Ristevski v Sleepeezee Bedding Australia Pty Ltd
[2017] VCC 1782
•1 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05182
| Slave Ristevski | Plaintiff |
| v | |
| Sleepeezee Bedding Australia Pty Ltd | First Defendant |
and
Victorian WorkCover Authority Second Defendant
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21-22 November 2017 | |
DATE OF SENTENCE: | 1 December 2017 | |
CASE MAY BE CITED AS: | Ristevski v Sleepeezee Bedding Australia Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1782 | |
REASONS FOR JUDGMENT
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Subject: Common Law
Catchwords: Serious Injury Application
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; Poholke v GoldacresTrading Pty Ltd & Anor [2016] VSCA 232
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr A Hill | John Dellios & Associates |
| For the Defendant | Ms Á Magee QC with Ms C Kusiak | Lander & Rogers |
HER HONOUR:
1 Mr Ristevski applies under s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) for leave to issue proceedings for the recovery of damages for pain and suffering only in relation to an injury to the lumbar spine sustained on 9 September 2004 (‘the 2004 injury’) while working for the defendant as a driver delivering beds.
2 The present application was originally consolidated with an additional application for leave[1] in relation to a second injury to the lumbar spine which occurred on 11 March 2014 while working for the same defendant (‘the 2014 injury’). At the commencement of the hearing, however, counsel for the defendant informed the court of its decision to grant a certificate on both heads in respect of the 2014 injury, leaving only the application for grant of leave in respect of pain and suffering flowing from the 2004 injury for the court’s determination.
[1] Originating Motion CI-17-00682.
3 The defendant accepts that the plaintiff suffered an injury to the lumbar spine in September 2004, but says that the pain and suffering consequences of any impairment to the lumbar spine do not meet the narrative test for serious injury.
4 The defendant says that, on the evidence, the plaintiff has failed to delineate, either at all, or adequately, the impairment consequences of the 2004 injury from the impairment consequences of the 2014 injury. The defendant says that Dr Castle, Associate Professor Love and Dr Slesenger considered that both the 2004 and 2014 injuries contribute to the plaintiff’s current lumbar spine impairment, while Mr Brearley considered that only the 2014 injury contributed to the plaintiff’s current impairment, and Mr O’Brien did not consider the consequences of the 2004 injury. In addition, the defendant relies on the fact that the plaintiff was working full-time doing normal duties between 2011 and 2014, taking no medication and having no active treatment, did not attend an orthopaedic surgeon after 2009 until after the 2014 injury, and that he continued to perform gardening and household chores when he was able. Finally, the defendant submits when one looks at the plaintiff’s condition before and after the 2014 injury, it is clear that the more significant impairment consequences suffered by the plaintiff flow from the 2014 injury rather than the 2004 injury. In this regard, the defendant relies on the plaintiff’s evidence that his overall condition worsened since the 2014 injury: he was able to do fewer things, was unable to play tennis and football with his little grandchildren, was more restricted in his walking, sitting, and driving tolerances, was having poor sleep more often, could no longer cope with his garden, and had to move to a new home with a smaller garden.
Legal principles
5 It was common ground that because two separate compensable injuries have occurred (the 2004 injury and the 2014 injury) as a result of separate incidents, the consequences cannot be accumulated and each injury has to justify the serious injury definition in its own right. It is also common ground that the 2004 injury was one of aggravation of pre-existing but largely asymptomatic degenerative changes in the lumbar spine.
6 The appropriate analysis is that set out in AG Staff Pty Ltd v Filipowicz[2] and Poholke v Goldacres Trading Pty Ltd & Anor[3]. As recast so as to be relevant to the facts of this case, the principles are as follows: The court must first identify the 2004 injury. Then, the court must delineate the impairment consequences of the 2004 injury. Finally, the court must determine whether the 2004 injury, considered separately or independently from the 2014 injury, qualifies, as at the date of the hearing, as a “serious injury” as defined. In doing so, it is appropriate to consider the evidence regarding the extent of the pain and suffering consequences before the 2014 injury. Regard must also be had to the impact of the 2014 injury, at least in terms of pain and suffering.
[2] [2012] VSCA 60 at [30]-[35].
[3] [2016] VSCA 232 at [65]
Background
7 The plaintiff is 60 years old. He was born in Macedonia, educated there to Year 9 or 10, worked in factories, then came to Australia at the age of 23 for five years in 1980, and worked as a machine operator. He returned to Macedonia in about 1986, then came back to Australia in the 1990s. He worked as a machine operator at Visyboard between 1990 and 1997. He commenced work with the defendant in early 1999 as a delivery driver lifting and manoeuvring bulky and heavy mattresses and bases. He had a back problem in 1999 which was short-lived, and was free of symptoms as at the date of the 2004 injury, which occurred on 9 September 2004. On that day, while pulling a bulky and heavy mattress in the truck, he slipped on a step in the floor of the truck and landed heavily on his back. He suffered immediate pain, and on the same day sought medical treatment. The course of his medical treatment is described below.
The 2004 injury
Plaintiff’s evidence
8 The plaintiff swore three affidavits in support of the consolidated applications.[4] His evidence concerning solely the sequelae of the 2004 injury is contained in the first affidavit sworn on 31 May 2013. I have set out the relevant extracts of this affidavit as follows:
[4] Plaintiff’s Court Book (PCB) 1-18G
8.I had been essentially free of back pain and working full-time and [un]restricted duties until I injured myself on 9 September 2004. I was pulling a mattress which was difficult to handle as well as being heavy. Whilst pulling it backwards, I slipped and fell backwards on a hidden step in the floor of the truck. I landed heavily and had immediate pain.
9.Since 9 September 2004 I have not been free of back pain. The pain varies in its severity and is gradually getting worse with the physical manual duties that I continue to perform with the Defendant. The pain is becoming more intense, the flareups becoming more regular and lasting for longer and the pain in my leg is more constant. The number of days I am not able to attend work is increasing.
10.I saw Dr Damian Yong on 9 September 2004. I was given painkilling medication and advised to rest. I remained off work to approximately 20 September 2004 when I returned to work under a return to work plan devised for me by Dr Yong. I was given restricted duties until approximately May 2005 when I returned to full-time employment. There was little light work available to me and I was required to perform heavy work handling mattresses.
11. After my return to work I continued to see Dr Yong because of the persistence of the pain. He referred me to a doctor who specialises in pain management, Dr Paul Verrills.
12.Not only had I been getting back pain, but the pain had gone down my left leg to the foot. When the pain persisted, Dr Verrills arranged for me to have a series of injections into my spine. I think that there were approximately three. I then had further treatment on the nerves in my spine. These treatments provided some relief on a temporary basis, but overall I was left with back pain going into my left leg. My symptoms are made worse if I was involved in heavy lifting or perform activities that place a strain on my back or my leg.
13.After some time the pain in my back started to go into my right leg and I had further injections done by Mr Verrills to try to relieve the pain. I think that he performed the same procedure on the nerves on my right side as he had on the left side. I had also been prescribed painkillers but these did not work and I stopped taking them.
…..
15.I have managed to keep working but I need between approximately 12 to 15 days off work each year because of my injury. As well as handling heavy mattresses, my work required me to sit for long periods of time driving a truck. Sometimes I am required to drive to Adelaide. I find that I have to stop, even on long distances, approximately every hour. I then get out of the truck, walk around and stretch. This helps relieve some of the pain. I am fortunate in that I have an air suspended seat in my truck which cushions me from the bumps whilst driving. From time to time, however, I still feel a spasm of pain when the truck hits a bump.
16.The Defendant is aware of my problems and tries to give me help when I am loading up the truck at the factory. Unfortunately I don’t have a permanent jockey so that when I am unloading and cannot find someone to help me, I do have problems manoeuvring the mattresses which will cause me to suffer increased pain. I am concerned that if my back deteriorates any further, I will not be able to continue in employment. My fear is that because of my age and experience, I will not be able to find suitable employment.
17.I have difficulty standing longer periods. I can walk for about 30 minutes and thereafter the pain will increase. There are times where I have walked for an hour however the pain increases considerably.
18.I suffer more pain at the end of the working day and particularly at the end of the working week. I spend a lot of my time in the evenings and weekends resting and trying not to place a strain on my low back so that I can continue to attend work.
19.I used to be a very good sleeper. I have difficulty falling asleep because of my injury and I am regularly woken by pain. I then have some difficulty getting back to sleep. I frequently wake up stiff and sore in the morning. During the day when I have lost sleep, I feel tired and lacking in energy.
20.The pain I get radiates into either or both legs. It starts at the back and goes into the buttock and down the legs. I sometimes feel pain and the hip joint. I have a garden and depending on how I am feeling on the day I am able to manage some of the tasks. I sometimes mow the lawn and the other times I need my wife to assist me. On other days I am not able to do any lawn mowing or gardening because of my injury. One thing I have found particularly difficult is pruning my trees. I find it difficult standing and getting into a position where I can carry out the pruning. I have on occasions done some digging in the garden for short periods but it usually results in me getting severe pain that evening. I enjoyed attending to watch the local soccer which I did regularly. I rarely attend now as I have difficulty standing or sitting for the entire game. I miss going to the soccer and catching up with my friends. I used to go fishing regularly however I do not go now as I cannot sit through the entire movie without experiencing increased symptoms in my back or legs. My wife and I used to regularly attend social functions including dances, christenings, weddings, balls and parties and enjoyed Macedonian dancing however we now attend functions that we are required to attend such as weddings and christenings as I do not enjoy them as dancing increases my symptoms and I cannot participate as much as I would like and as others do. I do not like being unable to do things and I have pushed myself on occasions doing more than I should. It results in me suffering pain which causes me not to be able to go to work the following day. It is difficult for me to accept that I cannot do certain activities that place a stress on my back when I want to or for as long as I want.
9 In his second affidavit, (sworn on 12 October 2016), the plaintiff further stated, in relation to the 2004 injury, at paragraph 9:
9.Following the swearing of my Affidavit I continued in employment with the defendant as a delivery driver. I continued to suffer the consequences described in my Affidavit. There would be occasions when I would get exacerbations of pain after I had been involved in any heavy lifting. These incidents would usually occur whilst loading trucks which was more difficult than unloading them. Over the last few years I had missed approximately 10 to 12 days from work because of back pain.
10 At the hearing, the plaintiff agreed that between 2006 and the second injury, he was not taking medication because he was told by specialists not to take medication if it did not work. He agreed that, in 2004, he oscillated between regular and modified duties at work due to fluctuations in the condition of his back. He had 1-2 days off work during flare ups. He was certified fit to return to normal full-time duties in early 2006 and thereafter, subject to occasional flare ups, worked full-time with overtime driving, including driving interstate. He said that he had a number of injections and neurotomies between 2006 and 2010, and that these injections and interventions helped his symptoms and allowed him to keep working, but that his doctor’s request in 2011 for funding for further injections was rejected by the defendant’s insurer. He agreed that when he saw a surgeon (Mr Johnson) in 2009 they discussed surgery, but said that the surgeon could not guarantee a successful outcome and so he decided not to have surgery. He agreed that Mr Johnson invited him to return if his condition worsened. He agreed that he travelled to Macedonia in 2010 and said that on the plane journey he had to get up every 40 minutes and walk around the plane to relieve his symptoms. He denied telling Dr Baker in 2012 that he “could do everything” but said that he told him that he was doing what he could in the garden and in the home, when he was able, subject to his back condition. He said that he was able to play tennis and football “sometimes” with his friends’ young children. [5] He agreed that he told Dr Chris Baker in early February 2012[6] that, when truck driving, he “has to stop every hour and get out and walk about for about 10-15 minutes before recommencing”.[7]
Medical Evidence
[5] Transcript of Proceedings, Ristevski v Sleepeezee Bedding Australia Pty Ltd & Anor (County Court of Victoria, CI-13-05182, Judge Davis, 21 November 2017), 29
[6] Defendant’s Court Book (DCB) 22
[7] DCB 22
11 The plaintiff attended Dr Dominic Yong, occupational physician, on 9 September 2004.[8] Dr Yong arranged for a number of investigations and reviewed the plaintiff regularly until early October 2007. When the plaintiff’s condition failed to improve by mid-October 2004, in spite of physiotherapy, medication and modified duties, Dr Yong referred him to an orthopaedic surgeon, Mr Westh, who diagnosed a sprain of the plaintiff’s lower back.[9]
[8] PCB 73-82. Report dated 8 November 2007.
[9] PCB 75
12 On 21 December 2004, CT scan[10] of the lumbar spine showed diffuse posterior disc bulges at L4/5 and L5/S1. The former was reported to have no focal nerve impingement, but the disc bulge at L5/S1 was accompanied by focal foraminal protrusion on the right, displacing and potentially compressing the exiting right L5 nerve root.
[10] PCB 43
13 The plaintiff’s condition appeared to improve in the first few months of 2005, and in May 2005 he returned to full-time employment with restrictions. However, in late May 2005, the plaintiff reported increased back pain radiating to his left leg and was certified unfit to work for a day. He was treated with anti-inflammatories in October 2005 after a further flare up. In early 2006 he was referred for further physiotherapy for a flare up. In May 2006 the plaintiff reported increased left back and left leg pain, and was again treated with anti-inflammatory medication. CT scan[11] on 19 May 2006 showed mild lower lumbar spondylosis with no nerve root impingement demonstrated.
[11] PCB 44
14 Between June 2006-August 2006, the plaintiff reported persisting back and left leg pain. He was referred to musculoskeletal physicians, Dr Brian Lovell and Dr Paul Verrills, who recommended and performed nine diagnostic and therapeutic interventions in the form of sacroiliac joint injections, radiofrequency neurotomies, and medial branch blocks,[12] between mid-August 2006 and early July 2010.
[12] PCB 68
15 Dr Brian Lovell wrote to Dr Yong on 28 June 2006[13] that the plaintiff complained of a recent pattern over the previous 8 months of consistent lower leg/calf pain, which persists on “about 8/10”, is worse at the end of the day, and keeps him awake at night. He was still managing his full-time work as a truck driver but “struggles on doing lifting and has not resorted to light duties at this stage”.[14]
[13] PCB 66
[14] PCB 66
16 The plaintiff was sent by the defendant’s insurer to see Mr Jonathan Hooper, orthopaedic surgeon, on 27 September 2006. Mr Hooper reported[15] that, as a result of the fall onto his back in 2004, the plaintiff suffered an aggravation of pre-existing degenerative changes in the lumbar spine with continued back pain and some leg pain. Mr Hooper noted that although the plaintiff was working, he was unable to do heavy work. Mr Hooper recommended that he should only do work that did not aggravate his back and that otherwise he should maintain his muscle strength, keep his weight under control and not do any activities that cause him discomfort.
[15] DCB 8
17 CT scan[16] on 3 May 2007 showed mild degenerative changes in the discs at L4/5 and L5/S1, with a right-sided foraminal disc herniation at L5/S1 compromising the exiting L5 nerve root.
[16] PCB 46
18 The plaintiff was sent by the defendant’s insurer to see Mr Michael Shannon, orthopaedic surgeon, on 25 July 2009. Mr Shannon reported[17] that the plaintiff had been working on and off since the 2004 injury, that the injections he had undergone had helped his left side pain and that he now complained of right buttock and right leg pain. Mr Shannon considered that his symptoms were consistent with the CT scan findings of 3 May 2007, that he was likely to be suffering irritation of the right L5 nerve root rather than problems with the sacroiliac joint, and that no further sacroiliac joint injections were necessary. Mr Shannon noted that - on the history of his symptoms and absences from work or periods of light duties - the condition had not resolved and that it still contributed to partial incapacity for work and the need for treatment services. He concluded that the plaintiff “has a significant risk of further aggravating his back if he continues in this employment and it may be reasonable to consider alternate duties, vocational assessment or retraining.”[18]
[17] DCB 10
[18] DCB 12
19 CT scan[19] on 3 August 2009 showed small right sided disc herniation at the L5/S1 level with significant facet joint degenerative changes on the left, and mild disc bulging at L4/5.
[19] PCB 47
20 On 11 October 2009, the plaintiff saw Mr Michael Johnson, orthopaedic surgeon, on referral from his general practitioner, Dr Lamba. Mr Johnson reported[20] a history from the plaintiff of “moderate trouble for a number of years”, and Mr Johnson arranged for an MRI scan and follow up appointment.
[20] PCB 99
21 MRI of the lumbar spine[21] on 13 October 2009 showed: mild lumbar spondylosis without canal stenosis; mild moderate right L4/5 foraminal stenosis secondary to mild broad based disc bulge with right facet hypertrophy which contacts the right L4 nerve root within the foramen; and L5/S1 facet degenerative changes moderate on the right and severe on the left with mild bilateral foraminal stenosis.
[21] PCB 48-49
22 Mr Johnson reviewed the plaintiff on 21 October 2009 and reported[22] that the MRI findings suggested, inter alia, the possibility of the S1 nerve root being compressed in the lateral recess. He noted that the plaintiff’s major complaint was of right leg pain extending into the calf, but felt that the MRI did not show a specific abnormality that explained the right leg symptoms. He discussed the possibility of surgical treatment with the plaintiff but noted that the plaintiff was not keen to proceed. Mr Johnson told the plaintiff he could return if the situation worsened.
[22] PCB 100
23 On 9 July 2010, the plaintiff underwent a right sacroiliac joint radiofrequency neurotomy on the right L5/S1/2/3 discs.
24 On 23 February 2011, MRI of the lumbo-sacral spine[23] showed desiccation of the L4/5 disc with a focal disc bulge towards the right subarticular recess and far lateral recess where there is a possible compromise of both the exiting right L4 and right L5 nerve roots. There was also moderate facet arthrosis at the L5-S1 level.
[23] PCB 52
25 On 10 February 2012, Dr Chris Baker, occupational physician, assessed the plaintiff’s work capacity at the request of the defendant’s insurer. Dr Baker reported[24] a history from the plaintiff that he was working full-time in normal duties, but that every so often he had a flare up of symptoms, such that he was having about 20 days off per year due to his back. In spite of the injections to his back, the plaintiff told him his back was still a problem, the same as it was in 2004, but that his condition fluctuated.[25] At times of increased pain, there was back pain down the left side to the left leg, and sometimes pain into the right leg. He reported being able to shower, dress and put on shoes and socks. He reported difficulty with toenails and poor sleep. Dr Baker did not consider that surgery was required and recommended continued conservative treatment, particularly spine muscle strengthening. Dr Baker also recommended that the plaintiff obtain assistance at work when loading and unloading heavy and bulky items.
[24] DCB 21
[25] DCB 22
26 Dr Baker concluded that:
The original work-related injury has resolved and he has underlying, degenerative changes but, by the nature of his work, it is not possible to state there have not been minor work-related aggravations over the period of time as he lifts and moves bed bases and mattresses, which are heavy and bulky.[26]
[26] PCB 26
…
I do not consider that the original injury dated 9 September 2004 is continuing, however, this does not mean that he is not suffering work-related aggravations….when undertaking his normal duties.[27]
[27] PCB 27
27 The plaintiff returned to see Dr Lamba on 3 June 2012 complaining of lower back pain and right leg pain. Dr Lamba reported[28] that the plaintiff was working full-time but was intermittently unable to work due to his pain and required ongoing medical and other services to continue working full-time and managing his life.
[28] PCB 58. Report dated 8 June 2012.
28 On 7 November 2012, the plaintiff saw Dr David Fish, occupational physician, for an impairment assessment, at the request of the defendant’s insurer. Dr Fish noted in his report[29] receiving the following complaints from the plaintiff:
[29] DCB 16
Mr Ristevski said that since then he has had constant low back pain, which is better or worse on some days. It radiates into the left and/or right legs from time to time. He is subject to flare ups and said that over the last 6 months he had had about 15 to 16 days off due to flare ups. He said that he no longer receives any significant treatment as he found that all of the treatment that he received was of no help.
He complains of constant low back pain, which radiates into either leg with numbness throughout the entire leg. He says that he feels weak in the right leg. He says that nothing can flare it up but has noticed that excessive pulling, pushing or lifting causes it although he continues at normal work.
He says that standing for 15 minutes can increase the pain and walking on the flat is variable in its aggravation from 30 minutes to 3 hours.
He finds that jolting from the truck can increase the pain. Occasionally his sleep is disturbed by pain. He generally wakes with a stiff back.
…
He said that over the years, he has received tablets and injections and I note that he has had treatment from both Drs Lovell and Verrills. He said that he had multiple injections over time but found that none of them really helped. He also had 2 or 3 episodes of physiotherapy of about 3 months each time and said it was no better.
…He is on no current treatment. He rests when he gets a flare up.
29 Dr Fish concluded that the plaintiff was suffering from aggravation of lumbar disc degeneration and lumbar spondylosis but without clinical evidence of radiculopathy relevant to the accepted lower back injury.[30]
[30] DCB 17
30 On 19 December 2012, the defendant’s insurers accepted liability for an injury to the back and notified him of his entitlement to impairment benefits.[31]
[31] PCB 233-242
31 On 5 April 2013, Mr Michael Troy examined the plaintiff at the request of the defendant’s insurers. In his report,[32] he described the plaintiff’s “present complaints” in the following terms:
He can sit in a chair for about half an hour when there is pain in his right and left lower back. Standing in one spot he can do for about ten minutes and the pain is in his back, and it can even go to his toes. He states he is walking all day at work. At the end of the day his lower back and legs are tired and painful. Coughing and sneezing causes him pain in his back. Bending is worse in extension. It is worse getting out of bed. He can sleep on his back for a short time.
[32] DCB 29
32 Mr Troy noted that the plaintiff was not taking any medication, nor having any physiotherapy. The plaintiff told him that he was working and would take 2-3 days off if his back was painful. He mowed his lawn. He was unable to do anything else. He did not play sport.
33 Between 2004 and 2014, Dr Lamba provided a number of certificates of incapacity and of fitness to return to modified and/or restricted duties, both part-time and full-time.
The 2014 injury
Plaintiff’s evidence
34 In his second and third affidavits,[33] the plaintiff focused on the sequelae of the 2014 injury. These may be summarised as follows. He had physiotherapy, medication and some injections (in June 2014). None of these modalities gave him any relief and he ceased them all. He discussed surgical options with Mr Johnson but did not wish to have surgery because of his concern about the risks of an adverse outcome. He returned to light duties but was not very productive and spent a lot of time resting and was not surprised when his employment was terminated on 3 September 2014. The Medical Panel determined on 9 September 2016 that he permanently had no work capacity due to his injury. He felt that his back “has been much worse” since the 2014 injury.[34] He can only stand for 5 to 10 minutes, walk for 15 to 20 minutes, sit or drive for 30-40 minutes. He can only reduce his pain by lying flat. He reads the Macedonian papers, takes a number of short walks, and watches television. He cannot do any work in the garden, whereas prior to the 2014 injury he “could do a bit of gardening work by doing a bit and then resting. I now do not do anything.”[35] He cannot assist his wife with any housework. He occasionally goes shopping with her but can only manage light loads. His sleep is severely affected and he wakes a number of times most nights because of stiffness and pain. He finds it difficult to keep his legs still in one position, and constantly moves in the bed.[36] Whereas prior to 2014 he was occasionally able to go to the soccer, he now avoids it.[37] He tries to avoid family functions and this upsets him. His pain causes him problems in physical intimacy with his wife, and makes him irritable. Before 2014, he missed work from time to time due to his leg and back pain. After 2014, his pain and limitations have increased.
[33] See PCB 7-18G
[34] PCB 13
[35] PCB 14
[36] PCB 14
[37] PCB 8
35 In his third affidavit, the plaintiff confirmed the restrictions listed above. He noted that he has moved to a smaller house with a smaller garden. He is limited in what he can do in the garden and has other people look after it. He needs help with the vegetable patch. It upsets him that he cannot play with his grandchildren as he would like.
Medico-legal reports
36 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff on 2 July 2014 at the request of the defendant’s solicitors. His report does not specify whether he was provided with any radiological or medical material concerning the 2004 injury. He reported[38] that the plaintiff gave the following history in relation to the sequelae of the 2004 injury:
Mr Ristevski stated that he did continue to experience some low back pain which he did report fluctuated significantly in severity…the pain was aggravated by any significant activity and would then be associated with pain which radiated to the right buttock and into the posterior aspect of the thigh and generally into the knee. Very occasionally the patient reported some pain in the left leg…the pain was frequently aggravated by a very busy day at work and at the end of the day the patient stated he would often find that he was dragging his right leg. Despite this however the patient in fact reported that he did continue with his normal work which involved delivering mattresses.
[38] DCB 40
37 Mr O’Brien considered that the plaintiff’s longstanding symptomatic pathology was aggravated by work in 2004 and then again in 2014. He noted that prior to the 2014 injury “the patient was having some difficulty undertaking his normal duties.”[39] He was not optimistic that the plaintiff would return to employment involving regular heavy lifting.
[39] DCB 42
38 Mr Kenneth Brearley examined the plaintiff on 9 December 2015 at the request of his solicitors. He took a history of the 2004 and 2014 injuries. He concluded[40] that in the 2004 injury the plaintiff suffered work-related aggravation of pre-existing degenerative changes in the lower lumbar spine with encroachment on the L5 nerve root and impingement causing predominantly right sided leg pain. He concluded that, in the 2014 injury, the plaintiff suffered a further work-related aggravation of the pre-existing degenerative changes at the L4/5 and L5/S1 levels. He noted that the 2014 injury caused the plaintiff to be permanently incapacitated for all work. He felt that no further treatment was required for either injury. He opined that the 2004 injury “will not cause ongoing pain and problems”, and that the consequences of that injury would not be permanent, but that the 2014 injury “certainly will cause ongoing pain in the long-term” and that its effects “will continue for the foreseeable future.”[41]
[40] PCB 110-111
[41] PCB 113
39 On 15 December 2015, Associate Professor Bruce Love, orthopaedic surgeon, examined the plaintiff at the request of his solicitors. Mr Love reported[42] that the 2004 injury was a work-related aggravation of an underlying degenerative condition of the lumbar spine, and that the 2014 injury was a further work-related exacerbation of the 2004 injury.[43] Mr Love concluded that the 2014 injury caused the plaintiff to be incapacitated indefinitely for any employment. He stated that the need for further treatment “relates to the injuries of both the first and second events”, and that “the consequences of the first and second injury are likely to continue for the foreseeable future.”[44]
[42] PCB 122
[43] PCB 124
[44] PCB 125
40 Dr Charles Castle, occupational physician, assessed the plaintiff on 9 November 2016 at the request of his solicitor and reported[45] on 30 January 2016 that the 2004 injury, which he described as “moderately severe”[46] was likely a work-related aggravation of multilevel disc degeneration at L4/5 and L5/S1. He considered it likely that the fall caused the disc bulge at L4/5 and L5/S1. He noted that prior to the 2014 injury the plaintiff had problems with occasional days off work. He considered that the 2014 work-related low back injury was a further aggravation of his previous injury, but that no new pathology developed. He considered that the 2014 injury caused the plaintiff to be totally incapacitated for all work for the foreseeable future.
[45] PCB 129
[46] PCB 133
41 Dr Castle considered that, as the “pathological effects of the two injuries are identical”, it is impossible to distinguish whether further treatment is related to the 2004 or 2014 injury. [47] However, Dr Castle considered that the plaintiff is still suffering the consequences of the 2004 injury,[48] and that he will continue to suffer the effects of both injuries for the foreseeable future. He considered that the 2004 injury continues to cause the plaintiff pain and that this “will continue on a long-term basis”[49] and that the same is true of the 2014 injury. He stated that he found it “arbitrary” to attempt to assess the effects of the 2004 injury on social, domestic and recreational activities as distinct from the effects of the 2014 injury but that, in any event, each of the injuries restricts the plaintiff in relation to social domestic and recreational activities, and will do so permanently. He felt that in relation to each of the 2004 and 2014 injuries, the plaintiff’s prognosis was guarded, and that he would either remain the same or “there may be a gradual further deterioration”.[50]
[47] PCB 134
[48] PCB 135
[49] PCB 135
[50] PCB 135
42 Dr Castle disagreed with the opinion of Mr Troy and insisted that the effects of the 2004 and the 2014 injuries have not resolved, but rather, the effects of the 2014 injury are “cumulative with the first”.[51]
[51] PCB 136
43 Mr Kevin Siu, neurosurgeon, examined the plaintiff on 22 February 2016 at the request of the defendant’s solicitors. He opined[52] that the plaintiff suffered work-related exacerbations of his lumbar spondylosis in 2004 and 2014, that given the passage of time, his current presentation was no longer work-related, but that it was doubtful that he could ever return to his pre-injury duties.
[52] DCB 47
44 Associate Professor Boffa, occupational physician, examined the plaintiff in November 2016 at the request of the defendant’s insurer. He was not provided with material relating to the 2004 injury. He noted[53] the 2004 injury after which the plaintiff was on light duties for an extended period, and continued to have intermittent low back and lower limb pain, resuming normal duties well before 2014. He concluded that, due to the 2014 injury, the plaintiff was permanently unfit for normal duties but was fit for part-time alternative duties.
[53] DCB 60
45 On 5 May 2017, after re-examining the plaintiff, Mr Brearley provided a further report which concluded that the plaintiff was permanently incapacitated for further employment because of his virtually constant pain and reduced sitting, walking and standing tolerances.[54] Mr Brearley noted that the plaintiff was restricted in his social, domestic, recreational and employment activities after the 2004 injury[55] but that he was more restricted or precluded in these activities after the 2014 injury. He concluded:
The prognosis for the first work injury is not good. It is the basis on which the second work injury occurred. However, had the second work injury not occurred, it is probably that the preclusions and restrictions would have been less severe. It is the second work injury especially which is continuing to cause ongoing problems.[56]
[54] PCB 119
[55] PCB 121
[56] PCB 121
46 On 9 May 2017, Mr Love re-examined the plaintiff and confirmed[57] his opinion that the plaintiff had no capacity for full-time or part-time suitable employment.
[57] PCB 127
47 On 23 May 2017, Dr Joseph Slesenger, occupational physician, examined the plaintiff at the request of his solicitor. He reported[58] that the 2004 injury was a work-related aggravation of pre-existing degenerative disease of the lumbar spine, and that the 2014 injury was a work-related aggravation of symptomatic degenerative disease of the lumbar spine. Dr Slesenger considered that the plaintiff’s lumbar spine symptoms are due to a combination of the 2004 injury, the general occupational demands of his work over 15 years, and the 2014 injury. He considered that had the 2014 injury not occurred, the plaintiff would possibly have been able to continue working. He considered that the plaintiff had no work capacity as a result of the 2014 injury. He was unable to distinguish between the treatment requirements flowing separately from the 2004 and 2014 injuries as the requirements would be the same. He considered that the “first incident symptoms are likely to have continued independent of the second incident occurring”[59] and that the “second incident has caused an aggravation of these symptoms which are likely to continue for the foreseeable future”.[60] In relation to pain, he felt that, taking the 2004 injury alone, any ongoing impairment was at least “partially related” to the 2004 injury, “and partially related to the ongoing work exposures (manual handling and vibratory forces)”. He considered that had “the second incident not occurred, it is likely Mr Ristevski would have had ongoing symptoms.”[61] He concluded, in relation to the 2004 injury:
With regard to the first incident, I note the length of Mr Ristevski’s impairment (over a decade) and I note his limited response to treatment. I anticipate that had the incident of 2014 not occurred, he would have had ongoing lumbar spinal symptoms with radicular symptoms and these are likely to have continued in the foreseeable future.[62]
[58] PCB 137
[59] PCB 150
[60] PCB 150
[61] PCB 150
[62] PCB 151
48 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff on 31 October 2017 at the request of the defendant’s solicitors.[63] He was provided with radiological and treatment details concerning both the 2004 and 2014 injuries, and with some medical reports concerning the 2014 injury. He took a history of the 2004 injury to the effect that, in the years after that injury, the plaintiff had periods of time off work and underwent a number of injections as well as seeing Mr Johnson. He noted that Mr Johnson recommended conservative treatment because the MRI of 2009 showed disc pathology but no clearly defined nerve root compression. He also took a history in relation to the aftermath of the 2014 injury, after which the plaintiff was unable to return to normal duties. He worked in alternative duties (sitting at a table, identifying and correcting faults in mattresses) until September 2014 when those duties were withdrawn by his employer. He had seen Mr Johnson in 2015, and had a steroid injection which provided little relief. Prolonged physiotherapy aggravated his symptoms. Swimming did not help. Surgery had been discussed but as there were no guarantees of improvement the plaintiff was unwilling to go ahead. His symptoms were worsening. He was suffering from constant pain, and was unable do domestic chores. He could not read or write English.
[63] See DCB 65A-I
49 Mr Simm concluded[64] that, at work on 9 September 2004, the plaintiff suffered “some degree of damage to the compromised structures in the spine”; that continued work was responsible for the significant aggravation suffered on 11 March 2014. He felt that the 2014 aggravation had not resolved, but that in all the circumstances, the plaintiff was unlikely to be able to work again.
[64] DCB 65G
50 Mr Troy re-examined the plaintiff on 23 January 2015 and reported[65] that both the 2004 and 2014 injuries were aggravations of pre-existing degenerative changes. As he had done in 2013 in related to the 2004 injury, Mr Troy opined that the 2014 work-related injury had “resolved”. However, he considered that the plaintiff was permanently incapable of performing his pre-injury duties but capable of alternative, suitable employment.
[65] DCB 34
Findings and reasons
51 No credit issues were raised against the plaintiff. There was no mention in any of the medical material of any amplification by the plaintiff of his symptoms. I found the plaintiff to be a very straightforward witness. I consider that the plaintiff has displayed considerable stoicism in the face of his lumbar spine symptoms, because he was well aware of his poor education, poor English and work history in manual occupations. There is general agreement in the medical reports that the 2004 injury comprised a work-related aggravation of pre-existing largely asymptomatic degenerative changes in the lumbar spine, particularly at L4/5 and L5/S1.
52 Having considered the contemporaneous records, reports and evidence to which I have referred at paragraphs 7-33 above, I am satisfied that, after the 2004 injury the plaintiff, suffered persisting low back and leg pain. He tried a number of treatment modalities including physiotherapy, medication, a series of cortisone injections and other similar interventions, all without long-term relief of his symptoms, which persisted. His evidence as to his pain and restrictions flowing from this injury was largely unchallenged and was completely consistent with what he told the many doctors to whom he was sent. I accept his evidence without reservation. In 2006, Mr Hooper opined that the plaintiff should only perform work duties that did not aggravate his back and leg pain and should not undertake any other activities that caused him discomfort . In 2009, Mr Shannon flagged that the plaintiff was at significant risk of further aggravation if he kept working as he was. In 2009, surgery was discussed but discounted by the plaintiff who did not want to risk it. By late 2012, the defendant had accepted the plaintiff’s claim for impairment benefits in relation to the 2004 back injury.
53 Mr Love, Dr Castle and Dr Slesenger each opined that the symptoms suffered as a result of the 2004 accident were likely to be permanent. I reject the opinions of Mr Troy and Mr Siu who concluded that the 2004 injury had resolved by the time of their reports, as they did not set out the basis upon which they reached their conclusion, and which fly in the face of the plaintiff’s evidence. Mr Siu also opined that the 2014 injury is no longer work-related. This part of his opinion is clearly inconsistent with the defendant’s decision to grant a certificate in respect of the 2014 injury, and therefore I put his report to one side.
54 Mr Brearley concluded that the plaintiff suffered some restrictions after the 2004 injury but was more restricted, particularly in relation to work capacity, after the 2014 injury. All of the medico-legal specialists, apart from Mr Troy and Mr Siu, considered that the 2004 injury had immediate ongoing effects and that it continued to play a part in the incapacity flowing from the 2014 injury.
55 I accept that, after the 2014 injury, the plaintiff suffered a further exacerbation of his lumbar spine symptoms, lost his capacity to perform his pre-injury or any suitable employment, and suffered further restrictions in his activities, as outlined in paragraph 34 above. Nonetheless, on the evidence, I consider that all of the pain and suffering sequelae of which he currently complains were well and truly present and entrenched as permanent consequences of the 2004 injury.
56 Taking into account all of the material tendered, and considering the consequences of impairment flowing from the 2004 injury alone, I am satisfied that the pain and suffering consequences of the 2004 injury are more than considerable when compared with other cases in the range of permanent impairments of the lumbar spine.
Conclusion
57 Leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect of the injury to the lumbar spine suffered on 9 September 2004 while working for the defendant.
58 I will hear from counsel in relation to the appropriate form of orders.
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