Risvanis, Konstantinos v Visypak Operations Pty Ltd
[2009] VCC 1647
•21 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-01782
| Konstantinos Risvanis | Plaintiff |
| v | |
| Visypak Operations Pty Ltd (ACN 094 555 | Defendant |
| 085) |
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| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 & 9 December 2009 |
| DATE OF JUDGMENT: | 21 December 2009 |
| CASE MAY BE CITED AS: | Risvanis, Konstantinos v Visypak Operations Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1647 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – Accident Compensation Act 1985 – s134AB(16)(b) – Pain and Suffering – Permanent serious impairment or loss of a body function – Injury to the lumbar spine
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Dyer | Zaparas Lawyers |
| with Ms N. Wolski | ||
| For the Defendant | Mr C. Miles | Wisewould Mahony |
| HER HONOUR: |
1 The plaintiff seeks leave under section 134AB(16) of the Accident Compensation Act 1985 (“the Act”) to issue proceedings for the recovery of damages for pain and suffering only[1] in respect of an injury to the lumbar spine sustained during the course of his employment as a process worker with the defendant in December 2003. The injury relied upon is an injury to the L5/S1 disc which either prolapsed on or around December 2003 or became symptomatic at that time resulting in persistent left sided sciatica and back pain requiring time off work, treatment with analgesia, and a marked impact on the plaintiff’s daily activities and enjoyment of life.
[1] The application in respect of loss of earning capacity was abandoned at the commencement of the hearing.
2 There is a history of some back pain in the 1980’s with no time off work and a further period of back pain in 1996 for about one month. The plaintiff has also had significant cardiac problems: he suffered heart attacks in 1984, 1999 and 2007, had angioplasty in 2000, stents inserted in late 2007 and a pacemaker inserted in 2008.
3 The plaintiff was born in Greece on 22 August 1945. He had six years schooling and then worked on the family farm. He migrated to Australia in 1964 and has been employed in process work since then. Since 1971, he has worked for a business whose ownership has changed a number of times (it was owned by Southcorp in the late 1990’s and by the defendant since 2002), maintaining and repairing plastic moulding machines and granulators. His work requires using a crow bar, screw drivers and hammers to remove plastic from the machine.
4 There was an incident at work (when the same business was owned by Southcorp) on 4 September 2000 when the plaintiff hurt his back attempting to replace a lid in a granulator. In his affidavits, the plaintiff said he was treated for this injury by the work doctor for about four months and took painkillers.
5 Prior to December 2003, his duties involved looking after twenty plastic moulding machines which made bottles and their associated granulators. Some of his work involved loading the machines with plastic granules, and this required the repeated lifting of 25 kilogram bags of granules into a hopper. He would usually strip and clean about two or three granulators per shift.
6 In early December 2003, according to his affidavit sworn on 16 December 2008, he had to clean five granulators in one day, and experienced back pain which spread into his left leg. He saw Dr Roche at the Bundoora Family Clinic who suggested a CT scan. His pain was such that he had to stop working. He took holidays because he did not want to put in a WorkCover claim, as he feared this might affect his chances of future employment. Dr Roche referred him for physiotherapy, which he attended for about one month. In early January 2004, he was due to return to work but continued to have severe back pain, and saw Dr Ahern at the Bundoora Medical Centre on 12 January 2004. He was put off work and made a WorkCover claim the following day.
7 He saw a neurosurgeon, Mr Thien, in early Febraury 2004, and had an MRI scan. He returned to work on 9 February 2004 on light duties working 15 hours per week, with no significant bending or heavy lifting. These hours were gradually increased to full time, light duties by June 2004. He continued to have back pain but took a day or two off work every few months on holiday or long service leave. He was taking Panadol and Panadeine daily, and Panadeine Forte for a few weeks every second or third month when his back pain was worse.
8 The plaintiff stated that Dr Ahern put him off work for his heart and back problems on 3 December 2007. His doctor advised him to stop taking Panadeine Forte as it was bad for his heart. He takes 2 to 4 Panadol or Panadeine tablets per day. He has constant low back pain usually worse on the left side, which spreads into his left buttock and at times down to his left thigh and heel, with intermittent numbness in the left toes and the sole of his left foot. The pain is increased after prolonged sitting or standing. He tries to walk 30 to 45 minutes per day for his health, but experiences pain. He can drive but not for long periods and takes care getting in and out of the car. He can only lift about 4 kgs without extra back pain. His back pain wakes him several times at night, and his back is very stiff in the morning. He finds it difficult to dry his back, or to use the toilet.
9 Every few months he has a few weeks of increased back pain, when he limits his walking and finds it hard to fully straighten up. At these times, he has to sit or lie down to get his pants and socks on.
10 Up until 2005 he lived alone in the former matrimonial home, but after his back injury in 2003 he found it too difficult to maintain the house, and for the past three years he has been living with his son, daughter in-law and grandson. He used to do all the cooking, cleaning and gardening at his house, and used to grow vegetables all year round. Now, he cannot maintain the smaller vegetable patch at his son’s house, and can only water and weed for a few minutes. He cannot lift his grandson from the ground. Before his 2003 injury he used to go to the Bundoora Hotel twice weekly to socialise and play the pokies, but now he only goes once per fortnight, or not at all if his back pain is worse.
11 In 2008 and 2009 he had three months of physiotherapy, for his heart and his back. As at October 2009, he was taking 2 to 4 Panadol or Panadeine Forte every day, as well as Panadeine Forte around once or twice per month when he has worse back pain.
12 At the hearing, the plaintiff said that his cardiologist told him not to take Panadeine Forte but when the plaintiff reported unbearable back pain he was told he could take it once a month. He said that when he saw Mr Thien his left side was affected. He said that he always has left leg pain, but sometimes he also gets right leg pain as well. He said that his heart condition does not have much of an effect on him but that the back pain has affected him in that he cannot do what he used to do at home, and cannot work. He gave an example of a recent exacerbation of pain suffered when he carried two bags of shopping weighing a total of 6 to 8 kgs. He said by the time he got to the car he was suffering terrible pain and he could not walk, sit or stand. His acute pain symptoms lasted for weeks.
13 In cross-examination, he said that he worked as a foreman for many years doing heavy work before his duties were changed in 2004. He agreed that from September 2000 onwards he had back pain requiring analgesics, as well as left leg pain, and that he suffered periods when back pain would come on suddenly and then settle. He said he did not fill in the WorkCover Claim Form which he signed on 13 January 2004. He said that he worked full time on light duties from mid-2004 until late 2007. He was supervising production, not lifting heavy things, or bending. He insisted that the main reason he stopped work was because he could not handle the back pain, and needed to take painkillers to keep going at work. He did not recall telling Mr Thien that his symptoms were improving in February 2004.
14 The plaintiff was shown extracts of video surveillance taken of him outside his house and at the local park and shops in February 2009.[2] He said his walking looked normal but he was in pain.
[2] The defendant also admitted surveillance of 7 minutes in May, 7 minutes in June and 23 minutes in November 2009.
15 In re-examination, the plaintiff said that before making his claim in January 2004 he had made a WorkCover claim, and had never had more than a few days off at a time for back pain. He said that between 2000 and 2003 he continued to do the full range of heavy work involved in his job, but by late 2003 he was experiencing constant pain at a higher level than before and went to see his doctor, Dr Ahern. He said that the bad pain comes four to five times per year and calms down after a month or so.
16 The defendant says that the plaintiff sustained his lumbar spine injury in September 2000, when he was not employed by the defendant, and that this was probably when the disc prolapse at L5/S1 occurred. In any event, the defendant says that from September 2000 the plaintiff suffered ongoing back pain and the December 2003 episode (which was not reported to any doctors) constituted a minor aggravation or exacerbation only, resulting in only a short time off work and a return to light duties full time with an increase in earnings every year until the plaintiff resigned in 2007. There was little medical treatment from 2004 onwards, and no significant medication prescribed. The defendant says that the plaintiff has not established any significant aggravation in 2003 resulting in permanent impairment or any permanent impairment whose consequences meet the narrative test for pain and suffering, given the plaintiff’s age and general level of activity.
Radiology
17 CT scan of the lumbar spine on 17 December 2003 was reported with the following conclusion:
There is a left paracentral and lateral disc herniation at the L5-S1 level. There is disc bulging and facet joint degeneration at the L3-4 and L4-5 levels with a borderline/mild degree of canal stenosis at the L3-4 level and mild bony narrowing of the nerve root exit foramina bilaterally at the L4-5 level.
18 MRI of the lumbar spine on 6 February 2004 was reported with the following conclusion:
There is a moderate left posterolateral disc prolapse at L5/S1. Degenerative central canal stenosis developing and it is of a mild to moderate degree at L3/4 and mild degree developing at L4/5.
Medical reports
19 The plaintiff’s treating general practitioner at the Bundoora Medical Centre[3], Dr Ahern, certified the plaintiff permanently unfit to work due to lumbar disc injury and ischaemic heart disease on 3 December 2007. Dr Ahern reported on 4 December 2009 that in late 2003, the plaintiff injured his back while at work, causing ongoing lower back pain”. He noted that CT scan revealed a disc herniation at the L5-S1 level, which was “a finding consistent with acute injury”. The plaintiff’s pain persisted and Dr Ahern referred him to Mr Thien, who ordered an MRI scan which confirmed the prolapse. He concluded that the plaintiff was unfit for all work due to his disc prolapse, and that the condition was producing ongoing pain, stiffness and reduction of movement.
[3] The plaintiff has also attended the Bundoora Family Clinic for a number of years.
20 At the hearing, Dr Ahern said that his clinical notes of 5 April 2001 noted a back injury at work on 4 September 2000 and that an entry on 12 April 2001 noted that the plaintiff’s back pain had resolved. He said this episode resolved within a week and did not involve leg pain and said this episode was not related to a prolapsed disc, which would produce leg pain. He made similar comments in relation to entries in March 2003. He said that from that time until 6 December 2003 the plaintiff had made no complaint of back pain to him. He did not know of the plaintiff’s episodes of back pain in the 1980’s and 1996 and 1997 but said that these symptoms reflected degenerative changes to the lumbar spine and were very different to the symptoms produced by the prolapsed disc. He agreed that the entries in December 2003 did not specifically refer to an episode, but understood that his injury occurred at work around that time.
21 Dr Ahern was told of the patient’s evidence that he had back pain and some left leg pain since September 2000. Dr Ahern said that the pattern of his symptoms was very different after December 2003, and that before 2003 his symptoms of periodic episodic pain resolving after a short while would not occur if the problem were a large disc bulge at L5-S1; if the problem had been that disc prolapse, the symptoms would have been much worse from September 2000. He agreed that the plaintiff’s true sciatic symptoms were on the left side, and that there was no confirmed radiculopathy, but said it was common to get some compensatory pain on the other side.
22 The plaintiff’s treating neurosurgeon, Mr Thien, wrote to Dr Nettleton at the Bundoora Medical Clinic on 17 February 2004 noted the MRI results and suggesting that the “symptomatic lesion is probably a left posterolateral disc prolapse at L5-S1”. He noted that he assured the plaintiff that nothing needed to be done if his symptoms were improving.
23 In a report dated 29 October 2008 to the plaintiff’s solicitors, Mr Thien noted a history of a back injury “two years previously”, while “lifting something moderately heavy whilst bending over”[4] and had been experiencing back pain and sciatic pain (mainly on the left side) since then. Mr Thien felt that this could have aggravated or precipitated the disc prolapse at L5-S1 which was confirmed on MRI, and which he felt was the main reason for the plaintiff’s ongoing pain, particularly the sciatic pain which the plaintiff told him was worse on the left compared to the right. On review in February 2004 the plaintiff told Mr Thien that the pain was improving, and it was decided that conservative measures were appropriate. Mr Thien did not see him again.
Medico-legal reports
[4] The plaintiff agreed in cross-examination that he meant September 2000.
24 Dr David Barton, occupational physician, provided a report to the defendant’s insurer on 12 March 2004 in which he noted a history of back problems dating back to September 2000 when he fell while opening the lid of a granulator. He was treated with tablets and returned to normal duties, taking tablets on and off as required. He noted that “during 2003 he noticed increasing back pain with the tablets no longer being particularly effective”, and he had “difficulty handling the pain and decided to take one month’s annual leave”. He returned to work on 5 January 2004 but noticed increasing back pain, then stopped for a month on 12 January 2004. He tried to return to work but at the time he was seen by Dr Barton he had ceased work with increasing lower back pain. Dr Barton noted that the symptoms, although similar, had gradually increased in frequency and severity, and “there have been some further work activities that have aggravated this problem”. Dr Barton concluded that the most recent episode in December 2003 was a “simple recurring problem, related to past employment”, and anticipated that he would be able to return to restricted duties in the near future.
25 Mr Peter Mangos, general surgeon, provided a report to the plaintiff’s solicitors on 2 June 2008 which contains a history which is completely inaccurate. Nonetheless, he also diagnosed a ruptured L5-S1 disc with sciatica and concluded that the plaintiff was permanently incapacitated for all employment.
26 Mr Charles Flanc, vascular surgeon, provided a report dated 7 July 2008 to the plaintiff’s solicitors in which he took a history of a specific episode in “about 2002” (which the plaintiff agreed was in fact in September 2000) and occasional flare ups of back pain since then. Mr Flanc concluded that the degeneration at L5-S1 had been present for some years but became symptomatic as a direct result of the incident. In his second report dated 2 November 2009, Mr Flanc noted that he had the opportunity of reading the plaintiff’s medical file and a number of medical reports. He noted a revised history, that of a specific episode of back pain on 4 September 2000, radiating into his left leg, which was reported to the doctor at the factory and to Dr Ahern. There was a return to light duties and then a return to full-time unrestricted pre-injury duties. Another episode of severe low back pain occurred in 2003, when the plaintiff “had to lift the lids of 5 granulators”. This aggravated his back pain and left leg pain, and although he continued working in 2004, 2005 and 2006, he had to take several months off work because of his back pain. During 2007, he was working full time but avoiding heavy lifting. He reported a “constant background of low back pain and some pain in the left leg”.
27 Mr Flanc concluded that the episode on 4 September 2000
resulted in a significant aggravation of pre-existing disc degeneration of the lumbar spine in the sense that it became symptomatic. It was noted that he had a left sided disc prolapse at the L5-S1 level and it is difficult to know whether it was already present at the time of the incident and was made symptomatic or whether the episode of 2000 initiated this prolapse. In any case he had significant symptoms from that time onwards. He continued to have a background of low back pain with intermittent flare-ups and occasional time off work.
In my opinion his back pain during his employment at Visy and his continuing back pain at present is still materially related to his work at Visy and the particular incident of 4/9/00.
28 . Mr Flanc did not refer at all in his opinion to the 2003 episode back pain. Mr Flanc viewed the video surveillance performed on 6, 8 and 14 February 2009 and noted that the activities performed (walking briskly, getting in and out of a car, carrying a shopping bag in each hand, sweeping rubbish with a broom onto a spade and emptying it into a bin) showed that he appeared to be able to do those activities without any problems, but did not demonstrate any capacity for heavier duties.
29 Mr Michael Shannon, surgeon, provided a report on 12 February 2009 to the defendant’s solicitor. However, the history he obtained is so muddled and so at odds with the evidence in this case that his conclusions are of little assistance. I note, however, that he diagnosed multi-level lumbar disc degeneration with aggravation by employment in the form of a disc prolapse.
30 Mr Peter Dohrmann, neurosurgeon, reported to the plaintiff’s solicitors on 21 September 2009 receiving a history of an incident in 2001 (which the plaintiff agreed was in September 2000) of low back injury, continuing to work, and then a considerable worsening of his lower back pain in 2004 (which the plaintiff agreed was late 2003), after which the plaintiff could not continue working, even on painkillers, for some months. There was a return to work in 2004 on modified duties. He stopped work on the advice of his doctor in late 2007 due to the low back pain and angina.
31 He noted the plaintiff’s report that he finds dressing and driving difficult without analgesics. His ability to perform simple domestic tasks is very limited. He can only pull a few weeds in the garden, and cannot walk for more than 30 minutes without increased back and leg pain. He can no longer do any home maintenance, which he used to do before 2004. Mr Dohrmann felt the activities depicted in the video footage were not inconsistent with the history given to him by the plaintiff. He diagnosed chronic low back pain and referred right leg pain due to chronic disc lesions, particularly at L5-S1 but also at L3-4 and L4-5. He felt that canal stenosis at L3-4 was contributing to the plaintiff’s inability to walk longer distances. He felt that the plaintiff would have had pre- existing lumbar disc degeneration prior to 2000 and that the incident of September 2000 would have aggravated the condition of the lower back.
32 Mr Brownbill, neurosurgeon, reported to the plaintiff’s solicitors on 21 October 2009 receiving a history of a back injury at work while lifting on 4 September 2000, resulting in lower back pain which was treated with physiotherapy and Panadeine Forte. The plaintiff worked on light duties for two months then returned to full normal duties, although the pain never went away completely. In December 2003, Mr Brownbill noted that the plaintiff was “performing repetitive heavy lifting and pushing without any specific accident or injury, the lower back pain gradually increased further and the left leg pain increased”. The plaintiff sought medical treatment and was off work for a few months receiving physiotherapy. He told Mr Brownbill he retired in December 2007 because of his back and leg pain and for his heart. Due to his back symptoms, he can help with only light household chores, cannot dig in the garden, and cannot perform house maintenance activities. His low back pain is present all the time, and often wakes him at night. It is worse after prolonged walking or sitting. The leg pain, on either side, is present most of the time. Mr Brownbill viewed the surveillance material on 6 and 14 February 2009 and found the activities demonstrated by the plaintiff to be consistent with the history provided and the examination findings he made.
33 Mr Brownbill concluded that the radiology demonstrated longstanding, multiple level lumbar spine degenerative changes with intervertebral disc derangement. He considered that the longstanding asymptomatic lumbar spine degenerative changes were “aggravated by the lifting work incident of September 2000 with likely intervertebral disc derangement and further aggravation by the repetitive lifting and twisting activities during late 2003, with ongoing fluctuating back pain and pain in both thighs”. Mr Brownbill considered that although the radiology demonstrated a left prolapse at L5-S1, the plaintiff’s unusual complaint of pain radiating into both legs was explicable by the possibility of tethering of the dura affecting the right nerve root or by the straining which occurs with positioning in the vertical or horizontal position. Mr Brownbill concluded that the aggravation of lumbar spine degenerative changes “was consistent with occurring as a result of his described work activities or September 2000 and of December 2003. He felt that pain would continue indefinitely with associated restrictions in activities. He concluded that the inability to perform desired tasks was of a “moderate to marked degree”.
34 Mr Steven Leitl, orthopaedic surgeon, reported to the plaintiff’s solicitors on 6 November 2009 that he received a history of back pain in September 2000 when he fell onto his buttocks while lifting a lid on a granulator machine, which left him with mild intermittent back pain “that became worse during the end of the 2003 year and without further specific incident”. Over this time, the back pain spread to the buttocks and both legs. He remained at work with the help of tablets but his pain gradually deteriorated. In the past two years, little had changed, except that his back pain would not often wake him from sleep.
35 Mr Leitl concluded that the plaintiff suffered a back injury in September 2000 with worsening of symptoms towards the end of 2003 and with more persistent symptoms thereafter. Mr Leitl viewed surveillance video of the plaintiff on 6, 8 and 14 February 2009 and felt that while the activities demonstrated showed him to be more active than he presented on examination, they were not inconsistent with the nature of his back condition. He concluded that his back condition, an aggravation of lumbar degenerative condition with a left disc prolapse[5] “is due to the workplace duties that he has undertaken as well as the workplace injury of September 2000”.
Legal principles
[5] Mr Leitl stated that the prolapse was at L4-5 but, based on the radiological investigations, I assume he
36 In order to make out a “serious injury” within paragraph (a) of the definition in section 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function whose consequences to him in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function[6], fairly described as being more than significant or marked, and as being at least very considerable.[7]
[6][7] See section 134AB(38)(c) of the Act
37 Decisions as to whether an injury is serious involves elements of fact, degree and value judgement.[8] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[9] On the authorities[10], the proper analysis involves: establishing that the plaintiff suffered compensable injury after 20 October 1999; establishing what that injury was; determining the consequences which the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and determining whether those consequences meet the “very considerable level” in terms of pain and suffering and/or loss of earning capacity.
[8] Fleming v Hutchinson (1991) 66 ALJR 211
[9] See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58]
[10] Ibid, [80]
38 The whole of the evidence before the court should be considered, not just the medical evidence.[11]
[11]39 The psychological or psychiatric consequences of a physical injury are not to be taken into account in an application confined to paragraph (a) of the definition of “serious injury”.[12]
[12]
40 Where the plaintiff relies on impairment comprising the aggravation of a pre- existing condition, the plaintiff must establish that the impairment constituted by the aggravation amounts to a “serious injury”.[13] In case where an injured person has not suffered a frank injury in the conduct of their employment, but relies on the aggravation of a pre-existing condition, it may be difficult, if not impossible, for medical evidence to clarify whether an aggravation of the original injury occurred after the relevant date, or to determine its extent. This is an unfortunate effect of the legislation.[14]
Findings and reasons
[13] Barwon Spinners Pty Ltd & Ors v Podolak [2002]VSCA 33; Petkovski v Galletti (1994) 1 VR 436
[14] Filipovski v Ogemi Services Pty Ltd & Anor [2009] VSCA 230 at [146]
41 I found the plaintiff to be a compelling, understated and straightforward witness and a stoic man. I have viewed the video surveillance material relied on by the defendant and conclude, as did Mr Dohrman and Mr Leitl, that the activities demonstrated therein are consistent with the plaintiff’s account of his pain and restrictions flowing from his back injury. I note that the defendant made admissions concerning other surveillance conducted in May, June and November 2009 and I infer from the failure to tender that evidence at the hearing that it would not have assisted the defendant.
42 The plaintiff’s case is put as one of aggravation in 2003 in compensable circumstances of an injury to the back which occurred on 4 September 2000 (albeit while he was employed by a different employer).
43 The weight of medical and medico-legal opinion (from Mr Dohrmann, Mr Brownbill, Mr Thien, Mr Leitl) is that in September 2000 the plaintiff suffered an aggravation of longstanding pre-existing disc degeneration which had been largely asymptomatic. Mr Brownbill, Mr Leitl and Mr Flanc concluded that it was possible that the prolapse in the L5-S1 disc occurred around that time, or was worsened by that incident.
44 However, I note that although Mr Flanc and Mr Leitl had histories of a worsening of pain in the context of repetitive work activities in December 2003, and Mr Dohrmann referred to a worsening of symptoms after December 2003, none of them specifically addressed the relative contribution of the December 2003 exacerbation to the plaintiff’s symptoms after 2003. Dr Barton, on the other hand, reported in early 2004, receiving a history of incidents in 2000 and 2003, and acknowledged that after late 2003 the plaintiff’s pain was more constant, at a higher level, and prevented him from working. Still, Dr Barton concluded that the 2003 problem was “a simple recurring problem relating to past employment”.
45 If this conclusion refers to employment prior to late 2003, his opinion was echoed by Mr Brownbill, who felt that in late 2003 the plaintiff suffered a further aggravation of his degenerative lumbar spine by repetitive lifting and twisting activities, with ongoing fluctuating pain. Mr Brownbill’s opinion is similar to that of the plaintiff’s longstanding treating doctor, Dr Ahern, who saw the plaintiff in early 2001 and took a history of a back injury at work on 4 September 2000, with a complaint of back pain but no complaint of leg pain. He noted that by 12 April 2001 the plaintiff’s back pain had resolved. I have already referred to his evidence at paragraphs 19 to 21, which is to the effect that in his opinion the symptoms suffered in 2001 were not related to a disc prolapse at L5-S1, but that the prolapse either occurred in late 2003 or produced a set of symptoms (particularly the constant left sided sciatica) around that time. Although Dr Ahern agreed that the entries in the clinical notes in December 2003 did not specifically refer to an episode, he understood that the plaintiff’s injury occurred at work around that time. I consider that Mr Thien’s opinion in early February 2004 that the symptomatic lesion is probably the left-sided disc prolapse at L5-S1, suggests the possibility that in early 2004 the plaintiff was suffering the effects of a recently sustained disc prolapse. His medico-legal opinion, in late 2008, does not include any reference to an exacerbation related to repetitive lifting in late 2003, but merely reports the plaintiff’s history of ongoing pain and sciatica since late 2000.
46 I consider that the opinion of Dr Ahern, who treated the plaintiff consistently from at least early 2001 in relation to his back injury, is to be preferred over much later medico-legal opinions which do not give attention to the change in the pattern of symptoms (particularly the intensity and constancy of the back pain and left leg pain) after December 2003.
47 I am mindful of the fact that the plaintiff agreed that he suffered some back pain and leg pain from September 2000. But it is clear from the medico-legal reports what a poor historian the plaintiff was in relation to the precise unfolding of his symptoms. I note that he was not challenged as to the occurrence in December 2003 of an exacerbation in his back and leg symptoms caused by the repetitive nature of his work duties at that time. That exacerbation is recorded in his treating doctor’s notes. It is consistent with what he told Dr Barton in early 2004.
48 Dr Ahern’s notes from late 2000 to late 2003 relating to complaints of back pain do not record any complaint of leg symptoms prior to December 2003. Moreover, there was no significant back pain reported or recorded after September 2000 and before late December 2003. The plaintiff worked until December 2003 doing unrestricted heavy duties to which, after December 2003, he would never return except in a supervisory role with the full-time help of an assistant. I note that the plaintiff put in his WorkCover claim in January 2004, had a considerable time off work before returning on light duties part- time in February 2004 and that by June 2004 he had returned to full-time light duties but never to his pre-injury duties. Moreover, the fact that he was then allowed to perform the duties of a supervisor with the help of an assistant for the remainder of his period of employment suggests that something of significance occurred in December 2003. Dr Ahern said he believed that the L5-S1 disc prolapse occurred in December 2003
49 On balance, having considered the whole of the evidence, I am therefore satisfied that through the course of employment after August 2002 involving repeated bending and heavy lifting , particularly in or around December 2003, the plaintiff suffered an aggravation of pre-existing degenerative changes to the lumbar spine comprising a prolapse at L5-S1 producing pain and left sided sciatica. According to Dr Ahern and others, the symptoms flowing from the prolapse and the resultant limitations in activities are likely to be permanent.
50 I turn to consideration of the pain and suffering consequences of that aggravation. I accept the plaintiff’s evidence as to the symptoms and restrictions he has suffered since late 2003. I accept Dr Ahern’s evidence that he continues to prescribe Panadeine Forte for the plaintiff. The effect of the plaintiff’s evidence is that he suffers constant lower back pain and constant left leg pain which interfere with his sleep and his daily activities. In addition, about five times per year he suffers acute exacerbations lasting a few weeks each during which he suffers severe pain and much greater interference with his sleep and daily activities. He takes analgesic medication regularly but takes Panadeine Forte whenever the pain is unbearable, notwithstanding his cardiologist’s advice to avoid taking it. After late 2003, he was unable to return to his full unrestricted heavy duties. Due to his lumbar and sciatic symptoms, he was unable to maintain his home and moved in with his son. There, he cannot do much by way of housework or gardening. He cannot lift his grandson. He cannot sit for long periods. He cannot drive for long periods. For around 3 months of the year he suffers severe pain requiring more medication and limiting his activities more greatly. Although he is now 64 years old, in late 2003 he was a vigorous man who did not need to take painkillers just to manage at work, who lived independently and did all his own cooking, gardening and home maintenance. He worked full-time in a heavy occupation.
51 In all the circumstances, I consider that the pain and suffering consequences of his lumbar spine impairment are more than considerable when compared with other cases in the range of impairments of the lumbar spine.
Conclusion
52 Leave is therefore granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering only in respect to the injury to the lumbar spine sustained during the course of his employment with the defendant after August 2002 and particularly in or around December 2003. I reserve the question of costs.
| meant L5-S1. See section 134AB(38)(b) of the Act |
| Sarath Jayatilake v Toyota Motor Corporation Australia Ltd |
Ibid, [85]. See also [2008] VSCA 167 at See section 134AB(38)(h) of the Act
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