time (with a break of 30 minutes).[93]
[93]DCB, p 67.
100 At the time of Ms Teoh’s most recent report dated 22 August 2018,[94] the plaintiff had been receiving regular physiotherapy since 7 March 2018 for his lower back, cervical spine and left shoulder symptoms, and was also attending unsupervised hydrotherapy. She noted that his attempt to return to work in March 2018 had failed, and concluded that the plaintiff was totally and permanently incapacitated for all employment due to his symptoms. She opined that physiotherapy once per week/fortnight as well as hydrotherapy twice per week was necessary to keep the plaintiff functioning at “an optimal level”.[95]
[94]PCB, p 90.
[95]PCB, pp 94-95.
101 On 4 October 2018, Dr Clayton Thomas reported[96] that the plaintiff presented with diffuse and widespread tenderness and with limited neck and lumbar spine movements and bilateral shoulder pain. He presented as “markedly disabled” and Dr Thomas diagnosed a diffuse and widespread pain syndrome. Dr Thomas discussed with the plaintiff the possibility to swap to multidisciplinary pain management, but the plaintiff wished to continue seeing his psychologist and physiotherapist. Dr Thomas felt that interventional pain management techniques were unlikely to produce lasting benefit and did not consider that epidural injections or spinal cord stimulator would assist him. He concluded that the plaintiff permanently had no work capacity.
[96]PCB, p 96.
102 On 11 October 2018, Mr Stephen Doig, orthopaedic surgeon, reported[97] a history from the plaintiff that after the transport accident the plaintiff was sore everywhere but mostly in his shoulders, neck and low back. Mr Doig noted the long past history of low back pain with physiotherapy since 2002. Mr Doig considered that in the transport accident the plaintiff had suffered an aggravation of pre-existing symptomatic lumbar spondylosis, aggravation of pre-existing asymptomatic cervical spondylosis, a minor aggravation of right shoulder rotator cuff injury, and probable traumatic left subacromial bursitis. In spite of the complaint of sciatic pain, Mr Doig found minimal signs of sciatica. However, if the plaintiff had continued severe leg pain, then in future surgery may need to be considered. Mr Doig noted that after returning to work on modified duties 25 hours per week the plaintiff’s condition had deteriorated to the point where he had several falls in April 2018 which precipitated a cessation of work. Mr Doig felt that his prognosis was guarded, that the plaintiff was currently not capable of any work, but may be capable of light work in the future.
[97]PCB, p 98.
103 On 22 October 2018, Mr Ales Aliashkevich, neurosurgeon, reported[98] his agreement with Mr Malham that the transport accident was “a materially contributing factors (sic) to a significant exacerbation of a pre-existing degenerative condition of the cervical and lumbo-sacral spine”, and his agreement with Dr Thomas that the plaintiff’s pain (neck, back, bilateral shoulder and left leg) had evolved into a chronic pain syndrome. He felt that the plaintiff was permanently incapacitated for all employment due to his pain, failed response to conservative treatment, functional limitations, age, level of education, work experience and limited transferrable skills. He recommended further investigations as well as engagement in a pain management program and ongoing therapies of various kinds.
[98]PCB, p 111.
104 On 18 June 2019, Mr Aliashkevich reported[99] that on review the plaintiff presented with a number of conditions, including chronic low back pain, left leg pain, chronic neck, bilateral shoulder, arm and hand pain. He diagnosed multilevel cervical spondylosis, and multilevel lumbar spondylosis, against a background of a history of “multiple work-related injuries, including back injury on 28/8/2009 and the motor vehicle accident on 9/11/2015.” He also diagnosed central sensitisation and depression. He repeated the conclusion previously expressed that he agreed with the diagnoses of Mr Malham and Mr Thomas that, as a result of the transport accident, the plaintiff suffered an aggravation of pre-existing degenerative conditions of the lumbosacral and cervical spines as well as injury to the left shoulder and that his conditions had evolved into a chronic pain syndrome.
[99]PCB, p 113.
105 He considered that if the transport accident had not occurred, the plaintiff would likely have been able to continue working full-time on unrestricted duties for some time despite his chronic back problems. However, he doubted that he would have been able to work “reliably, consistently and productively until retirement”.[100] He noted that the plaintiff ceased work in Easter 2018 because his neck, back and left foot became unbearable. He opined that the multiple work-related back injuries, the consequences of the transport accident, and chronic progressive degenerative disease “contributed more or less equally to his incapacity for work”.[101]
[100]PCB, p 117.
[101]PCB, p 117.
106 On 21 June 2019, Dr Kilner Brasier, occupational physician, reported[102] in relation to the sequelae of the 2015 transport accident, receiving a complaint from the plaintiff of constant headaches, constant neck pain, constant pain and restriction of movement in both shoulders, and, in relation to his lower back, constant pain with intermittent radiation to the left leg, reduced sensation in that leg and weakness. The pain was aggravated by driving, sitting, bending, twisting and walking for long periods of time. Dr Brasier concluded, in answer to specific questions with were not tendered the following:
[102]PCB, p 118.
7. In answer to your specific questions
1. In my opinion the injuries/conditions Mr Rhodes has suffered are consistent with the stated causes;
2. In my opinion Mr Rhodes has no realistic capacity for work on a consistent, reliable and permanent basis when considering age, education, skills and work experience, place of residence, medical information, any occupational rehabilitation services provided effects of medication and incapacity and restrictions.
a. In respect of his back injury alone I also opine Mr Rhodes has no realistic capacity for work as above;
b. In respect of his realistic capacity for work, absent the 9 November 2015 transport accident I also opine Mr Rhodes has no realistic capacity for work as above.
107 On 31 July 2019, Dr Brasier provided a supplementary report[103] in which he repeated the same conclusions referred to above.
[103]PCB, p 123.
Legal principles
108 The plaintiff bears the onus of establishing that each of the 2009 back injury and the 2012 right shoulder injury, without regard to any of the plaintiff’s pre-existing medical conditions or subsequent injuries as a result of the 2015 transport accident, constitutes a serious injury.
109 Given that the plaintiff has pre-existing medical conditions and supervening injuries, my task is to identify the consequences properly referable to each of the 2009 back injury and the 2012 right shoulder injury, and to exclude the consequences referable to the subsequent transport accident related injury, and to make findings about all of the pain and suffering and, where relevant, loss of earning capacity consequences which are operative at the date of trial.[104]
[104]Peak Engineering & Anor v McKenzie [2014] VSCA 67, [2] and [24].
110 To the extent that each of the 2009 back injury and the 2012 right shoulder injury constitutes the aggravation of a pre-existing condition, the plaintiff must establish what injury was caused by each of the 2009 back injury and the 2012 right shoulder injury. An analysis must be made of the extent of impairment of a body function before and after each of the 2009 back injury and the 2012 right shoulder injury, and the additional impairment must involve serious long term impairment of a body function.[105]
[105]Petkovski v Galletti [1994] 1 VR 436.
111 To the extent that there have been successive injuries to the same body part, for example, the back, the Court cannot aggregate the injuries to that body part across several incidents.[106]
[106]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198, [72]; AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309.
112 Injury to one shoulder cannot be combined with an injury at another time to the other shoulder; that is, each shoulder injury gives rise to an impairment of a different body function.[107]
[107]Ibid. See, also, Lexa v Transport Accident Commission [2019] VSCA 123, [48] referring to Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249.
113 When assessing the loss of earning capacity consequences of the 2009 back injury, the Court must identify the contribution made by other medical conditions (such as the left shoulder, neck and psychological conditions resulting from the 2015 transport accident) and exclude the consequences flowing from those other medical conditions from the assessment of whether the plaintiff suffers from a serious injury as a result of either the 2009 back injury or the 2012 right shoulder injury.[108]
[108]Shock Records Pty Ltd & Anor v Jones [2006] VSCA 180, [69].
114 In this case, when examining the consequences of the claimed serious injuries (to the back and to the right shoulder respectively), the court is bound to look at how they affected the plaintiff as he was and would likely have been absent the injuries he subsequently sustained in the 2015 transport accident. This process involves look at and considering the effect (and likely effect in the future) of the plaintiff’s pre-existing injuries. If the evidence is too sparse to permit that task to be performed, that is a matter for which responsibility lies with the plaintiff or his legal advisors.[109]
[109]Bezzina v Phi & Anor [2012] VSCA 161, [23].
Findings and reasons
115 I found the plaintiff to be a straightforward witness. He had limited recall of events and the restrictions flowing from the injuries to the various parts of his body over the years, and particularly before 2009. This has made my task more difficult. I have therefore paid careful attention to the medical evidence relied upon by the parties.
116 The weight of the recent expert evidence (from Ms Teoh, Dr Thomas, Mr Aliashkevich, Dr Brasier) is to the effect that the plaintiff permanently has no work capacity (due to injuries to body parts including, but not limited to, the right shoulder and lumbar spine) and I accept that, as at the date of the hearing, that is the case.
Right shoulder application
117 On the material before me, I find that in March 2012 the plaintiff suffered a right shoulder injury which was successfully treated with surgery but left him with some pain and restriction of right shoulder movement. I also find that in the 2015 transport accident he suffered an aggravation of his right shoulder symptomatology.
118 I turn first to consider whether the plaintiff has adequately identified and disentangled the consequences of the 2012 right shoulder injury from the subsequent aggravation suffered in the 2015 transport accident.
119 I note that Mr Lyons commented in his report dated 16 August 2017 that he had not been asked to comment on the plaintiff’s right shoulder injury.[110]
[110]PCB, p 39.
120 In her reports dated 20 November 2017, 31 January 2018 and 22 August 2018, Ms Teoh failed to distinguish between the 2012 right shoulder injury and the aggravation of that injury in the transport accident. The medical certificates she provided referred to all the injuries suffered by the plaintiff and do not distinguish which of them caused the certified incapacity.
121 In his reports dated 11 August 2017 and 12 January 2018, Dr Leow focused on the 2015 transport accident related injuries and did not address the 2012 right shoulder injury at all.
122 Mr Aliashkevich[111] and Dr Brasier[112] did not identify the consequences attributable to the 2012 right shoulder injury alone; nor did either of them separate the consequences of the right shoulder injury from the consequences of the back injury. In addition, neither of them distinguished between injury parts and compensable events.
[111]PCB, p 101 and p 113.
[112]PCB, p 118.
123 However, even if I accept that it is possible to disentangle the consequences of the 2012 right shoulder injury, and even accepting the plaintiff’s evidence that he had some right shoulder discomfort and limitation in above shoulder activity after that 2012 injury, I am unable to be satisfied that the consequences of the 2012 right shoulder injury, taken alone, can be fairly described as being more than significant or marked, and at least very considerable, for a number of reasons.
124 The plaintiff confirmed in cross-examination that the limitations and consequences suffered by him were those set out in the right shoulder affidavit.[113] That affidavit fails to identify any impairment of social, recreational or domestic activities. Moreover, the paucity of consequences outlined in that affidavit stand in marked contrast to the sequelae deposed to in the transport accident affidavit, to which I have referred at paragraphs 37-40 above. In the transport accident affidavit, the plaintiff deposed to having had some pain and some problems with above shoulder activity prior to the transport accident, after that accident he had worse and constant right shoulder pain and even less movement in the right shoulder.
[113]T42:20-27.
125 Second, the plaintiff agreed at the hearing that he told Mr Lyons in August 2017 that after right shoulder surgery his right shoulder had settled, leaving him with minor residual discomfort, which he was able to manage.[114]
[114]T65:2-13.
126 Third, the plaintiff deposed to being able to manage his symptoms without ongoing medication or treatment other than physiotherapy, which ceased in respect of the right shoulder on 13 June 2013.[115]
[115]See report of Pamela Teoh dated 22 August 2018 at PCB, p 92.
127 Fourth, there were no attendances to Dr Leow in relation to the right shoulder after surgery until the transport accident.[116] Moreover, there was no complaint to Mr Malham of any significant upper limb pain on 20 April 2016.[117]
[116]DCB, p 133 and T73:9-16.
[117]PCB, p 49.
128 Fifth, after a few months’ convalescence after the right shoulder surgery, the plaintiff gradually returned to work full-time.[118] Mr Lyons provided the plaintiff with a medical certificate dated 1 March 2013 certifying the plaintiff as fit for normal duties in relation to the right shoulder.
[118]T29:28-31.
129 Sixth, while I accept that the plaintiff may have some pain lifting his right arm above shoulder height, there is little evidence as to what consequences this causes for the plaintiff. In these circumstances, whilst I accept that as a result of the 2012 right shoulder injury the plaintiff suffered, after recovering from surgery, some ongoing discomfort and limitation on above shoulder height use of his right arm, I am not satisfied that he has discharged the onus he bears to establish that these pain and suffering consequences are more than considerable when compared with other cases in the range of impairments of the right upper limb.
130 For these reasons, the application in respect of the right shoulder is dismissed.
Lumbar spine application
131 It was common ground that in August 2009 the plaintiff suffered an aggravation of pre-existing and periodically symptomatic degenerative changes to the lumbar spine.
132 The plaintiff conceded that prior to the 2009 back injury he was limited in twisting his back, in sitting, mowing the lawn, raking leaves, washing the car, sweeping the floor and doing domestic chores. I have detailed above the plaintiff’s extensive pre-2009 history of lumbar spine issues. I note that when the plaintiff saw Mr Malham in 2010, he gave a history of two years worsening lower back pain. This clearly predates the 2009 back injury. The plaintiff had extensive investigations and consultations with specialists between 2003 and May 2008, along with ongoing physiotherapy between 2004 and 2006, and then periods of physiotherapy when he experienced flare ups of back pain in late 2006, early 2007, late 2007 and April 2008.
133 After the 2009 back injury and prior to the transport accident he had regular weekly or twice weekly physiotherapy and, notwithstanding his discomfort, continued to work full-time, albeit without doing any lifting. According to Ms Teoh,[119] the physiotherapy treatment administered in relation to the 2009 back injury was limited to the period between 31 August 2009 and 21 October 2009.
[119]PCB, 91. This was referred to by Ms Teoh as the “eighth episode” of physiotherapy.
134 It was the ninth presentation for physiotherapy, on 27 January 2010, in connection with a further aggravation of lower back symptoms, which sparked investigations and the referral to specialists by Dr Leow.
135 The plaintiff’s own evidence concerning the sequelae of the 2009 back injury, as contained in his affidavit in support of the lumbar spine application, is very limited (and is outlined at paragraphs 37-40 above). This stands in stark contrast to the consequences identified at paragraphs 33 and 35 of the transport accident affidavit. This contrast may partly reflect the plaintiff’s fairly poor memory in relation to the sequelae of the 2009 back injury. It may also partly reflect that the consequences now suffered by the plaintiff are attributable to the transport accident and not the 2009 back injury. In particular, I note that in the transport accident affidavit, the plaintiff stated that at paragraph 7(d), he had not sought specialist treatment for his back for a number of years prior to 2015 and had been having physiotherapy which “helped to keep me active and able to work full-time”.[120]
[120]PCB, 25.
136 In any event, it is clear on the evidence that the plaintiff had trouble twisting his back both before and after the 2009 back injury;[121] did not play sports immediately prior to that injury;[122] had sitting limitations prior to that injury,[123] but was still able to drive to Bendigo;[124] had been restricted in climbing ladders off and on prior to the 2009 injury; had been very limited in raking leaves and limited to only light sweeping prior to the 2009 injury;[125] and by, April 2008, “wasn’t doing anything at home virtually” because of his back.[126] He had to be careful what he did because even doing little things, even little things at home had aggravated his lower back prior to the 2009 injury.[127]
[121]T46:30-31 and T46:1-2.
[122]T47:10-11; 15-16.
[123]T47:17-19.
[124]T60:10-13.
[125]T48:3-4.
[126]T54:10-13.
[127]T54:19-21.
137 As many of the consequences identified in the lumbar spine affidavit existed prior to the 2009 back injury, it is difficult for the Court to discern to what extent, if any, those consequences became worse following the 2009 injury, and, to what extent such worsening, together with the plaintiff’s other evidence and the medical evidence constitutes a serious injury.
138 The medical reports relied on in relation to the lumbar spine application are of limited assistance, for the following reasons.
139 Mr Malham’s 2017 report did not distinguish between the consequences (including work capacity consequences) of the 2009 back injury and the transport accident, and did not refer at all to the plaintiff’s extensive pre-existing back problems which he had recorded in 2010.
140 Dr Leow’s 2017 and 2018 reports focused on the injuries suffered in the transport accident; did not address the 2009 back injury or the plaintiff’s pre-existing back problems in any meaningful way; and did not disentangle the consequences suffered by the plaintiff so as to identify those solely attributable to the 2009 back injury.
141 Dr Verrills’ 2018 report did not disclose a history of back problems prior to September 2009; did not disentangle the consequences of the 2009 back injury from the consequences of the transport accident; and did not disentangle the consequences of the plaintiff’s other medical conditions, such as the neck injury caused by the transport accident.
142 Neither Mr Aliashkevich nor Dr Brasier identified the consequences (including work capacity consequences) attributable to the 2009 back injury alone and without regard to the pre-existing back condition and the transport accident back condition. Neither of them separated the consequences of the back injury from the consequences of the right shoulder injury. Neither distinguished between injury parts and compensable events. Dr Brasier did not explain how he reached his conclusions. In particular, Dr Brasier’s conclusion to the effect that the plaintiff had no realistic capacity for work, absent the 2015 transport accident, appears to be based on the sequelae all of the injuries being assessed; that is, the headaches, neck pain, shoulder pain, low back pain and the restrictions of movement in the neck and both shoulders.
143 Further, Mr Aliashkevich provided a somewhat contradictory conclusion: stating that the plaintiff would be likely able to continue working full-time on unrestricted duties for some time despite his chronic back problems if the transport accident had not occurred; then subsequently stating that absent the transport accident the plaintiff has no realistic capacity for work until retirement.
144 Doing the best I can on the material before me, I consider that as a result of the 2009 back injury, the plaintiff suffered an aggravation of his pre-existing and often symptomatic degenerative lumbar spine. I accept that as a result of the 2009 back injury the plaintiff suffered pain, was limited in lifting at work, and needed physiotherapy for two months or so. I note that the ongoing regular physiotherapy occurred in the context of a later episode of aggravation of lumbar spine symptoms in 2010. However, I accept that the need for such ongoing physiotherapy was contributed to by the 2009 back injury. There was little medical treatment provided to the plaintiff in the years 2010-2015. It is by no means clear that the need for surgery proposed by Mr Malham in 2010 was brought on by the 2009 back injury, and the 2009 back injury alone, as opposed to the cumulative effect of all of the plaintiff’s many back injuries up to that time Many of the restrictions deposed to in the lumbar spine affidavit are ones which, on close inspection, were present prior to 2009.
145 Thus, in terms of pain and suffering, while I accept that the sequelae of the 2009 back injury were significant, I am not satisfied, leaving aside the pre-existing problems and the problems which followed the transport accident in 2015, that they were more than considerable when compared with other cases in the range of permanent impairments of the lumbar spine.
146 In terms of loss of earning capacity, for the reasons below I am not satisfied that the 2009 back injury alone has caused the plaintiff to suffer a permanent loss of earning capacity of at least 40%.
147 First, the plaintiff had suffered back pain, restrictions, and required medical treatment prior to the 2009 back injury. As noted above, the medical experts have not disentangled the pre-existing back injury from the 2009 back injury.
148 Second, the plaintiff was working full-time duties until the 2015 transport accident. He had a few days off work in September 2009 but returned to full-time work albeit with self-imposed restrictions on heavy lifting.[128] The plaintiff acknowledged that there were no formal restrictions on his employment, and that he was on normal duties. He again had a few days off work in late January 2010 in relation to the exacerbation of his back pain around that time. Apart from those occasions, and the few months off work after right shoulder surgery in 2012, the plaintiff worked full-time in 2013, 2014 and 2015. In this context, the plaintiff’s evidence[129] as to his ability to have continued working but for the 2009 back injury is speculative and inconsistent with his evidence concerning the sequelae of the transport accident on his lumbar spine.
[128]T60:27-31 and T61:4-7.
[129]T80.26-29 –T81.15-21.
149 Similarly, I consider the plaintiff’s assertion that he would not have been able to continue working after the 2009 back injury is speculative, and inconsistent of his ability to remain in full-time work until November 2015 with minimal treatment. He managed to work full-time between March and November 2015 without any physiotherapy, and only attended one session of physiotherapy in September 2015 before the transport accident. Mr Jones opined in 2015 that physiotherapy was of no efficacy in keeping the plaintiff at work and that he ought to transition to self-management. The plaintiff did not attend upon any surgeons or pain specialists between 2010 and the transport accident. He did not see Dr Leow for back pain after 24 July 2013.
150 Third, it was as a result of the 2015 transport accident that the plaintiff suffered constant back pain with referred pain to the leg, and sensory symptoms in the foot. And it was as a result of the neck, left shoulder, psychological and aggravation of right shoulder and lower back pain in that accident which the plaintiff said, in his transport accident application, meant he struggled to work more than 25 hours per week, and then ceased employment in March 2018. Importantly, the plaintiff’s transport accident application sought a serious injury certificate from the TAC on the basis of both pain and suffering and loss of earnings consequences, which is consistent with the proposition that it was the transport accident that caused the plaintiff’s incapacity for work.
151 Fourth, in March 2015, Mr Jones assessed the need for ongoing physiotherapy but did not identify any other difficulties with the plaintiff remaining at work, and did not opine that the plaintiff’s ability to remain at work had been compromised by the 2009 back injury.
152 Fifth, the medical certificates from Dr Leow[130] certify the plaintiff as incapacitated as a result of numerous injuries, and it is not possible to attribute the incapacity to the 2009 back injury. The plaintiff agreed that the reason for being certified unfit for work by Dr Leow was all of the injuries referred to in the medical certificate dated 28 November 2018.[131]
[130]DCB, p 70-71.
[131]T29:1.
153 Dr Brasier’s report referred to the plaintiff’s spine injury being productive of economic loss, but did not distinguish between the many spinal injuries suffered by the plaintiff.
154 Mr Aliashkevich’s reports did not disentangle the 2009 back injury from the other injuries suffered by the plaintiff, and it is not possible to discern from them whether the 2009 back injury, taken alone, would have been productive of any economic loss.
155 Sixth, there is no evidence before me supporting a conclusion that absent the back injury suffered in the transport accident, the plaintiff would have had to reduce his work hours by reason of the 2009 back injury, nor is there any evidence as to the extent to which the plaintiff’s work hours would have been reduced. In these circumstances, I am unable to be satisfied on the balance of probabilities that the plaintiff would have suffered a loss of earning capacity of at least 40%.
156 Finally, there is no medical evidence to support the assertion that the 2009 back injury created a vulnerability of such magnitude that the transport accident caused an incapacity of serious injury consequences which it would not have caused had the pre-existing condition not been present.
157 It follows that the loss of earning capacity limb of the plaintiff’s lumbar spine application is also dismissed.
Conclusion
158 Each of the plaintiff’s applications is dismissed. I reserve the question of costs.
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