Riga v Victorian WorkCover Authority
[2015] VCC 270
•27 January 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-11-06272
| MAURICE RIGA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23, 24 July 2014 | |
DATE OF JUDGMENT: | 27 January 2015 | |
CASE MAY BE CITED AS: | Riga v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 270 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Industrial accident – Single incident in 2003 – Knee injury in 2001 resulting in earlier application to commence pain and suffering proceedings – Assessment of relevant consequences – Impact on capacity to earn – Burden of proof
Legislation Cited: Accident Compensation Act 1985 s134AB
Cases Cited:Peak Engineering v McKenzie [2014] VSCA 67
Judgment: The application for leave be dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M X Carey with Ms K J Moran | Arnold Thomas Becker |
| For the Defendant | Ms J M Forbes | Thomson Geer |
HIS HONOUR:
Introduction
1 Mr Maurice Riga had worked for Battmans Insulating Services Pty Ltd (“the employer”) for just on fifteen years as a machine operator when he suffered an injury to his back on 30 May 2003. On that day, at about 3.40pm, he was loading 12‑kilogram bags of “Hydra Mulch”, in the back of a truck when he felt back pain.
2 The plaintiff claims he informed his employer, Mr Scott Rankin, “about the back pain as soon as I could. I had to go early.”[1] The back injury sustained on that day and its consequences have led to the present application for leave being made. The plaintiff seeks leave to commence common law proceedings for damages in respect of both pecuniary loss and pain and suffering.
[1]Exhibit A, page 19 at [16], PCB
3 The defendant opposes the grant of leave, and relies to a large extent on the plaintiff’s failure to separate the consequences of an earlier knee injury suffered in 2001. This earlier injury led to an application being made to this court in 2009. That injury was also suffered in the course of the plaintiff’s employment with the current employer. The plaintiff was unsuccessful in that application.[2]
[2][2009] VCC 826
4 The defendant placed considerable reliance upon the recent authority of Peak Engineering v McKenzie,[3] and argued that the plaintiff’s incapacity for employment and permanent level of pain and suffering results from a constellation of injuries and conditions and could not be relevantly said to flow as a consequence from the back injury in 2003.
[3][2014] VSCA 67
5 The plaintiff was the only witness required for cross-examination, although numerous medical reports and other documents were tendered in evidence before me. The plaintiff had sworn three affidavits in support of his application, and a further affidavit relating to his earlier claim was put into evidence by the defendant. There was no affidavit sworn by any representative of the employer.
The lay evidence
6 The affidavit material relied upon by the plaintiff can be summarised as follows:
· The plaintiff is currently fifty-four years of age (forty-three at the date of sustaining his back injury).
· His education was limited due to a problem with literacy, although he did complete Year 10.
· He was diagnosed with schizophrenia in 1991 which has resulted in two stays for several weeks in a psychiatric hospital and an ongoing need for medication.
· The plaintiff worked in a range of manual labouring occupations and was in fairly continuous employment prior to commencing with the employer in 1998. His longest continuous period of employment prior to that time was approximately five years.
· The work with the employer involved the manufacture of cellulose insulation products, “It’s really paper fluff which they make and pack into bags”.[4] His work involved helping to load trucks, stack bags and similar tasks.
[4]Exhibit A, page 17
· The plaintiff had been involved in a motorcycle accident in 1979 suffering a knee injury which persisted for some years, although he did work as a garbage truck runner immediately before commencing with the employer.
· The plaintiff suffered an injury to his knee with the employer in August 2001. This resulted in two bouts of surgery and considerable ongoing conservative treatment. He returned to work on restricted duties in about November 2001.
· In February 2003 a WorkCover doctor told him he could return to normal pre-injury duties. He believed he could not do these duties but continued to work with some difficulties because “I couldn’t get Dr Nguyen to properly listen to me about the pain I experienced”.[5]
[5]Exhibit A, page 19
· On 30 May 2003, while standing in the back of a truck stacking bags of insulation, he suffered sudden back pain while twisting and turning. The pain extended into the right hip, upper part of the right leg and the groin area, as well as the back.
· The plaintiff reported the pain to his employer, Scott Rankin, and had to leave early. He tried to see Dr Nguyen but ended up seeing a different doctor at the Stud Road Clinic in Dandenong. He eventually started to see a Dr Wang regularly.
· He initially had minimal time off work and had some medical tests done during June 2003. Matters apparently came to a head on 17 June 2003 when Mr Rankin, and a Mr John Williamson, “refused to allow me to do any work and refused to allow me to put in a WorkCover claim and then sent me out of John’s office to go home”.[6]
[6]Exhibit A, page 20
· The plaintiff’s employment was terminated effectively from 16 June 2003, although he maintained, “I was not resigning and that I never wanted to resign. I said I had no problems with work prior to the back injury”.[7]
[7]Exhibit A, page 20
· The plaintiff continued with conservative treatment under the care principally of Dr Wang from about November 2003. Dr Wang was his treating doctor until he moved to Bendigo in late 2008.
· After the employer terminated his position, in June 2003, he has done very little work, attempting various jobs lasting from a few days to approximately two months.
· The plaintiff has continued to have back pain since 2003, “Any sort of work or activity can cause it to become very severe and I then have to stop whatever I am doing and rest. I use medication to help ease the pain”.[8]
[8]Exhibit A, page 22
· The plaintiff attempted an alcohol and gaming course at the Bendigo TAFE but his difficulty standing for lengthy periods became a significant issue.
· The plaintiff continues to suffer from pain in his right knee and right groin thigh and tingling in the fingers of his left hand.
· He had earned approximately $600 gross per week when working for the employer. He has done little work since that time and “I haven’t worked much at all since about 2008”.[9]
[9]Exhibit A, page 22
· Mr Riga swore a second and quite detailed further affidavit on 27 November 2012. Although it differs in minor detail from the material set out in the initial affidavit, it deposes essentially to the plaintiff’s problems in relation to any employment after being dismissed by the employer and concludes with the plaintiff describing his lower back as follows:
“Every day I still get constant niggling aches and pains sometimes sharp often depending on how I move, bend, twist, tilt, sit and stand and at times try to move, sometimes at the end of a move. Sometimes flashes of pain extend to a bit higher in the right lower back or towards the right, rear waist. Sometimes they niggle and/or flash while I walk and sometimes they cause a sort of limp.”[10]
[10]Exhibit A, page 32
7 Based on this 2012 affidavit the reader is left in little doubt that the back injury was relatively constant and particularly disabling, especially in the case of a person who has literacy problems, suffers from schizophrenia and has only worked in manual labouring-type activities.
8 The plaintiff swore a third affidavit on 9 July 2014. Once again the emphasis of this affidavit was on the inability of the plaintiff to attempt any productive occupation for which he was suited on the basis of the ongoing problems stemming from his low back injury. The plaintiff described difficulties with taking strong medication and described his treatment as follows:
“I don’t see any doctors for my back problem. I have recently started seeing a physiotherapist at Golden Square Physiotherapy in Bendigo. I take occasional Panadol Osteo for pain but I try to avoid taking all the pills that I used to like Tramal and OxyContin and Endone and Panadeine Forte. I didn’t feel well using all those pills. I used to get hot and cold sweats and I felt out of control. I had trouble thinking properly when I was on those medications. I continued to take medication for schizophrenia.”[11]
[11]Exhibit A, page 35
9 He described limiting his activity in order to control the pain in his back which extends into his right leg. He went on to state:
“I keep trying to increase my activity. Sometimes I have tried to go out and walk around and about more. I have walked for about 20 minutes even though that causes pain. I try to put up with it but after about 20 minutes of walking I feel the back pain increasing and I have to stop.”[12]
[12]Ibid.
10 The totality of the affidavit material relied upon by the plaintiff, if accurate, describes an impairment of a body function to a manual worker of a type that would be disastrous in terms of any ongoing work capacity.
11 The cross-examination of the plaintiff proceeded in a manner to demonstrate that the back injury, if sustained at all, was minor and could not be appropriately distinguished from the other injuries or conditions affecting the plaintiff’s retained capacity.
12 I noted in particular the following matters from the cross-examination of the plaintiff:
·Since last giving evidence in 2009 the plaintiff had given up significant painkilling medication and was now taking only an occasional Panadol Osteo.[13]
[13]Transcript (“T”) 24, L18-24
·He was only seeing a physiotherapist and no doctors for his back problem.[14]
[14]T24, L29-31
·The plaintiff was taking less painkilling medication because he was less active.[15]
[15]T26, L2-4
·In 2009 he did not say to the Court that the consequences of his back injury were significant as he believed the Court case was not about his back.[16]
[16]T26, L15-17
·The knee still annoys him and still hurts.[17]
[17]T26, L22-23
·In an affidavit in 2007, Mr Riga had stated he had occasional pain in his lower back. He was referred to Mr Byrne for:
“the multitude of pains I was getting from my knee to my lower back and groin and hip”.[18]
[18]T29, L29-31
·Mr Riga stated the 2007 affidavit was about the knee injury and not his back.[19]
[19]T30, L23-25
·The plaintiff denied having hip or groin pain prior to the back injury in 2003.[20]
[20]T31, L13-16 and L25-28
·Mr Riga denied changing the history of groin and thigh pain given to Mr King in medico‑legal appointments in 2009 and 2012.[21]
[21]T32, L17 – T33, L10
·After the knee injury the plaintiff did not return to work as a cellulose plant operator with the employer.
“I only tried it twice after the knee injury.”[22]
[22]T34, L3-7
·After the knee injury, Mr Riga returned to what he described as normal work, loading and unloading trucks, operating the foil plant.
“I was doing the same work as other workers there.”[23]
[23]T35, L1-7
·Mr Riga agreed he would probably have difficulties doing the pre-injury job due to his knee injury and the requirement to trample the bags of insulation.[24]
[24]T38, L7-10
·After seeing Dr Silver in early 2003, the plaintiff’s duties were changed. “They got me to handle 12 kilo bags loading trucks and unloading trucks in factory 9.”[25]
[25]T43, L1-5
·The back injury was sustained on a Friday. Mr Riga could not remember if he had worked full hours on the following Monday and Tuesday.[26]
[26]T44, L5-6
·Mr Riga filled out his WorkCover claim form for his back injury on 20 June 2003 because:
“They just wouldn’t give me any work.”[27]
[27]T45, L2-7
·Dr Nguyen would not write him a WorkCover certificate.
“He wasn’t interested … I don’t know what his agenda was, but he wasn’t interested in helping me.”[28]
[28]T46, L9-12
·After ceasing work on 30 May 2003, the plaintiff did not work on 4, 5 or 6 May and ceased work after 12 May.[29]
[29]T49, L17-24
·Dr Nappally was the first doctor to give Mr Riga a WorkCover certificate.[30]
[30]T50, L30-31
·Mr Riga was working handling 12 kilogram bags whilst on light duties from mid-2002. He was loading and unloading 200 bags per day.[31]
[31]T52, L9-21
·When looking for work, as at May 2005, Mr Riga was telling people that he had a “gammy leg”.[32]
[32]T57, L2-17
·The plaintiff agreed that one of the post-injury jobs cutting rags, driving the forklift and stacking pallets, lasting for somewhere between four and six months, was ceased not because he could not do the work but because he was not getting paid.[33]
[33]T58, L21-29
·He ceased doing the part time pizza delivery job in 2007 mainly because of his hips and lower back. When pressed as to an earlier answer given in 2009, he maintained that he had ceased mainly because of the lower back and hip pains.[34]
[34]T59, L5-21
·He agreed with evidence he had given in 2009:
“Q:You’d agree it was your back injury that stopped you working in 2003, wouldn’t you?---
A:No, it was all of my injuries.”
To this proposition Mr Riga stated:
“Well, the back is included.”[35]
·Mr Riga disagreed with the proposition that his problems for the next couple of years following 2003 were more associated with his hip and groin rather than his back.[36]
·Mr Riga agreed that he might have worked for a couple of days at Albion Powder Coating and then a couple of days at Aussie Ice in 2006.[37]
[35]T60, L2-5
[36]T65, L18-23
[37]T68, L23-29
13 The cross-examination of Mr Riga canvassed numerous extracts from medical records dating from late 2006. The puttage of these matters was entirely correct and Ms Forbes, who appeared on behalf of the defendant, did so with efficiency and accuracy.
14 In light of the binding authorities concerning the role a court plays in the assessment of consequences from a particular injury said to be serious, it would ordinarily be prudent to set out the extracts from the medical history that were put to the plaintiff and his responses to them.
15 It is not practical to do so in this case as Mr Riga frequently responded to matters of puttage with answers such as, “Sorry, I can’t remember”; “I don’t know what his records hold” and “If you say so.”[38]
[38]T69, L12-16
16 The evidence before me revealed a reluctance by Mr Riga to accept that as a proposition he had a considerable amount of treatment still related to the ongoing problems from his knee at least up until 2008 or thereabouts. When the specific proposition was put to him that:
“Any problems that you had from 2003 for the next couple of years were really more associated with your hip and your groin rather than your back.”
Mr Riga responded:
“They included my back, definitely included my back and my buttock and my thighs.”[39]
[39]T65, L18-23
17 Mr Riga agreed in cross-examination that the only treating specialist he had consulted in respect of his back, hip, thigh and groin was Mr Byrne.[40]
[40]T66, L12-15.
18 Mr Riga did not accept that the history recorded by Mr Byrne in 2007 or the general practitioner’s records accurately recorded the course of his pain. In relation to these matters, he responded:
“I definitely get lower back pain since the incident when I was loading the truck, definitely including buttock and hip, and thigh and groin.”[41]
[41]T67, L26-28
19 The cross-examination concerning the histories continued to demonstrate the failure of Mr Riga to accurately record with his treating doctors the symptoms of which he now complains:
“Mr Riga described his back pain becoming worse whilst working for Domino’s Pizza in about July 2007.”
“A:It sort of all built up in about a month. About the last month I worked there it all built up.
Q:What do you mean by that?---
A:It was becoming more frequent. The pain was becoming more constant.
Q:So this was in 2007?---
A:Yes.
Q:Yet at that time you’re making a serious injury application that ignores your back which has been getting worse and focuses only on your knee. Why is that?---
A:I didn’t focus only on my knee. I mentioned my back whenever it hurt which was frequent. I don’t know why they failed to write it down, but as I mentioned, why have an MRI for lower back if I wasn’t complaining about symptoms from it.”[42]
[42]T73, L3-29
20 The plaintiff was again taken to the medical records and referred to a note made by his general practitioner, Dr Wang, on 20 May 2008 showing:
“He has right hip pain for many years since working injury 2001. The pain is getting worse.”
In response to this, the plaintiff stated:
“No, right hip pain since 2003.”
Mr Riga was challenged as to the MRI scan performed on his hip in May 2008 which noted:
“The orthopaedic surgeon was – given injection for the hip. Ineffective.”
It was suggested the injection had been into the hip. Mr Riga responded:
“No, they gave me an injection into the lower back.”[43]
[43]T73, L30 – T74, L26
21 The cross-examination continued as to aspects of seeking employment since Mr Riga had moved to Bendigo. He stated that he had tried to go metal detecting (presumably for gold) but:
“I couldn’t stand the pain of moving it left to right. It just hurt my back too much so I couldn’t do that either.”[44]
[44]T75, L26-28
22 Mr Riga agreed that he could not return to heavy vehicle driving because of the condition of schizophrenia. He had seen Dr Rahman shortly before the hearing and:
“I got a letter from Vic Roads about the licence, medical, and he didn’t tick heavy licence.”[45]
Mr Riga had not done any work since moving to Bendigo.
[45]T77, L12-13
23 The final passage of cross-examination concerning potential employments did not reveal any change in Mr Riga’s position that he could not return to any employment principally because of his inability to sit or stand for any extended period:
“Depending on how I lean forward, I get a sharp pain in my lower back also. It’s just random pains in the lower back, whether I’m twisting or bending or leaning or standing or sitting.”[46]
[46]T81, L7-10
24 Mr Riga was re-examined and described an incident causing a flare up with his knee whilst playing with his nephews around Christmas of 2002. Following that time, he was given a further period of light duties. He maintained that during 2003, whilst working in the foil plant, he was doing some cutting and was involved in loading duties and working by himself.[47]
[47]T84, L23 – T85, L4
The medical evidence
25 The plaintiff relied upon numerous medical reports from both treating practitioners and medico-legal consultants dating back to a CT scan taken on 1 August 2003 at the request of Dr Nappally from the Stud Road Medical Centre in Dandenong.[48] There is no report from Dr Nappally forming part of the plaintiff’s material nor any report from Dr Nguyen who had treated Mr Riga at the time of his knee injury in 2001. There are some four reports from Dr Xao Wang from the same practice provided to the plaintiff’s solicitors between 20 November 2005 and 4 November 2009.[49] In Dr Wang’s most recent report in 2009 he describes the clinical diagnosis concerning the back injury as follows:
“Low back injury with recurrent low back pain which is radiating to right hip and thigh followed low back injured on 30/05/2003.”[50]
[48]Exhibit A, page 39
[49]Exhibit A, pages 42–88
[50]Exhibit A, page 87
26 He refers also in that same report to a diagnosis concerning the pain affecting the right hip, buttock, groin and thigh as follows:
“The pain recurrent onset after injury of 07/08/2001 and become more severe and frequency recently.”[51]
[51]Ibid
27 Earlier in that report, Dr Wang states:
“The clinic symptoms of low back pain are mixed with his right hip and knee injury, Mr Riga low back pain is likely related to his second injury, in my opinion.”
28 For completeness I should note that Dr Wang expresses an opinion as to the plaintiff’s work capacity at the date of his most recent report. He did not believe the plaintiff was fit to return to work as a cellulose plant operator, but may be able to do part-time light duties. Dr Wang gives an example of two to four hours per day, three days per week, “then increase the workload according his coping”. He also referred to significant weight restrictions and restrictions on repetitive bending or twisting the hip or low back. Further restrictions relate to problems with the left elbow and arm which cannot be considered in this application.
29 Dr Wang’s opinion regards the pain as fluctuating but permanent, and regards the future as uncertain, stating:
“Mr Riga may become a complete disability and never return to workforce again with prolonged unemployment.”
30 The plaintiff had been referred by Dr Wang to Mr Patrick Byrne, orthopaedic surgeon, in May 2006. Mr Byrne’s report to the plaintiff’s solicitors dated 23 October 2008 was tendered in evidence.[52] Mr Byrne notes that the plaintiff was referred to him regarding a painful right knee on 29 May 2006. In the history he refers to the knee injury suffered in August 2001 and notes:
“He subsequently underwent an operation to arthroscope his right knee and remove the screws from his distal right femur. Mr Riga stated that the arthroscopy made his right knee pain worse for about four to five months. Since then he had complained of ongoing pain in the right knee distal right femur and right groin.”
[52]Exhibit A, pages 98–101
31 That report continues:
“At the time of my first review he was working doing pizza deliveries. He had been doing this for about two to three months. He stated that even doing these things around the house, eg taking water out to his goldfish, he was complaining of pain in his right groin, right knee and right thigh. He stated that his right groin pain extended into his right testicle. He stated that he could not carry any heavy objects. He found that after standing on his feet for a prolonged period of time he had aching around his right knee joint. The pain was of a diffuse nature.”[53]
[53]Exhibit A, page 98
32 Mr Byrne’s report also refers to investigations performed on the hip, pelvis and knees in May 2007. Mr Byrne’s first note of any complaint of the back pain is recorded on 7 August 2007. At that time he notes:
“In view of the fact he was complaining of back pain and was referred for an MRI scan of his lumbar sacral spine to see if there was any evidence of nerve root compromise or degenerative change. Despite the previous MRI scan findings of a labral tear in his right hip, I did not think this was clinically relevant as he had a full range of movement of his right hip with no reproduction of his pain.”[54]
[54]Exhibit A, page 100
33 Mr Byrne goes on to describe the results of an MRI scan performed in late 2007 showing disc degeneration, and describes the treatment given, including facet joint injections performed on 11 October 2007. He records that these were unsuccessful, and the plaintiff had informed him on 2 November 2007 that the injections actually made his pain worse. Mr Byrne was unsure of the cause of back symptoms, stating:
“The source of his pain still remained a mystery, but I did not feel any further diagnostic injections would be of benefit as they ran the risk of actually aggravating his symptoms.”[55]
[55]Exhibit A, page 101
34 Dr Charles Castle, occupational physician, provided a report to the plaintiff’s solicitors on 16 October 2008.[56] At the time of his examination of the plaintiff in July 2008 he had been provided with a letter of referral from the plaintiff’s solicitors together with some fifty-one further medical enclosures prepared between 1998 and 14 February 2008. Few of these medical reports are in evidence before me, a matter to which I will refer later.
[56]Exhibit A, pages 90–97
35 In dealing with the back injury Dr Castle noted a history consistent with that given by the plaintiff. At the time of his examination the plaintiff was complaining about a pain on the right side of his lower back and a sharp pain in his right groin. His opinion was expressed as follows:
“Maurice has pain in his lower back on the right. He has groin pain. He walks with a limp. He has weakness of his right leg. He has pain in his right knee every day.”[57]
[57]Exhibit A, page 96
36 He went on to consider the capacity for employment, stating:
“His skills and experience have all been as a manual labourer. He is not able to do that type of work now because of his right knee pain, his groin pain, his back pain and his left ulnar nerve lesion.”[58]
[58]Ibid
37 It was not surprising that Dr Castle expressed the following view as to the plaintiff’s employability:
“Mr Riga has marked health limitations. As well as his orthopaedic problems, he has schizophrenia (according to him). That type of illness makes it much more difficult for anybody to find and keep work.
When Mr Riga’s other multiple medical problems are considered (right knee, right groin, back, left ulnar nerve lesion), the chances of him finding employment on the open labour market are very small indeed.”[59]
[59]Ibid
38 Mr Kevin King, orthopaedic surgeon, provided reports dated 5 May 2009, 23 October 2012 and 15 April 2014 which were all received in evidence.[60] Mr King recorded accurately a similar history of the injuries sustained to the plaintiff’s knee and back that were given in evidence in this case. In 2009 in relation to the back Mr King stated:
“He would appear to have sustained acute injuries to one or more of his lumbar discs and associated ligamentous structures at that time and such soft tissue injuries would adequately explain the acute onset of low back pain and the persistence of chronic back pain ever since.”[61]
[60]Exhibit A, pages 102–110, 146–156
[61]Exhibit A, page 108
39 Mr King went on to describe his opinion of the development of secondary osteoarthritis in the right knee joint and damage to the right hip in conjunction with a labral tear. He related these problems to the incident in 2001. Nevertheless, he did state:
“This problem with the right lower limb is compounded by the fact that he has chronic back pain of mild to moderate severity which limits his ability to lift and strain.”
40 Mr King did not regard the left hand as of any particular significance, and did not see any psychological overreaction as being relevant.
41 At the time of Mr King’s second examination he noted a different history in relation to the onset of groin pain, with the plaintiff telling him:
“He had no pain in the right groin until he sustained the injury to his lower back at work on 30.05.03 when lifting a bag of cellulose. He states that the onset of right groin pain coincided exactly with the acute onset of low back pain as he swung this heavy bag on 30 May 2003.”[62]
[62]Exhibit A, page 147
42 In this report he states:
“I have questioned him closely about this and I am prepared to accept that I may have misunderstood the history that he was giving me when I first saw him as he insists that the right groin pain started on 30 May 2003 and dates back to that time.”
Notwithstanding the changed history, Mr King notes:
“It is still my overall impression that it is much more probable that he injured his right hip at the time of the heavy fall on 07.08.01 when he fractured the shaft of his right femur – overall it is much more likely that at that time he sustained transmitted trauma to the shaft of the femur from the right knee and into the right hip joint.”
In providing this opinion, although still preferring the relationship of the right hip problems to the knee injury of 2001, Mr King nevertheless provides an alternative, stating:
“Such a clinical assumption would be also be consistent with an extra twisting strain on an already damaged but symptomless right hip at the time of his low back injury on 30.05.03 precipitating on the onset of symptoms in the right hip. I find it impossible to resolve this small but significant point of dispute but I restate my original view that this man seems to be an earnest, genuine and honest historian.”[63]
[63]Exhibit A, page 150
43 Mr King’s final report prepared in April 2014 was provided to the plaintiff’s solicitors after Mr King had the opportunity to consider clinical reports from Dr Wang and a number of other medical reports including reports from Dr Castle in 2008 and Mr Ian Jones, orthopaedic surgeon, in July 2013.
44 At the time of preparing his most recent report, Mr King noted Mr Riga telling him that there had been a persistence of overall symptoms in the back, right hip and right knee but with some definite improvement “particularly a lessening of the right groin pain and pain in the hip and some lessening of the right knee pain as well.” The back pain was recorded as follows:
“Constant aching pain in the low back region, present day and night, fluctuating in intensity and of mild to moderate severity – 20 per cent improved.”[64]
[64]Exhibit A, page 153
45 In expressing his opinion in 2014, Mr King described the right knee and the development of osteoarthritis as being Mr Riga’s “main residual problems”. In relation to Mr Riga’s back, he stated:
“The later injury to his lower back at work on 30.05.03 resulted in some damage to lumbar discs and associated ligamentous structures, adequately explaining his chronic nagging low back pain which has worried him since then.”[65]
[65]Exhibit A, page 155
46 Mr Riga has also relied upon a medico‑legal opinion from Mr Peter Scott, general surgeon, who provided a report to CGU Insurance on 21 June 2010. Mr Scott also noted a history consistent with the plaintiff’s evidence of sustaining injury to his knee in August 2011 and his back on 30 May 2003. Although the report seems to have been commissioned in relation to the treatment then administered to Mr Riga, it is apparent that Mr Scott regarded the problems suffered by Mr Riga at that time as stemming from a condition of chronic pain.[66] The report does not make any differentiation between the plaintiff’s knee and back as the source of that chronic pain.
[66]Exhibit A, page 115
47 Professor Kenneth Myers provided a report dated 26 March 2012. He made reference to earlier examinations of the plaintiff in 2003 and 2006. No reports relating to those examinations are put into evidence in this application. At the time of the interview of Mr Riga on 19 March 2012, Professor Myers was told:
“His worst disability now is the low back, right hip and right groin. … The problem with his right knee is ‘about the same as it was before when I last saw you – it is sometimes okay but at other times I limp and I can have pain at night.’ He states that he has a constant back ache, worse if he bends, carries, twists or lifts.”[67]
[67]Exhibit A, page 121
48 Professor Myers describes the 2001 injury as:
“causing damage to the right knee consequent on the fracture of the right femur, damage to the right hip and minor damage to the left elbow and left ulnar nerve.”
The 2003 injury is described as follows:
“A twisting injury at work in 2003 causing development of problems in the back.”
He diagnosis this condition as:
“Aggravation of pre-existing previously asymptomatic degenerative intervertebral disc disease in the lumbar spine.”
In terms of prognosis, Professor Myers states:
“There will be progressive development of arthritis within the right knee and probably within the right hip as well as progression of problems relating to degenerative intervertebral disc disease in the lumbar spine.”[68]
[68]Exhibit A, page 123-124
49 Dr David Middleton, consultant in occupational health and rehabilitation, also provided a report to the plaintiff’s solicitors dated 20 April 2012. He had examined Mr Riga shortly prior to that time and once again obtained a history consistent with that given in evidence in relation to both the knee and back injuries. Dr Middleton has extensively reviewed a number of enclosed reports, all of which are in evidence in this case, with the exception of three progress reports by the physiotherapist, Mr Alex Chan, prepared between 31 March 2004 and 1 July 2004. The only note of significance in relation to these “missing” reports is the recording made by Dr Middleton as follows:
“I note that Mr Chan regards the pain in the groin as emanating from the lower back and again, recommends functional restoration program where he is seeking approval for the costs associated with this program.”[69]
[69]Exhibit A, page 137
50 Dr Middleton’s opinion is largely concerned with the functional employment capacity retained by Mr Riga. He describes this as follows:
“Mr Riga now only has a capacity for sedentary, non-manual activities noting the severity of the injury to the right lower limb. Mr Riga needs to avoid any forceful, repetitive, prolonged activities involving the lower back or the right lower limb.”
He regards the capacity as being restricted and variable and sets out suggested limitations of hours and days worked.[70]
[70]Exhibit A, page 139
51 For completeness, I should make some reference to the report from the physiotherapist, Mr Chan, dated 2 March 2004. The history recorded by Mr Chan was as follows:
“Maurice reports that three weeks prior to his lumbar injury, he was experiencing increased right thigh pain.”[71]
[71]Exhibit A, page 40
52 In relation to the source of pain, he stated:
“In summary, Maurice presents following a fractured right femur which he sustained at work in 2001. He also presents with lower lumbar discogenic pain, which is likely to be referring into his thighs. As both injuries are causing pain into his right leg, it is difficult to ascertain the contribution of each injury to his symptoms’ presentation. However, I believe the majority of his groin and thigh symptoms are rising from his lower back.”[72]
[72]Exhibit A, page 41
53 The plaintiff has relied upon two medical reports from Dr Moore at Bendigo Primary Health Care. These reports are dated 6 June 2012 and 26 January 2013. Dr Moore had treated Mr Riga and set out his diagnosis in the course of his first report. He stated:
“Mr Riga suffers from a complex of emotional, psychiatric and medical issues. … His diagnoses include:
·chronic pain … low back, right hip and knee
·schizophrenia
·gastroesophageal reflux
·asthma.”
He regarded Mr Riga’s prognosis as poor, agreeing with Dr Middleton’s assessment. He stated that.
“… [the prognosis] would be poor because of the multiple health issues he has currently, which quite significantly impact on his employability. These factors include his age, previous experience and training, his physical ailments and his chronic pain syndrome as well as a treated psychiatric illness.”[73]
[73]Exhibit A, page 142
54 In his subsequent report he referred again to the complaints of low back pain radiating to the left groin and upper leg. No mention is made in that second report of any specific complaints in relation to the knee. Indeed, much of the report is given to a recording of Mr Riga’s displeasure with his treatment by both doctors and lawyers. Dr Moore states as to diagnosis:
“This still remains the same.
1. schizophrenia
2. chronic low back and groin pain of uncertain origin – previous imaging in 2010 did not reveal any radiological findings which would assist in diagnosis or treatment.”[74]
[74]Exhibit A, page 144
55 The final piece of medical material relied upon by the plaintiff is the report of a CT scan of the lumbosacral spine dated 5 May 2014. This was addressed to Dr Abid Ur Rahman. It contained the following summary from the radiologist:
“Diffusely reduced bone density suggesting underlying osteopaenia or osteoporosis.
Subtle loss of disc height at L3/4.
Subtle broad based posterior disc bulges within the lower lumbar spine.
No focal disc protrusions or extrusions.
Moderate degenerative hypertrophic facet joint change at L4/5 which in conjunction with a broad based posterior disc bulge extending into the inferior recess causes moderate right sided foraminal narrowing which may potentially irritate the exiting right L4 nerve root.
Otherwise, however, no relevant foraminal stenosis or spinal cord stenosis.
No focal disc protrusions or extrusions.”[75]
[75]Exhibit A, page 157-158
56 There is no report from Dr Rahman nor any medico‑legal opinion provided either by the plaintiff or the defendant which post dates that CT scan.
The defendant’s medical material
57 The defendant relied upon reports from Mr Robert Marshall, general surgeon, of 29 July 2003; four reports of Mr Ian Jones, orthopaedic surgeon, between 2 September 2008 and 15 July 2013; and three reports from Dr David Fish, occupational physician, between 2 December 2009 and 23 July 2014.
58 In 2003 Mr Marshall regarded the back injury as resulting in a muscle strain of the back. He described it as a minor injury and regarded the employment as a significant contributing factor. He did not believe the plaintiff was incapacitated when he examined him on the date he prepared the report, which was some two months after the incident.
59 In 2008 when Mr Riga was first examined by Mr Jones, a comprehensive history of the occurrence of the back injury was noted. Mr Jones also noted in that history that:
“The patient reported that in February 2003, he began to notice pain in his right thigh and groin area. Mr Riga stated that this corresponded to the time when increasing demands were being made on both his back and leg with increasing requirement for the patient to engage in physical work.”[76]
[76]Exhibit 1, page 10
60 The history differs from that given in the present case in that he notes that the plaintiff:
“continued to work but by 30 May 2003 the pain in his groin and thigh had reached the stage where he was unable to bend or in fact walk. In short there is not history of one specific event on that day but rather a gradual increase in symptoms presumably over some months.”[77]
[77]Exhibit 1, page 11
61 It is clear from the opinion that Mr Jones did not regard the knee injury of August 2001 as having any relationship to the onset of back, right groin and buttock pain in February 2003. He goes on to say:
“This man’s right knee condition in my opinion causes minimal impact on his day to day activities and enjoyment of life generally. His major incapacitating feature appears to be his unrelated groin and back condition.”[78]
[78]Exhibit 1, page 14
62 Mr Jones went on to describe the back and ongoing right groin symptoms as precluding him from engaging in gainful work.
63 Mr Jones examined Mr Riga again on 30 April 2009 and noted significantly on that occasion:
“The patient made no mention of any back or right hip complaints.”
He went on to say:
“The right hip joint appears to have settled and is clinically normal. In the lumbar spine he has some radiographic evidence of mild degenerative disease but this is apparently asymptomatic.”[79]
[79]Exhibit 1, page 17
64 When examined by Mr Jones on the third occasion on 31 October 2011, the following history was noted:
“The patient reports symptoms of pain in the right knee. He reports that he occasionally requires Panadol Osteo for relief of the pain symptoms. Currently he reports that his level of back pain is much more severe than the pain experienced in the right knee.”
On that occasion the history related to the occurrence of the back injury is recorded as follows:
“He estimated that he was stacking approximately 180 bags which had been loaded onto the back of his truck by a pallet. As he bent over and picked up one of the bags from the pallet and twisted round, he describes reaching up, putting the bag on the stack and experiencing groin and right buttock pain. He ceased work and got off the truck.”[80]
[80]Exhibit 1, page 21
65 Clearly, this is quite a different history from that recorded by Mr Jones in September 2008. In fairness, however, the history recorded by Mr Marshall in July 2003 is quite consistent with the evidence the plaintiff has given in the present case, that is, that on 30 May 2003:
“He lifted one particular bag overhead, turning as he did so to put it on the tray. He developed pain in the midline of his lower back and this has persisted.”[81]
[81]Exhibit 1, page 6
66 Mr Jones examined Mr Riga on a fourth occasion on 10 July 2013. On that occasion, the major complaint was of pain in the lower back with occasional sharp pain in the right groin area. The pain was recorded by Mr Jones as being:
“… minor intermittent right sided mid-lumbar back pain. In addition he complains of a separate intermittent pain in his right groin/hip area. The patient has no complaints in relation to the right knee.”[82]
[82]Exhibit 1, page 30
67 Mr Jones regarded the prognosis in relation to the back as one of:
“… continuing lumbar back ache and continuing stiffness which are likely to deteriorate slowly with the passage of time. In the right knee Mr Riga currently has no particular symptoms”[83]
although Mr Jones felt he had an increased chance of developing osteoarthritis in that joint.
[83]Exhibit 1, page 30
68 The opinion in relation to the back pain was that the effects of aggravation from the injury in 2003 had been minimal and that the permanent impairment in Mr Riga’s lumbar spine is:
“… substantially due to the natural progression of the chronic degenerative disease affecting his lower back. The work injury of 2003 had the capacity to aggravate his back condition but given the length of time since his injury I believe that the impact of his work related condition to be minimal.”[84]
[84]Exhibit 1, page 31
69 The opinion provided by Dr Fish differed significantly from that of Mr Jones. He regarded the back injury as an aggravation of lumbar spondylosis. He thought it unlikely that it would resolve and probably continue into the foreseeable future. His opinion went on:
“He is suffering from aggravation of lumbar spondylosis which has not ceased and is partially due to the nature of his employment in general, the specific incident of 30 May 2003 and constitutional factors. I consider there are no previous employment contributions to this injury and there is no previous injury or back problems.”[85]
[85]Exhibit 1, page 42
70 Dr Fish regarded Mr Riga as having no capacity for his pre-injury employment and stated:
“He requires sedentary employment but it is unlikely to be provided to him on the basis of his previous experience, qualifications and injuries. He does have a permanent incapacity for manual work. That is, given the nature and severity of his injury, his prior education, work experience and abilities, he has no current work capacity.”[86]
[86]Exhibit 1, page 42
71 Finally, in a supplementary report concerning work capacity, Dr Fish opined that he regarded Mr Riga as capable of performing full time work as a road traffic controller or service station attendant. He did not regard him as fit to work as a waste disposal driver or a process worker in the poultry industry. The opinion in relation to working as a service station attendant was guarded insofar as it may have required restocking of fridges or other cabinets.
72 The remaining pieces of medical evidence that were relied upon by the defendant were contained in the clinical notes from Dr Wang which had been provided as part of the Plaintiff’s Court Book.[87] These extracts included an MRI scan of the right knee performed on 4 June 2007 and two letters from Mr Byrne to Dr Wang dated 7 August 2007 and 2 November 2007 referring to complaints by the plaintiff of pain in the lower back, right buttock, groin and thigh.
[87]Exhibit A, pages 63-64, 66 and 67
73 Two further pieces of evidence were relied upon by the defendant. The first was a vocational assessment dated 17 July 2014 prepared by Ms Joanne Bryant, occupational therapist. The second piece of evidence was a transcript of the earlier testimony given by Mr Riga in his earlier application determined by the Court in 2009. The vocational assessment suggests positions of waste disposal driver, road traffic controller, process worker (poultry) and service station attendant as considered as suitable for Mr Riga. In the report prepared by Ms Bryant, I was impressed by the frankness of her opinion:
“It is true that Mr Riga has limited transferrable skills. His mental health issues are of a concern, given his recent hospital admissions, but it seems that his ability to work in the past have not been affected by this.”[88]
[88]Exhibit 1, page 49
74 Dr Fish was the only medical witness to express an opinion and his support for employment was limited to the positions of traffic controller and some aspects of the work as a service station attendant. I will deal with the question of capacity under the head of “Analysis”.
75 The transcript extracts can also be dealt with in the analysis of this application. Suffice it to say that the evidence given generally before the Court in 2009 places significantly more emphasis on the knee than the back. In relation to the work leading up to the back injury, it was suggested to Mr Riga that the surgeon treating him for the knee, Mr McCombe, had suggested that Mr Riga should return to work:
“Q:Is that right?---
A:On light duties. I was only ever back on light duties.”[89]
[89]Exhibit 1, pages 83 L19 – 84, L6
76 The transcript records puttage from the contents of medical reports apparently from the then treating general practitioner, Dr Nguyen; the treating surgeon, Mr McCombe; and a medico‑legal examiner, Dr Silver. None of that material has been put in evidence in this case. I regarded as significant the following extract:
“Q:So the fact of the matter is Dr Nguyen certified you fit for full duties in June 2002?---
A:Yes.
Q:Then you saw Mr Silver in February ’03?---
A:No, over Christmas, I was on the floor playing floor games and using my knee a lot on the floor. I was doing games off a table on the chair, on the floor. My knee started throbbing. It swelled up again. I went back to Dr Nguyen who put me back on light duties. But when I was complaining daily about groin pain starting to come up from my leg, as they were increasing my duties after Dr Silver’s letter … they were increasing my duties.”[90]
[90]Exhibit 1, page 86, L12-24
77 Additionally in relation to the back injury, the following evidence was recorded:
“Q:So you were saying Dr Nguyen didn’t believe you or did he tell you he didn’t believe you about your low back?---
A:Yes, he did. He told me he didn’t believe me about my lower back or hip or groin.
Q:Because in his notes he says you claimed that you had a low back, that you injured it at work?---
A:Well I did, when I was lifting a 12 kilo bag up and over my shoulders to stack it behind my head or above the back of me and as I lifted and twisted the bag, my back got injured. It is only because I was compensating for the knee, I believe.”[91]
[91]Exhibit 1, page 87, L8-17
78 When the plaintiff was asked about the reason he ceased work in 2003, the following evidence was recorded:
“Q:When you went to see Mr King, you gave Mr King a history and indicated that it was your back injury which stopped you working in 2003? You’d agree it was your back injury that stopped you working in 2003, wouldn’t you?---
A:No, it was all of my injuries.
Q:I see. The knee pain you say you have, is it actually in the knee, or is it above the knee, in the leg?---
A:Sometimes it’s in the top half of the knee, sometimes it’s in the leg just above the knee, sometimes it’s just below the groin. It still hurts a lot in one spot, right there.
Q:Where?---
A:From the instant it broke, sir, is right there and there from the instant it broke (indicating on inside and outside of the knee).
Q:You say it still hurts in those places?---
A:Yes if I get a snap when I'm walking and I get a surge of pain it will be there often.”[92]
[92]Exhibit 1, pages 102, L24 – 103, L8
79 For completeness, I should note that the defendant also tendered a letter from Mr Riga addressed to Mr Rankin on 20 June 2003. This concerned giving notice of the back injury on 30 May 2003. I have not found it necessary to consider this letter in determining the issues in this application.
Analysis
80 The plaintiff carries the burden of proving an entitlement to leave in accordance with the statutory framework. The relevance of this is apparent in a case such as the present one where the plaintiff suffers from a variety of discrete injuries and medical conditions, many of which impact upon his capacity for employment and his enjoyment of life.
81 In Peak Engineering v McKenzie[93] the Court of Appeal stated:
“[W]here two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.”[94]
[93][2014] VSCA 67
[94][2014] VSCA 67 at [24]
82 Although the authority in Peak Engineering relates to leave sought for pain and suffering consequences, it nevertheless provides guidance to the assessment of an application relying on the pecuniary loss consequences of an injury. Ultimately the proof required from the plaintiff is to satisfy a court that the pecuniary loss consequences of the injury can be discretely assessed and are not the product of various impairments separately referable to otherwise unrelated injuries or illnesses. In short, injuries must not be aggregated.
83 The plaintiff has previously brought an application for leave based upon the pain and suffering consequences flowing from his 2001 knee injury. That application was unsuccessful, largely because he was unable to satisfy the court of the genesis of the pain and suffering consequences said to amount to a serious injury.
84 In making an assessment of the present application, I have delved into the otherwise unchallenged medical material tendered in evidence in considerable detail in order to make a fair assessment as to whether the plaintiff can be said to have suffered the requisite level of pecuniary loss as a result of his back injury.
85 One of the areas of real dispute in this case concerns the genesis of pain suffered by the plaintiff in his right hip and groin area. The history noted by Mr Jones at the time of his first examination in 2008 was to the effect that the plaintiff had begun to notice pain in his right thigh and groin area in February 2003. Further, the transcript of the 2009 proceeding put into evidence specifically records the plaintiff stating on oath that he believed the pain in his right groin was coming up from his leg over the Christmas period at the end of 2002. There must be considerable doubt as to what in fact was the correct sequence of events.
86 In these circumstances the absence of any report from Dr Nguyen being put into evidence is a matter which I regard as significant. The medical reportage provided from Dr Wang, who was a later treater at the same clinic as Dr Nguyen, provides some support to the plaintiff’s application, in that he states that the plaintiff’s low back pain is likely related to his second injury. This may be the true position in relation to the lower back pain, but I am unable to accept that the pain in the right groin has been a consequence of the back injury in 2003.
87 The opinion of Mr Patrick Byrne following his assessment of the plaintiff in 2001 occurred in circumstances where the plaintiff had told Mr Byrne of ongoing pain in the right knee, distal right femur, and right groin, following an arthroscopy on the knee. The investigations ordered by Mr Byrne in May 2007 concentrated on the hip, pelvis and knees. The complaint of back pain was recorded by Mr Byrne in August of that year, an MRI of the back was ordered, and treatment administered. Nevertheless, Mr Byrne’s opinion set out in his 2008 report concluded:
“The source of his pain still remained a mystery.”[95]
[95]Exhibit A, page 101
88 Mr King seemed to have no issue with the plaintiff being a truthful, genuine and honest historian. Nevertheless, his stated opinion was that the symptoms experienced in the hip were more probably related to the knee injury in 2001 than they were to the back injury in 2003.
89 Having reviewed all of the medical evidence relied upon in this case in considerable detail, I am unable to be satisfied that the symptoms described by the plaintiff as affecting his right hip and groin area are, as a matter of probability, related to the back injury sustained in May 2003.
90 I do accept that the back injury has ongoing consequences for Mr Riga, but I am unable to be satisfied that he has sufficiently established a relevant connection between his back injury and any resultant loss of earning capacity so as to satisfy the statutory requirements.
91 In any event, the evidence concerning his capacity for employment immediately prior to the injury of 30 May 2003 remains somewhat opaque, although on balance I am prepared to accept the plaintiff’s evidence that he was at least capable of performing full hours of employment, although not the full aspects of the duties performed for the employer prior to sustaining his knee injury in 2001.
92 I am fortified in this conclusion by the ongoing complaints relating to the right knee when the plaintiff was referred to Mr Byrne by Dr Wang in 2007.
93 In so far as the plaintiff’s current capacity for employment is concerned, I believe the opinion provided by Ms Joanne Bryant, although largely unchallenged, paints a somewhat rosier picture for the plaintiff than is in fact the case.
94 In practical terms the injuries affecting both the plaintiff’s right knee and low back, together with the symptoms affecting his hip and groin, have effectively destroyed his earning capacity. Regrettably for the plaintiff, I am unable to be affirmatively satisfied of the true level of his capacity shortly prior to his back injury, and there is a distinct lack of clarity as to the cause or causes of his present incapacity.
95 I am satisfied that the back injury still plays a role in the diminution of his incapacity. However, if a proper application of the test applied by the Court of Appeal in Peak Engineering requires a greater degree of disentanglement as to the actual cause of that diminution of earning capacity, then I am not satisfied that the plaintiff has discharged his onus.
96 Precisely the same analysis must be applied in relation to the application for leave in respect of pain and suffering. Once again I have little doubt that the plaintiff suffers ongoing symptoms of pain and suffering which relate to the back injury suffered by him in 2003. On the whole of the evidence I am unable to say to what extent those consequences are excised from the other obvious consequences of pain and suffering produced by his other injuries or medical conditions.
Conclusion
97 This application has been a most difficult one, both for the plaintiff’s legal practitioners to present and for a court to determine. It may have been easier for the court to determine both this and the earlier application had the proceedings been brought at the same time.
98 The legislative requirements place a heavy onus on an applicant seeking leave to commence a common law proceeding. The legislation must be interpreted fairly and in compliance with binding authority. Although there is little doubt that Mr Riga suffers at least very considerable consequences of his separate industrial accidents, impacting greatly upon his earning capacity and his levels of pain and suffering, he has been unable to satisfy me in this application that he is entitled to the leave sought.
99 The application for leave must be dismissed.
100 I will hear the parties in relation to costs and formal orders.
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