Robertson v and K Engineering Pty Ltd
[2018] VCC 1660
•18 October 2018 (in Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-00876
| IAN GEOFFREY ROBERTSON | Plaintiff |
| v | |
| V & K ENGINEERING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 27 September 2018 | |
DATE OF JUDGMENT: | 18 October 2018 (in Melbourne) | |
CASE MAY BE CITED AS: | Robertson v V & K Engineering Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1660 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – lower back injury – paragraph (a) of the definition of serious injury – pain and suffering only – range case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr G B Wicks | Slater and Gordon Ltd Lawyers |
| For the Defendant | Mr P B Jens QC with Mr A Saunders | Minter Ellison |
HIS HONOUR:
1 By way of Originating Motion dated 5 March 2018, Ian Robertson (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for an injury to his low back which occurred over the course of his employment with V & K Engineering Pty Ltd (“the defendant”) from on or about 10 December 2010 until February 2013 and in particular on or about 1 May 2012 (“the injury”).
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering damages” only within the meaning of s134AB(37) of the Act.
3 The plaintiff was the only witness who gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:
“serious injury means –
(a) permanent serious impairment or loss of a body function;
… .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the low back.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the “injury” suffered by him arose out of or in the course or due to the nature of his employment with the defendant on or after 20 October 1999;[3]
(b)the “injury” and the resulting impairment under (a) must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)the “consequences” to the plaintiff of the injury in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of function is:
“… when judged by comparison with other cases in the range of possible impairments … as the case may be … fairly described as being more than significant or marked, and as being at least very considerable.”[5]
This test is sometimes referred to as the “narrative test”.
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[4]See Barwon Spinners Pty Ltd & Ors (op cit) at paragraph [33]
[5]See s134AB(38)(b) and (c) of the Act
8 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of the “injury” for the purpose of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purpose of paragraph (c) of the definition of “serious injury”;[6]
(b)must make the assessment of “serious injury” at the time the application is heard;[7]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[8]
(d)notes that the question of whether an “injury” satisfies the narrative test is largely a question of impression or value judgement.[9]
[6]See s134AB(38)(h) of the Act
[7]See s134AB(38)(i) of the Act
[8]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]
[9]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
9 Senior Counsel for the defendant informed the Court that the proceeding was a “range” case. By that, I understood him to mean that there was no issue that the plaintiff had suffered a compensable low back injury which resulted in some impairment, but the fundamental issue being whether or not the plaintiff satisfied the narrative test.
The evidence of the Plaintiff
10 The plaintiff relies on his affidavits sworn on 30 August 2017 (“the first affidavit”)[10] and on 21 September 1018 (“the second affidavit”).[11] At the commencement of his evidence-in-chief, the plaintiff stated that the contents of his affidavits were “true and correct”.[12]
[10]See exhibit 2 at pages 7-17 PCB
[11]See exhibit 2 at pages 17A-17E PCB
[12]See transcript (“T”) 2, Line (“L”) 12-15
11 The plaintiff also gave evidence that he is a site supervisor by occupation. In his second affidavit, the plaintiff deposes that the week before giving evidence he had a “flare-up” of back pain. In particular, he described how the pain had got worse over the weekend, was bad on Monday and he was still suffering pain on Friday, when he attended the Chambers of his counsel. In particular, the plaintiff described how he anticipated it would improve, and it has improved “vastly” over the ensuing few days.
12 In particular, whereas the plaintiff described himself in his second affidavit as walking with a limp and being bent over, he confirmed in his evidence-in-chief that he can now stand up straight and has a very slight limp, but that was still “improving”.[13] When queried by the Court what, if anything, brings on such condition, the plaintiff responded:
“… sometimes nothing. It can just be brought on. Sometimes general activities, work related, home tasks as well. It varies, Your Honour.”[14]
[13]See generally T2, L18-31
[14]T3, L1-5
13 Furthermore, when queried as to the frequency of the occurrence of such episodes, the plaintiff stated that varies too, but generally about every “three to four months I’d say I have a flare-up.”[15]
[15]T3, L11-12
14 By way of his first affidavit, the plaintiff gave the following salient evidence:
·He was born in October 1987 and is now thirty-one years old. He lives with his partner, together with one six-year-old child from a previous relationship that he had, and one adult child from a previous relationship had by his partner.
·He was born and grew up in Victoria and later relocated to Queensland as a teenager. He left school after completing Year 9, but later had some further schooling, completing a number of subjects in Year 10.
·He commenced an apprenticeship as a boilermaker/welder in Queensland, but this was not completed. He had wanted to gain employment in the steel/metal fabrication industries, completing a Certificate III in boilermaking and engineering, and working as a welder/boilermaker in Queensland before relocating to Victoria in 2010.
·He commenced employment with the defendant on 10 December 2010, initially as a welder/fabricator at the defendant’s Moe workshop. The defendant manufactures and assembles a wide range of structural steel beams and components, including purloins and girts. He did a wide range of work tasks involving fabricating steel beams, which involved cutting steel, welding and other tasks.
·After about six months, he recommenced his boilermaker apprenticeship with the defendant at the Moe workshop and worked full time, usually thirty-eight hours per week, with regular overtime.
·After about twelve months, he requested, and was offered, onsite assembly and installation work. This involved travelling to various locations, including in and around Melbourne, unloading and distributing steel delivered onsite by the truck from the defendant’s Moe workshop, and frequently installing and erecting steel beams, purloins and other material.
·During April and early May 2012, together with other co-workers, he worked at a site in Brunswick known as the Brunswick Pool Refurbishment Site, where work was done on and off for about twelve months.
·He describes the circumstances of his injury in the following terms:
“In late April/ early May 2012, I injured my back when unloading, moving by trolley and delivering steel purlins at the site. The steel purlin beams had been delivered by truck in packs stacked on wooden timbers and unloaded by a truck-mounted crane. Each purlin was about 8-12 meters long weighing about 60/70 kilograms. Stacked in packs, and together with a co-worker, the purlins were lifted off a pack at about waist height, carried and loaded onto a trolley. The loaded trolley was pushed onto and around the site and steel purlins unloaded at various locations around the site. The purlins were then placed onto a duck lifter and winched up to about roof height to a scissor lift or lifted from the trolley and loaded onto the scissor lift, which had been lowered to about 1-2 metres from the ground. Steel purlins were delivered in this way to many locations around the site and over many days in late April and early May 2012.
When doing this work, I had back pain. The back pain continued over the days I worked at the Brunswick pool site and got progressively much worse. I reported the problems I had with my back to the site manager, Kane Constructions. I completed an incident/injury report.”[16]
[16]See exhibit 2, paragraphs [14]-[15] at pages 9-10 PCB
·The plaintiff continued doing his normal day-to-day work tasks at various sites and locations, delivering steel products as directed, during which time his back remained sore and painful. He struggled to do any lifting, carrying and manual handling tasks involved in unloading and distributing steel products.
·In or about May/June 2012, he consulted a chiropractor on about two or three occasions and his back seemed to improve, and he was able to continue to work. Over time, the back pain continued, and gradually got worse, with the plaintiff experiencing “soreness and pins and needles into the left leg”.[17]
[17]See exhibit 2, paragraph [18] at page 10 PCB
·The plaintiff did not report the ongoing problems he was having with his back to the defendant because he was concerned that he would be “sacked” and he wanted to complete his apprenticeship.
·After about September 2012 and for the balance of that year, he worked at the Moe workshop, doing his normal work tasks. After the incident in May 2012, his back had remained sore and painful, and overtime got progressively much worse doing normal work. He was also experiencing symptoms in his left leg, causing difficulty walking, and ultimately developed a limp, favouring his left leg. Although he had chiropractic treatments, these treatments only blunted the pain and helped him remain at work.
·In early 2013, he saw the osteopath, Dr Jess Nicholls, in Warragul, who arranged x-rays of his back. At that time he was having severe back pain, hobbling and limping, favouring his left leg, which was getting much worse.
·In January 2013, the osteopath, Dr Nicholls, recommended that the plaintiff see his general practitioner, and in early February 2013 the plaintiff attended a general practitioner at the Moe Medical Group, who arranged for him to undergo a CT scan of his back.
·He was struggling to continue at work because of severe back pain and pain and symptoms in his left leg. In or about mid-February 2013, he asked for and took sick leave, and his general practitioner made a referral to the spinal clinic at The Alfred Hospital.
·When he asked for further time off work to see the spinal specialist, he was “sacked on the spot” and last worked with the defendant on 13 February 2013.
·He continued to see a general practitioner, Dr Charles Perry, and also had ongoing osteopathic treatment. He also used medications, including Nurofen and Tramadol, but was very restricted with severe, fluctuating back pain, and pain and symptoms into the left leg.
·He had suffered episodes of back discomfort and pain in the past – in about 2004 and later in about 2008/2009. The plaintiff described that he readily recovered from each of these episodes of back pain and was able to continue at work without restriction. Furthermore, the plaintiff had also suffered, in the past, recurring problems with his left shoulder but, again, these problems did not prevent him from working.
·In late February 2013, the plaintiff lodged a WorkCover claim for compensation against the defendant and such claim was accepted. The plaintiff was very reluctant to claim WorkCover, as he feared that if he did so he would jeopardise to lose any chance of employment with the defendant.
·He remained off work and was unable to work because of “severe, unpredictable back pain and pain and symptoms in the left leg and foot”.[18] His general practitioner, Dr Charles Perry, referred him to a neurosurgeon, Mr Paul Smith, who initially saw the plaintiff in July 2013. Mr Smith arranged for the plaintiff to undergo an MRI scan, which was performed in late July 2013.
[18]See exhibit 2, paragraph [23] at page 12 PCB
·Mr Smith recommended that he undergo an epidural injection to his back and this was performed in mid-September 2013 and gave the plaintiff “significant real improvement in the pain and symptoms affecting my left leg and foot”.[19]
[19]See exhibit 1, paragraph [27] at page 12 PCB
·He continued to have ongoing unpredictable fluctuating back and his treating neurosurgeon recommended that he perform regular exercises, including swimming and stretching exercises, to help restore function in his back.
·In late October 2013, he began having regular physiotherapy with Jeff Thomas at Moe. In the physiotherapy, which extended over a period of two to three months, did improve his level of pain, and reduced the restriction and symptoms affecting his back.
·In late November 2014, he commenced employment as a welder/fabricator with Surefab, which is situated in Morwell and is a steel fabricator installer. After about six months, he became a site supervisor, overseeing site work and has, since November 2013 (up to the date of swearing the affidavit on 24 October 2017), worked full time, usually thirty-eight to forty hours per week. Over that period, he has had ongoing chronic permanent problems with his back.
·As a supervisor, he is able to avoid many physical manual tasks and activities involved in workshop assembly and delivery and installation of a wide variety of steel products. In particular, he is able to delegate many tasks to others and also arrange for appropriate lifting and other equipment for use on site. It is in this way he described that he could self-manage his ongoing problems and difficulties he had with his back.
·He asserts that since May 2012 he has had ongoing difficulties with his back, especially back and pain symptoms into his left leg. He is never free of back pain and the back pain fluctuates in severity to his activity. Because of this, many physical activities are difficult for him because of back pain, and restricted and limited movement of his back.
·While the pain symptoms in his left foot settled, the pain symptoms into the left leg had been ongoing and had never gone away. He has, since 2013, had episodes of pain and symptoms in the left leg, into the calf, and episodes of numbness in the left leg. These episodes are unpredictable.
·He describes his back as being “vulnerable” and no longer has full free movement of the back and is susceptible to acute flare-ups of back pain, at which time he struggles to complete his work tasks and other day-to-day activities.
·He is unable to sit for too long, stand for too long, or freely undertake tasks involving bending, twisting, flexing or stretching his back.
·Because of the unpredictability of his symptoms, he is always cautious and guarded, and pays attention to any particular tasks where his back would be involved.
·He self-manages his condition by avoiding potential activities that might cause acute flare-ups of back pain and also does regular exercises and stretching to ease soreness, tightness and restriction of his low back.
·He takes medications frequently, using over-the-counter medications of Nurofen and Panadol and takes these, usually daily, often four to six tablets each day for pain.
·Simple tasks such as bending, reaching, stooping and getting down low, are all activities likely to cause soreness and pain in his back. Once this occurs, he must then, as much as possible, step back, modify, or stop what he is doing, otherwise the back pain becomes much worse and he runs the risk of having pain and symptoms in his left leg and foot.
·Frequently, he struggles to lift, carry, and care for his young daughter, and finds it difficult to get down on the floor and play games with her. Also, many simple domestic tasks, including making beds, vacuuming and gardening, are also more difficult to complete, and frequently he has to pace himself to avoid provoking acute flare-ups of back pain.
·His sleep is frequently disrupted by back pain and episodes of soreness and pain to the left leg, and frequently he is woken by back pain, and then struggles to get a good night’s sleep.
·He believes that his mood and his behaviour, and ability to interact with people and to socialise with their company, has been “markedly affected”.[20] His relationship with his partner, Lisa, has also been affected and he finds himself becoming more irritated and annoyed and upset.
·In the past, he described he was very active. In particular, he stated:
“… I enjoyed playing competitive football, tennis and riding motorcycles. I enjoyed on-road and off-road motorcycling on my dirt bike. I have since ridden motor cycles but have worn a back brace to provide support and rigidity to my back. But I no longer enjoy nor cope with riding motorcycles for long distances for prolonged periods of time because the jolting, the jarring causes havoc with my back.”[21]
·He is able to cope with day-to-day work tasks if he is cautious in guarding and protecting his back and, as much as possible, avoids heavier work tasks, but this is sometimes “unavoidable”. He is no longer capable of unrestricted full-time work as a boilermaker/welder and he believes that loss of function in his back is permanent and is likely to cause difficulty for him in the foreseeable future.
[20]See exhibit 1, paragraph [44] at page 15 PCB
[21]See exhibit 2, paragraph [48] at page 16 PCB
15 By way of his second affidavit, the plaintiff gave the following salient evidence:
·In November 2017, he ended his employment with Surefab and commenced the same sort of site supervision work with a business known as Weldtek, where he remains.
·He continues to suffer with constant low back pain which fluctuates in severity and is generally activity related, but sometimes its onset is entirely unpredictable. His range of movement of his back remains restricted by pain.
·He has left leg pain about two to three times a month and, again, the onset is also unpredictable. He described the pain usually stopping at the knee, but when the back pain is particularly bad, the pain goes further down the leg into his calf. He believes these symptoms have slightly worsened since his first affidavit and he has, now, occasional right-sided low back pain also.
·He has flare-ups of pain about every three months and the last was on 13 September 2018, which began with a slow build up and was more noticeable on Friday morning.
·Even during his most recent flare-up of pain, he continues to go to work and has a very understanding boss – Brett Ryan (“Ryan”), who manages the business. The plaintiff describes how he worked with Ryan when working with the defendant and when Ryan got the job as manager at Surefab he requested the plaintiff to come and work for him there. When Ryan changed to Weldtek, the plaintiff also was offered a job under Ryan, and although he was well aware of the plaintiff’s back problem, he still wanted the plaintiff to come “on board”.
·The plaintiff stated that he earnt $93,152 in his most recent financial year. He strongly believes that if he did not have “Brett as a sponsor I’d have no chance of getting work in my trade which would accommodate my problems.”[22]
[22]See exhibit 2, paragraph [8] at page 17C PCB
·The nature of his work allows him to avoid most aggravating situations and, in particular, he avoids heavy lifting, which is either done by lifting aids or other personnel.
·He is concerned about continuing to support his family as his stepdaughter is studying veterinary science at Latrobe University and has living-away-from-home expenses of $1,000 per month, which he is paying. He also has ongoing relationship tensions with his partner and, in particular, his back injury has interfered with his sexual relationship, and also he has become more withdrawn.
·The pain does not follow any particular daily pattern, save that it becomes worse by physical activities, and any attempt to lift, bend or stand for long periods, or sit for long periods, is associated with increased pain.
·His sleep continues to be disrupted by pain and he is frequently woken because of it, and finds it difficult to get back to sleep.
·He referred to his first affidavit which refers to previous recreational activities. In particular, the plaintiff states:
“One aspect may be misunderstood in that I had not played football for years before my injury and I put that in my affidavit to indicate that I was an active person through my life. I did play tennis at least weekly up until my injury and I rode a motorbike. I loved tennis hit outs, but I cannot play anymore without significant increase in pain. I have two bikes in the shed. I have not ridden my bikes in a month. I am thinking of selling them. I stopped riding them because if I rode for any distance I suffered for days afterwards. I got a lot of pleasure out of riding bikes, road or dirt, it was an activity that I enjoyed most.”[23]
·He is continuing to have some problems with personal care – for example, anything which requires him leaning forward, such as doing up shoelaces, provokes pain, and although he is able to do light domestic chores at bench height, he still has difficulty with mowing lawns, hanging washing or folding sheets. When he assists his wife shopping, he likes to push a trolley, because it supports him while he is doing that task.
·He doesn’t regularly attend his general practitioner, but treats himself with Panadol and Nurofen when needed. He usually takes four to six tablets a day of Nurofen or Panadol a couple of times a week, and takes up to ten a day when he has flare-ups. On occasion, he will attend his general practitioner after a flare-up and there has been a suggestion that he undergo a further epidural injection. He has had no further physiotherapy or hydrotherapy since his first affidavit and cannot afford it. He has set up a home gym and he does exercises and yoga regularly.
·He also confirms that many aspects of playing with his younger daughter are restricted because of his troublesome back.
·He notes that in the history obtained by Mr Smith that he was lifting 300 kilograms at the time of the injury – such history is “clearly wrong”, in fact two people could not lift that weight.
[23]See exhibit 2, paragraph [13] at page 17D PCB
The medical and other treatment of the Plaintiff
16 Exhibit “B” is the records from the Warragul Osteopathic Clinic. From such records, it is clear that the plaintiff attended the Warragul Osteopathic Clinic, initially on 18 January 2013, and was treated by the osteopath Dr Jessica Nicholls. At the initial consultation, Dr Nicholls obtained a history that the plaintiff had “back problems for a while. Tried a few things, with no success, so decided to try Osteopathic Treatment.”[24]
[24]See exhibit “B”
17 Curiously, the plaintiff circled “No” when queried as to whether the problem was related to a WorkCover/TAC claim.
18 The osteopath gave the plaintiff Certificates of Capacity, describing his injury as:
“Lower Back Pain, sensory changes left leg. Diffuse L4/L5 disc bulge.”[25]
[25]See exhibit “B” – Certificates of Capacity
19 The osteopath arranged for the plaintiff to undergo an x-ray of his lumbopelvic/hip on 18 January 2013 and the radiologist reported:
“Findings: Alignment is satisfactory and disc spaces are well maintained with no wedge compression and no spondylosis. SI joints and hip joints are well preserved and are essentially normal for age. There is no pelvic tilt.”[26]
[26]See exhibit “B” which contains such report
20 Dr Nicholls wrote to Dr J Belgaonkar at the Moe Medical Group for further management, suggesting a CT scan to be undertaken.
21 Dr Belgaonkar arranged for the plaintiff to undergo a CT scan of his lumbosacral spine on 20 February 2013 at the Orthopaedic Outpatients Spinal Clinic at The Alfred Hospital. The radiologist concluded:
“Mild diffuse disc bulge with posterocentral, left paracentral disc extrusion and inferior migration causing compression of thecal sac. Left L5 nerve root and compromise of left lateral recess.
Right paracentral disc protrusion L5/S1 indenting the right S1 nerve root.
It would be appreciated your speci[a]lised care for his ongoing sciatica pain”[27]
(sic)
[27]See exhibit 3 at page 18 PCB
22 I also refer to the report from Dr Charles Perry dated 3 February 2014. Dr Perry was also a member of the Moe Medical Group. Dr Perry notes that the plaintiff first presented to him on 25 February 2013 complaining that he had hurt his back lifting roofing steel two months prior to that appointment. He also gave a history that his pain had been getting progressively worse and that he had attended an osteopath for further assistance.
23 Examination at that time revealed the plaintiff to be tender of lumbar vertebrae L3-5 and left sacroiliac joint. Motor power reflexes were normal.
24 Dr Perry noted that Dr Belgaonkar had arranged a CT scan of the spine which showed a “prolapsed disc”. The plaintiff was prescribed Tramal, and one of the other doctors at the Moe Medical Group referred him to The Alfred Hospital spinal unit for further treatment.
25 Dr Perry noted that the plaintiff returned on a regular basis for repeat certificates and further help with pain relief, and in July 2014 was referred to the neurosurgeon, Mr Paul Smith. Dr Perry notes that Mr Smith organised an MRI scan which confirmed the protrusion of the disc, and also gave the plaintiff an epidural injection, giving rise to good pain relief.
26 Dr Perry noted that the plaintiff was able to resume more active rehabilitation and gym and pool work to rebuild his fitness, and on 30 December 2013 the plaintiff considered he had made sufficient improvement to be able to return to full-time work so a clearance certificate was given. Dr Perry notes that as the plaintiff had suffered a prolapsed disc he would remain “at risk of further exacerbation of back pain” and was advised about protecting his back and avoiding repetitive bending or heavy lifting.
27 The plaintiff relies on the reports from the neurosurgeon, Mr Paul Smith, dated 5 July 2013[28] and 3 July 2014.[29] Mr Smith notes that the plaintiff consulted with him on 1 July 2013, 6 September 2013 and 11 November 2013.
[28]See exhibit 3 at pages 20-23 PCB
[29]See exhibit 3 at pages 24-27 PCB
28 At the initial consultation the plaintiff gave a history that he suffered injury to is low back on 1 May 2012.[30] In particular, the plaintiff stated that he was moving some structural steel with another person when he felt a pulling sensation in his low back, but kept working, however feeling uncomfortable for the rest of the day. He subsequently developed increasing low back pain and initially took himself to a chiropractor, and later sought osteopathic treatment and Bowen Therapy. The plaintiff gave a history that he had ongoing low back pain which was increased by all-upright postures, but also was bad when lying in bed. The plaintiff described his usual back pain level as 7/10, and leg pain as 5/10.
[30]Initially the plaintiff gave a history that injury occurred on 1 May 2011, but this was mistaken.
29 Mr Smith arranged for the plaintiff to undergo an MRI scan,[31] which demonstrated – according to Mr Smith – that he did have an L4/5 disc protrusion, which was somewhat broad-based, with encroachment upon the L5 nerve roots, on the left more than the right, but not severe compression.
[31]Undertaken on 23 July 2013
30 Mr Smith was of the view that surgery would be, perhaps, of not a high likelihood of benefitting the plaintiff, but thought ongoing conservative management and perhaps a trial of epidural steroid injection was justified. On 13 September 2013, Mr Smith performed a CT-guided epidural steroid injection.
31 When reviewed on 11 November 2013, the plaintiff reported a:
“… stunning response to the epidural steroid injection. He had had complete resolution of his limp and discomfort all occurring within two hours of the injection and continuing up until the time of our third consultation.”[32]
[32]See exhibit 3 at page 26 PCB
32 After his last consultation, Mr Smith reported, in part:
“Mr Robertson seemed to manifest elements of a left L5 radiculopathy and back pain secondary to L4/5 disc injury as a result of a workplace incident on 1/5/2012 which involved lifting of a heavy item. Although there were some atypical features in Mr Robertson’s presentation it was my feeling indeed that the injury event as described to me on the 1/5/2012 had been the cause of this gentleman’s L4/5 disc pathology and back and leg pain manifest thereafter.
…
Given the exceptional response to an epidural steroid injection which seemed to be enduring for two months after the injection at least, I was and continue to be quite hopeful that Mr Robertson can settle his problem with conservative measures and observation only. Whether he can return to heavy work again however is another question and I would be very concerned that this gentleman really should stay away from very heavy lifting in the future given what has happened at a young age.
Given his wellbeing when I last saw him, however, I did feel he would have a capacity for work avoiding heavy lifting in future. I hope this report is helpful.” [33]
[33]See exhibit 3 at page 27 PCB
Medico-legal reports
33 The solicitors acting for the plaintiff arranged for him to be medico-legally examined by the following doctors:
(a)the neurosurgeon, Mr Peter Dohrmann, on 9 September 2016[34] and on 24 April 2018;[35]
(b)the consultant psychiatrist, Dr John Gill, on 25 June 2018.[36]
[34]See report of same date, exhibit 4, at pages 28-36 PCB
[35]See report dated 1 May 2018, exhibit 4, at pages 37-46 PCB
[36]See report dated 5 July 2018, exhibit 4, at pages 47-56 PCB
34 When initially seen by Mr Dohrmann, the plaintiff gave a history that he suffered a low back history on 1 May 2012 during the course of his employment with the defendant when he was required to lift roof ties. In particular, he said that when he went to pick one such roof tie up he experienced an immediate pinching sensation in the low back and had pain for the rest of day, causing him to report the incident to a site foreman.
35 Further, the plaintiff tried to manage his symptoms thereafter without any time off work, other than having a weekly massage. The symptoms continued through late 2012 and early 2013, and in the latter part of 2012 he had begun to develop left leg pain. The plaintiff also gave a history of attending doctors at the Moe Medical Group, and his referral to the orthopaedic surgeon, Mr Paul Smith, who administered a cortisone injection performed on a single occasion.
36 The plaintiff confirmed that following such injection his left leg pain “resolved” and that although the low back pain improved, he still had persisting symptoms in that area.
37 When seen on 9 September 2016, the plaintiff stated:
·That he continued to experience central and left-sided low back pain which varies in intensity, but which is constant. Such pain is normally about 5 out of 10 on the pain scale, but can increase to 8 out of 10, or even higher. On a better day the pain is in the order of 3 out of 10.
·The pain is made worse by bending and lifting (and accordingly he tries to avoid these actions) and by general physical activity. In particular, sitting and standing for long periods is also accompanied by increasing low back pain, and the pain can be made worse if he is lying in the wrong position or forgets to take care at work. His pain can be eased by lying down, and by the use of a heat pack or a hot shower, or both.
·He does not experience any referred left leg pain, but does experience intermittent pain in the left buttock, but there was no issue of numbness or pins and needles in the lower legs, and the strength of the limbs feels normal.
·Sitting is limited to about thirty minutes at a time, and standing stationary is limited for a similar period.
·Although he can attend to self-care and perform ordinary domestic duties, he does have difficulty with vacuuming, washing and lawn mowing, which is generally followed by increased low back pain.
·His leisure activities have been “adversely affected”, including his ability to play tennis or cricket and play with his four-year-old daughter. At that time, the plaintiff gave a history that he was receiving no treatment, and was occasionally using Panadol, but no other prescribed medication.
38 Examination of the plaintiff revealed a “moderate limitation of active lumbosacral flexion and extension …” and in particular, there was asymmetric limitation of lumbosacral flexion of rotation, being more severe on the right side in each instance. The deep tendon reflexes were present, but the left knee jerk was probably slightly reduced compared with the right knee jerk, although there was no evidence of muscle wasting and thigh and calf circumferences were equal.
39 There were no sensory signs and, in particular, there was no evidence of functional overlay.
40 Mr Dohrmann had available the MRI scan undertaken on 23 July 2013 which, according to him, revealed evidence of disc degeneration at L4-5 and L5-S1, with a posterior annular fissure visible at L4-5. Furthermore, axial imaging suggested a central and left paracentral small disc protrusion at L4-5.
41 After such first consultation, Mr Dohrmann was of the opinion that the plaintiff had suffered a left L4-5 disc prolapse manifesting as low back pain and left leg pain during the course of his employment with the defendant. Furthermore, he was of the opinion that the plaintiff was suffering from persisting fluctuating low back pain for which no specific treatment was required, although he should continue to perform prescribed exercises.
42 Because the plaintiff was consciously avoiding excessive bending and lifting and appeared to be managing with this employment then, there was no need for any certified restrictions. However, Mr Dohrmann did note that there remained the possibility of the recurrent disc prolapse which could affect his work capacity in the future, and he estimated the likelihood of this occurring to be in the order of 10 to 20 per cent over the next five years.
43 In particular, Mr Dohrmann was of the opinion that the back injury has had an “adverse impact” on the plaintiff to engage in a full range of social, domestic and recreational activities as a result of his lower back injury.
44 When last seen on 24 April 2018, Mr Dohrmann obtained a history from the plaintiff that, if anything, his symptoms were worse than they were before and, in particular, reference was made to intermittent right-sided lower back pain in addition to the previous left-sided symptoms. At that examination, the plaintiff complained of:
·Continuing to experience constant but variable left-sided low back pain which regularly extends into the left buttock, and over the past six to twelve months, also some right-sided low back pain.
·The pain is increased by lifting, bending, standing for long periods or undertaking home maintenance, such as lawn mowing, and that he gets some relief by a hot bath of shower, or lying down.
·His left leg pain is now very occasional and is confined to the posterior aspect of the left thigh, and does not extend below the knee, and he notices this about two to three times per month.
·Coughing and sneezing both cause an increase in low back pain and that he has to brace in anticipation of sneezing.
·His sleep, on occasion, may be interrupted by back pain.
·He can sit up for thirty minutes at a time, and when standing he is much better at moving, but that standing stationary is limited to about fifteen to twenty minutes. He believed that he could walk about 3 to 5 kilometres.
·He finds it difficult to mow lawns, to hang washing, or to fold sheets, because of the standing and bending inherent in such tasks. Although he sometimes goes shopping with his partner, he likes to push the trolley because of the support it provides.
·Leisure activities have been adversely affected, including motorbike riding, both on road and dirt, which he said is now much more limited than before.
45 The plaintiff gave a history that he does have a general practitioner, but does not attend any other practitioner for ongoing treatment. His medication is limited to Panadol, not on a daily basis, and anti-inflammatory medication, which he will use infrequently if the back is “bad”. He continues to perform some exercises and some yoga at home in a gymnasium that he has set up.
46 Again, the plaintiff stressed that his current employer is aware of his low back condition, and it is possible for him to avoid undue bending and lifting by agreement, and it is not necessary for him to provide medical certificates to this effect, given the informal agreement that is in place.
47 Examination at that time revealed a “cooperative man in whom there was no evidence of functional overlay.”[37] Again, there was moderate restriction of active lumbosacral flexion and mild restriction of active lumbosacral extension. There was also tenderness to deep palpation of the lumbosacral region in the midline on both sides, but there is no evidence of any neurological deficit.
[37]See exhibit 4 at page 41 PCB
48 Mr Dohrmann essentially confirmed his earlier opinion, but further noted, as a result of his low back injury, the plaintiff has a persisting incapacity for work, in that he cannot be expected to perform his pre-injury duties as a boilermaker, which included repeated heavy lifting and bending, which is now beyond his capacity. Again, Mr Dohrmann confirmed that the plaintiff was precluded from engaging a full range of social, domestic and leisure activities.
49 Mr Dohrmann is of the ultimate opinion that the prognosis remains reasonable, but the plaintiff will continue to experience fluctuating low back pain similar to that set out in this report for the foreseeable future and, again, there is a risk in the order of 10 to 20 per cent over the next five years of recurrent disc prolapse which can lead to an increase in low back pain and a recurrence or persistence of left leg pain.
50 I briefly refer to the report of the psychiatrist, Dr John Gill, who examined the plaintiff on 25 June 2018. Ultimately, Dr Gill was of the opinion that the plaintiff suffered from an Adjustment Disorder with Depressed Mood secondary to the physical injury sustained at work on 1 May 2012.
51 The plaintiff informed Dr Gill that he suffers constant pain in his low back which fluctuates in severity between 2-3/10 and up to 9/10, and his physical condition does cause him various limitations – for example, mowing the lawn and playing with his young daughter. In particular, he also explained to Dr Gill that sexual intercourse has been painful and difficult because of his back injury.
52 The plaintiff also relies on the report from the orthopaedic surgeon, Mr Peter Kudelka, who examined the plaintiff on 21 March 2013 at the request of an insurer of the defendant.[38] When seen by Mr Kudelka on 21 March 2013, the plaintiff gave a history of suffering an injury to his low back on 1 May 2012 when lifting a heavy beam at work. He initially had back pain, attended a chiropractor, but it later became worse, with him experiencing pins and needles in his left leg. At the time of the examination, Mr Kudelka had an x-ray of the low back and CT scans of the lumbosacral spine.
[38]See exhibit 8, report of Mr Kudelka dated 22 March 2013 at pages 17-19 PCB
53 Mr Kudelka was of the opinion that the plaintiff had a lumbar disc lesion with left-sided sciatica, consistent with the history of injury on 1May 2012. At that time he strongly suggested the plaintiff be referred to a spinal surgeon and that an MRI scan be undertaken.
54 It is also convenient to refer to the medico-legal material relied on by the defendant. Those acting for the defendant arranged for the plaintiff to be medico-legally examined by the following:
(a)the orthopaedic surgeon, Mr Michael Dooley, on 26 July 2016,[39] and on 23 July 2018.[40] Mr Dooley also supplied a report dated 5 October 2016[41] in response to questions posed by those acting for the defendant;
(b)by the occupational physician, Dr David Elder, on 16 January 2017.[42] The examination by Dr Elder was for the purposes of providing an impairment assessment under the Australian Medical Association, AMA Guides to the Evaluation of Permanent Impairment (4th edition).
[39]See exhibit “A”, report dated 28 July 2013, at pages 7-10 Defendant’s Court Book (“DCB”)
[40]See exhibit “A”, report dated 14 August 2018, at pages 1-4 DCB
[41]See exhibit “A”, report of the same date, at pages 5-6 DCB
[42]See exhibit “A”, report dated 16 January 2016 (sic) at pages 11-16 DCB
55 When initially seen by Mr Dooley in July 2016, the plaintiff gave a history that on 1 May 2012, he was lifting at work when he felt a “pinching type sensation” in his lower back.[43] His pain worsened over time and became associated with left lower limb pain and paraesthesia. He ultimately saw a doctor, and later was referred to a neurosurgeon who gave him an epidural injection, which gave him “definite good improvement in his symptoms for a six to twelve month period”.[44]
[43]See exhibit “A” at page 7 DCB
[44]See exhibit “A” at page 7 DCB
56 At the time of examination, the plaintiff complained of:
·Ongoing lower back pain.
·In particular, prolonged sitting and prolonged standing in the one position aggravated the pain.
·He is only able to mow his lawns very slowly and pays for it later.
·He is unable to get down and play on the floor with his four-year-old daughter.
57 The plaintiff gave a previous history of developing soreness in his back in around 2005 after moving furniture for a friend. He also gave a history of a recurrent dislocation of his left shoulder.
58 Examination at that time revealed tenderness of the left lower region, with flexion to 40 degrees and extension to 15 degrees. Natural flexion and rotation to the left and to the right were to 20 degrees.
59 Straight leg raising was 50 degrees on both sides, at which point the plaintiff noted low back pain. Power tone and sensation of reflexes were intact in the lower limbs. There was no wasting.
60 Mr Dooley had available to him the MRI scan of July 2013, together with a CT scan dated 22 February 2013. After that first examination, Mr Dooley reported:
“Despite his young chronological age, Mr Robertson has degenerative disc disease involving the L4/5 and L5/S1 levels. He describes an episode of heavy lifting in early May 2012. Consequent upon this, he developed low back pain and subsequently left sided sciatica. I believe that in this episode, Mr Robertson developed a disc prolapse on the left side at the L4/5 level. This would explain his initially significant pain and left sided sciatica. His symptoms persisted in time. Subsequently they responded very well to an epidural injection. Mr Robertson described noting ongoing low back pain but no significant sciatica. The natural history of a disc prolapse is improvement with time. When a disc prolapse does occur, there is aggravation of the underlying degenerative disc disease. In time, patients often describe noting ongoing intermittent lower back pain and some lower limb pain … .”[45]
[45]See exhibit “A” at page 9 DCB
61 Mr Dooley noted that the plaintiff presents as a “sensible and genuine historian” and Mr Dooley accepted that his ongoing symptoms were consistent with his organic condition. He recommended that he remain active and sensibly modify his activities in relation to lifting and bending, and manoeuvring any heavy weights.
62 After that report, Mr Dooley was supplied with various materials from the solicitors acting for the defendant. In such documentation Mr Dooley notes that the plaintiff did suffer low back pain in 2005, when assisting a friend to remove furniture and that in at least 2007, 2008 and 2009, he had symptomatic episodes of significant low back pain.
63 Notwithstanding that and, indeed, Mr Dooley noting that it was “unusual” that no specific medical advice was initially sought after the injury, and that when filling out the osteopathic questionnaire the plaintiff sought fit to say that his symptoms did not relate to a specific compensable injury, Mr Dooley was of the opinion that the plaintiff did have a specific injury in May 2012 which was consistent with the development of a left-sided L4-5 disc prolapse. When last seen on 23 July 2018, the plaintiff gave a history that he has ongoing low back pain. He has no active physical therapy and tries to avoid analgesic medication, although he takes anti-inflammatory medication and Nurofen if his pain is bad. Overall, he has minimal leg pain now.
64 In particular, the plaintiff noted that he has good and bad days, and that he no longer goes motorbike riding, although can walk reasonable distances.
65 Examination revealed tenderness in the low lumbar spine, with limited flexion, extension, lateral flexion and rotation, all of which cause low back pain. Straight leg raising was 10 degrees on both sides and passive flexion of the knees to 20 degrees causes significant low back pain.
66 Mr Dooley was of the same opinion as to causation. Mr Dooley noted that on the last examination the plaintiff had greater restriction of range of motion of the lumbar spine and, indeed, there were inconsistent signs in relation to straight leg raising. In particular, Mr Dooley stated the following:
“… Examination findings in 2016 were similar to those found by Mr Dohrmann in April 2018. I cannot easily explain the inconsistent findings on clinical examination today. Mr Robertson had travelled from Newborough for consultation today. I do not believe that this would explain the significant restriction of range of motion of the lumbar spine noted today. I cannot easily explain the inconsistent findings in relation to straight leg raising. It is over six years since Mr Robertson’s injury. As previously noted, I have found him to be a sensible and genuine historian. I think that it is a reasonable observation that in terms of the WorkCover System, the wheels turn slowly. Understandably patients become frustrated by what appear to be delays, inefficiencies and lack of common sense within many aspects of the Compensable Injury System. This may be the explanation for inconsistent findings on clinical examination today.”[46]
[46]See exhibit “A” at page 3 DCB
67 Again, Mr Dooley noted that the plaintiff is unable to engage in heavier leisure and sporting activities such as motorbike riding, and from an orthopaedic point of view it was reasonable for him to take simple analgesia and/or anti-inflammatory medication as required. In particular, he was of the view that the plaintiff did not require ongoing formal conservative treatment and there would be no indication to consider surgical intervention in his management.
68 It is necessary for the plaintiff to avoid regular lifting or a lot of bending, and in this sense it was noted by Mr Dooley that his employer is aware of the plaintiff’s back condition and is accepting that there will be some limitation in the plaintiff’s ability to carry out all the duties of a boilermaker/welder.
69 At the time of his examination by Dr Elder, the plaintiff was complaining of low back pain which radiated down the left leg. Examination revealed what was referred to as an:
“… asymmetric decreased range of motion in the lumbar spine there was right-sided muscular spasm”. Power, sensation, and reflexes were all normal. There was no clonus and plantar response was down going. His gait was normal. There is no asymmetry in his limb measurements.”[47]
[47]See exhibit “A” at page 13 DCB
70 Dr Elder was of the opinion the plaintiff had “mechanical low back pain with no clinical evidence of radiculopathy”.[48]
[48]See exhibit “A” at page 13 DCB
71 The plaintiff also tendered the following material:
(a)A Schedule N – Workplace Injury Disease Recording form consisting of two pages.[49] This document records that the plaintiff suffered injury on 1 May 2012 when erecting some steel beams;
(b)The records of the Beenleigh Village Family Medical practice, running from 25 March 2004 to 26 February 2010.[50] Such records relate to the attendances by the plaintiff on general practitioners at such practice when he was situated in Queensland;
(c)Moe Medical Centre clinical notes for the period from 2011 to December 2013;[51]
(d)United Medical Centre clinical notes from 19 December 2013 to 15 September 2017[52] detailing attendances by the plaintiff on that clinic situated in Moe.
I have read all such documents.
[49]See exhibit 1
[50]See exhibit 5
[51]See exhibit 6
[52]See exhibit 7
The cross-examination of the Plaintiff
72 Under cross-examination, the plaintiff confirmed that when seeing his barristers the previous Friday, he was experiencing a flare-up of lower back pain, but he expected that the symptoms would ease over the weekend, which they did. Furthermore, he confirmed that he was working yesterday – that is, Wednesday 26 September 2018 – when he travelled from his place of residence in Newborough to the Keysborough College – approximately 115 kilometres each way, in order to perform work. The plaintiff gave evidence that he left home at about 5.00am in the morning and got home by about six o’clock that evening after dropping off a piece of machinery to another company. He also confirmed that he was driving the company vehicle during that work trip.
73 The plaintiff was referred to the first report of Mr Dooley (in respect of an examination on 26 July 2016) wherein it is recorded that the plaintiff had some back pain around about 2005, although it may be related to 2004, when he was helping a friend with some furniture. The plaintiff gave evidence that he did have such an incident, but he was not “100 per cent certain” when it occurred, but he thought more around 2007.
74 In particular, after it was put to the plaintiff that he had various episodes of back pain following that incident involving the removal of the furniture, the plaintiff stated:
“ I don’t recall any other episodes or issues with back pain thereafter helping my friend move.”[53]
[53]T7, L11-14
75 Furthermore, the plaintiff gave evidence that he believed that he only took a few days off work following the “furniture” incident.
76 The plaintiff confirmed that he did attend the Beenleigh Village Family Medical Practice when living in Queensland.[54] In particular, the plaintiff was referred to an entry on 9 July 2007, when a Dr Shahla Rafiei recorded:
[54]See exhibit 5
“severe back pain since this morning
bent forward to tie his shoes, felt severe pain in his back
denies any heavy lifting
back pain on and off in the past
off work for 9 months due to his shoulder problems, just started a new job.”[55]
[55]See exhibit 5
77 The plaintiff gave evidence that he could not clearly remember this episode, but did confirm that he was off work for nine months because of a shoulder problem.
78 It was also put to the plaintiff what was recorded by Dr Kalani Dias on 12 August 2009:
“Ian presents requesting mc for last three days off work
states injured his back while moving furniture 4/7 ago
has been in bed last 2/7
states today is the first day he was able to get out of bed
no pins or needles in feet
no bladder or bowel problems.”[56]
[56]See exhibit 5
79 The plaintiff accepted that the excerpt was probably correct, but he could not remember the date. In particular, he also accepted that most probably this attendance followed on from the “furniture incident” helping his friend.
80 The plaintiff was also referred to a handwritten note on 28 July 2004, when the plaintiff complained of back pain for two days as a result of lifting at work with no radiation of pain. The plaintiff could not recall that particular incident.
81 The plaintiff did confirm that his present symptoms commenced as a result of the specific incident of lifting the steel on 1 May 2012. In this respect, he was taken to his claim for impairment benefits and the claim form was filled out as “during the course of employment”, not any particular incident, to which the plaintiff replied he did not realise he had said that.
82 The plaintiff was cross-examined about going to a chiropractor following the subject injury and gave evidence that he believed that he first attended a chiropractor in respect to the injury within a week of the injury. In particular, he gave evidence that he believed that he had never been to a chiropractor prior to that. The plaintiff confirmed, under cross-examination, his treatment from his treating neurosurgeon, Mr Smith and in particular, he gave evidence that he considered that the “overall time” that the effects of the epidural injection lasted for was twelve to twenty-four months,[57] after which he commenced to feel pain again.
[57]T17, L1-5
83 The plaintiff was also cross-examined about him stating in his second affidavit that he had not played football for some period of time prior to the subject injury. He gave evidence that he had played football in Victoria prior to moving to Queensland. When queried by the Court as to how many years prior to 2012 – the date of the subject injury – had he not played football, he gave evidence of “around eight or nine years” when he was aged fifteen. However, he did confirm that at the time of the injury he was a tennis player.
84 When pressed by counsel that absent the injury there was no intention for him to return to play any type of football, the following evidence was given:
Q:“There was no, there was absolutely no thought in your mind of returning to football in 2011 or ‘12, you weren’t thinking ‘I’ll go and play footy’?---
A:There was but I think it was a bit more of a pipe dream. It was something I would have liked to have - excuse me - would’ve liked to have taken up again ah, but never really got around to it and then the injury occurred and that ceased all thoughts of ever playing football again.
Q:Had you been down to the club to enquiries locally as to whether you could have a game?---
A:I never got that far, no, in the sense of middle of season and stuff um, you need to register.
Q:Well I mean just adopting your words from the affidavit and what it seems to mean, there was no - you wouldn’t be saying that you were certainly going to play football again?---
A:No, I wasn’t certain that I was going to, it was just ‑ ‑ ‑
QMaybe one of many possibilities in life as it were - and it would be quite wrong to say that you were going to return to football for sure, wouldn’t it, for sure?---
A:Beg your pardon?
Q:It would be quite wrong to say that you were going to return to football for sure?---
A:That’s correct.”[58]
[58]T19, L13 – T20, L4
85 The plaintiff was taken to a report from Mr Dohrmann, who examined him on 22 April 2018, in which Mr Dohrmann described leisure activities that had been adversely affected by the injury, including playing football “For sure”. The following evidence followed:
Q: “Did you know that that report said that?---
A: No, no I did not.
Q: And he’s got it in inverted commas, ‘For sure’?—
A: Yeah.
Q:This is someone you’re seeing at the request of your solicitors. You say there was a bit of a misunderstanding?---
A:I think there’s a bit of misunderstanding in how it’s come across, that I initially ah, would’ve meant that I would’ve liked to have been playing football for sure but yeah, I think that’s been a little bit misunderstood.”[59]
[59]T20, L23-31
86 The plaintiff confirmed that he stopped his first apprenticeship in Queensland because of a shoulder injury which required him to have surgery and lose nine months off work. In answer to a query from the Court, the plaintiff stated that when he suffered an injury to his back assisting his friend with furniture removal he had no pain in his left leg. Furthermore, when the pain did develop in his left leg within approximately six months after the incident, the plaintiff gave evidence that he had never suffered any leg pain like that before.
87 In particular, he was questioned about his flare-ups and accompanying leg pain, and the following evidence was given.
Q:“Okay, so once the injection was given to you, pretty good relief?---
A:Yes.
Q:Including the left leg pain going away?---
A:That’s correct.
Q:Do I understand from what I’ve just heard, do you say from that point, even though your back flares up and we’ve heard a bit about that, had there been any actual left leg pain since that time?---
A:Since the injection time?
Q:Yes?---
A:Um, every now and again in my flare-ups, it can stem down the back of my leg, yes. Ah, sometimes down to as far as my calf um, but for a period of time 12 to 24 months after the injection, I - I was fine in a sense, there was no direct pain ah, but gradually since then thereafter, it has progressively gotten worse again.
Q:Well I want to understand this and again, I stress if you’re not sure, tell me you’re not sure, if you don’t know you don’t know - but when you have if I can call it flare-up?---
A:M’mm.
Q:As you had only a short time ago when you went and saw the barristers?---
A:Yeah.
Q:During those sorts of times, do you get always or sometimes or not at all, any referred left leg pain?---
A:Ah, sometimes I do, yes.
Q:Not always?---
A:Not always, no.
Q:Right - and that extends to the way you’ve just described to me then, was it?---
A:It is, yes.
Q:But on the normal day to day basis, when the flare-ups aren’t there, no left leg pain?---
A:No, no that’s when I don’t get any leg pain and it varies on how severe the flare-ups are as to how much leg pain I do - do get.
Q:And absent the flare-ups which you’ve described, the frequency or the approximate frequency of those, just on a general day to day basis, do you suffer pain?---
A:Yes, in my lower back I do, yes.
Q:What, varying degrees or what?---
A:Yeah, it does vary um, some days are better than others and in the case of flare-ups those times are well worse than my better days.”[60]
[60]T26, L28 – T28, L1
88 Under cross-examination, the plaintiff confirmed that he takes the occasional Panadol, works full time, and has no treatment.[61] Furthermore, the plaintiff confirmed his employment history since the injury as follows:
(a)he stopped working for the defendant in early 2013 and was “sacked” because of his injury;
(b)in about November 2014, he commenced work with Surefab, which he obtained through the assistance of a friend. Initially he spent limited time in the factory to progress his back into work as had been off work for about nine months. He progressed into site work, welding on site, and later became a site supervisor;
(c)in November or October 2017, he moved from Surefab to Weldtek, where he continues to be employed as a site supervisor. The reason he went to that employer was that it paid more money for his qualifications. Again, the friend who had helped him obtain employment at Surefab had moved to Weldtek as a manager, and he assisted the plaintiff to obtain employment there. The plaintiff believed that for the financial year 2018/2019, he would probably earn $100,000 or more from his present employment. In answer to a query from the Court, the plaintiff gave evidence that notwithstanding he was a site supervisor, he is paid on hours worked and is entitled to overtime payments.
[61]T30, L11-14
89 The plaintiff also accepted, under cross-examination, that he “regularly” drives over 100 kilometres during a full day’s work. In particular, the following evidence was given:
Q:“What I am putting to you is, that you were reporting in 2016 that you were working, doing the work of a normal boilermaker duties, save for heavy lifting?---
A:Yes, that’s right. Anywhere I could I would avoid any heavy lifting or anything that was heavy that needed lifting, I would seek lifting aid or seek help.”[62]
[62]T33, L10-15
90 The plaintiff was taken to the report of the psychiatrist, Dr Gill, who examined the plaintiff on 25 June 2018. The plaintiff confirmed, consistent with the history of Dr Gill, that he now takes some Nurofen when required, and that when Dr Gill referred to a history of being able to walk a reasonable distance, the plaintiff accepted that could be possibly up to 3 to 5 kilometres.
91 In particular, the plaintiff was referred to the history given to Dr Gill that he still rides motorbikes “occasionally” but it aggravates his low back, to which the plaintiff stated “That’s correct”.[63] In particular, the following evidence was given:
[63]T34, L30-31
Q:“In fact you do ride motorbikes occasionally? Occasionally. I haven’t in a – in a few months now but - - -.”
HIS HONOUR:
Q:“Is this motorbikes – what are they called, off road or is it just motorbikes on the road?- - -
A:Both, Your Honour. Ah, I’ve got both a road bike and a dirt bike.
Q:Well, how do you go – do you use the dirt bike and if so how often?- - -
A:No, I haven’t in, um, a - a few months, I believe. Ah, same as my road bike, I haven’t used that one either.
Q:What happens if you do use a bike, if anything?- - -
A:Um, it gets very uncomfortable and there - after a few days I’m in quite a considerably amount of pain.
Q: Yes?- - -
A: So I tend to try and avoid it at the moment.”[64]
[64]T35, L3-15
92 The plaintiff confirmed that sexual intercourse with his partner is painful and, in particular, he suffers low back pain, which causes difficulties. Furthermore, when queried as to whether that was an ongoing thing, the plaintiff responded:
A: “Ah, it has been, yeah. It – it varies. Sometimes better than others.
Q: Depending on how the state of your back is?- - -
A: That’s correct.”[65]
[65]T37, L4-6
93 The plaintiff confirmed that, nevertheless, his partner has been very supportive.
94 When Senior Counsel for the defendant put to the plaintiff that it is “fair to say” that the plaintiff had as much treatment now for his back condition as he had in 2009 when in Queensland – that is to say “nothing” – the plaintiff stated:
“I, ah – I tend to be a little bit cautious on how much time I take off in the way of receiving treatment, um, due to work and life situation, having a young family.”[66]
[66]T38, L3-6
95 The plaintiff was referred to the records of the Warragul Osteopathic Clinic and, in particular, the initial document where the plaintiff has recorded:
“[H]ad back problems for a while. Tried a few things, with no success, so decided to try Osteopathic Treatment”[67]
and “No”, whether this problem related to a WorkCover/TAC Claim.
[67]See exhibit “B”
96 Thereafter, the following evidence was given:
Q: “Why don’t you say, well it happened at work?---
A: I honestly don’t know why I didn’t answer that it happened at work.”
HIS HONOUR:
Q:“What was the reference also to "Other back problems" in that document? You had been to a - just read that again.”
MR JENS:
A: “Had back problems for a while, tried a few things with no success.”
HIS HONOUR:
Q:“What were you referring to ‘Back problems for a while’?---
A:That was due to the initial injury.
Q:In 2012?---
A:And 12.”[68]
[68]T40, L4-13
97 Later in his evidence, when pressed about not being precise about the date of injury or not claiming it to be work related, the following evidence was given:
HIS HONOUR:
Q:“Why did at that time you say nothing about this incident which happened in 2012?---
A:I’m not sure 100 per cent um, I was trying to self-manage the injury um, I guess ultimately I was a little bit worried about my employment.
Q:Well I think you’ve said that in one of your affidavits, you said something to the effect you didn’t say about workers compensation but about an injury might impact on your - because you were doing your apprenticeship - - -?---
A:That’s correct, I was an apprentice at the time.
Q:You didn’t want to lose your apprenticeship?---
A:That’s correct.”[69]
[69]T42, L6-17
The re-examination of the Plaintiff
98 Under re-examination, the plaintiff gave evidence that the consultation with Dr Dias on 12 August 2009 in relation to a back injury while moving furniture related to the episode which he initially thought occurred in 2004, 2005 or 2007. In particular, the following evidence was given.
MR O’DWYER:
Q:“Doing the best you can, do you recall between that date - that is the furniture incident and the incident that occurred at work - whether or not you had any back problems, to the best of your recollection?---
A:Previously?
Q: No, between 2009, this furniture incident?---
A: Yes.
Q:The furniture incident, which is now established was 2009 and the incident which occurred on 1 May 2012. Are you able to say whether you had any back problems during that period or not, doing the best you can?---
A:I - I don’t believe I did, no.”
HIS HONOUR:
Q:“What you are being asked, to put it bluntly is, it’s clear enough you’ve gone to the doctor on 12 August 2009 complaining of back pain after moving furniture four days ago. It looks like you got a certificate for a few days and you were examined, some restricted movement of your back, et cetera. And assuming your evidence is correct, you got back to work pretty quickly, only off for a few days. What you are being asked is this.
Between that time and when you had this incident in 2012?---
A:M’mm.
Q:What do you say your back was like?---
A:Um, it became normal and was good again thereafter the 2009 incident.”[70]
[70]T47, L5-26
99 When queried about his recent travelling over long distances, the following evidence was given:
Q:“How did you cope with that?---
A:It’s a bit of a struggle, especially driving a manual.
Q:I just wanted to ask you about that. What was the problem, what problems did you have during that drive, what - - -?---
A:My lower back pain, the difficulty is sitting per se a long period, being comfortable while driving is an issue but I - I make do because I need to attend.
Q: How do you feel when you get to work?---
A: Um - - -
Q: This is on Monday?---
A:A little bit sore but as the day progresses I - I get a little bit better, with help of medication and movement, I guess, in a sense.
Q:What about the drive home?---
A:Um, initially start is not too bad, by the end of the hour-and-a-half, two-hour-odd drive it takes, um, I’m very sore and sort of clamber out of the car and a little bit hunched over and in pain.
Q:What do you do when you get home?---
A:Ah, I take a nice hot shower, I have some medication, try to do a few exercises if I can.”
HIS HONOUR:
Q:“When you say you take some medication, you take what?---
A:Just Nurofen.
Q:Yes, you’re suggesting - or are you suggesting that is every day or are you just suggesting when the pain is bad?---
A:Mostly when the pain’s bad, I try - I try not to take medication every day.
Q:Yes, that’s what I understood your evidence to be, yes?---
A:Um, but yeah, if - if I’m having a flare-up or if the pain gets to a point where I feel I need it, I will take medication.”[71]
[71]T50, L22 – T51, L11
100 At the end of the re-examination, Senior Counsel for the defendant sought further cross-examination, which he submitted he had overlooked, and permission was granted. It was put to the plaintiff that he had had a bad neck, to which he answered “not per se, no”, although he accepted that he may have seen a doctor for pain in his neck sometime before.
Conclusion
101 There is no issue that the plaintiff suffered a compensable injury to his low back during the course of his employment with the defendant on or about 1 May 2012. Based on the evidence of the treating neurosurgeon, Mr Smith, who initially treated the plaintiff, the evidence of the orthopaedic surgeon, Mr Kudelka, who examined the plaintiff on the behalf of the defendant on 21 March 2013, the evidence of the orthopaedic surgeon, Mr Dooley, who examined the plaintiff on behalf of the defendant on 26 July 2016 and 23 July 2018, and also the evidence of the neurosurgeon, Mr Dohrmann, who examined the plaintiff (on behalf of his solicitors) on 9 September 2016 and 24 April 2018, I find that the nature of such back injury was a prolapse on the left side at the L4/L5 level, manifesting itself in low back pain and left-sided sciatica.
102 All of those doctors, with the exception of Mr Kudelka, had access to the MRI scan undertaken in July 2013, which supported the diagnosis of a disc prolapse. The examination by Mr Kudelka pre-dated the MRI scan, but he had available, seemingly, two CT scans which also support such diagnosis.
103 Given that the assessment of “serious injury” must be at the time when the application is heard, I again accept the evidence of the neurosurgeon, Mr Dohrmann, and the evidence of the orthopaedic surgeon, Mr Dooley, that such low back injury on 1 May 2012 has given rise to some impairment of the plaintiff’s low back, and such impairment, again based on the evidence, is “permanent” within the meaning of the legislation. In my view, the critical issue is whether any permanent impairment suffered by the plaintiff in his low back is “serious” within the meaning of the narrative test – that is to say, the proceeding involves a “range” case.
104 Before proceeding to make any findings in relation to any consequences suffered by the plaintiff, I make the finding that the plaintiff is a thirty-one-year-old man who has been in his present relationship for about four or five years with his partner bringing into the relationship a daughter who is presently nineteen years of age and attends Latrobe University, studying veterinary science. The plaintiff has a seven-year-old daughter from a previous relationship who stays at his premises for a weekend every fortnight.
105 The plaintiff presently pays rent, pays approximately $1,000 a month to his stepdaughter to provide for her rent and living expenses while studying at the Latrobe University and also pays approximately $160 to $170 a week in maintenance to his former partner.
106 Several times during his evidence, the plaintiff made it clear that he was very conscious of his commitments to his extended family and was loath to lose time from work for that reason, in particular. Furthermore, the evidence established that when he, in years past, suffered a significant shoulder injury which put him off work for nine months, he not only lost his job at that time, but also lost his first attempt at his apprenticeship to become a boilermaker/welder.
107 The other matter which I wish to touch on is this. There was no direct submission by those acting for the defendant that the plaintiff was not a reliable or credible witness. However, the plaintiff was cross-examined on what was variously referred to by others as “atypical” responses or strange circumstances. In particular, I refer to the following:
(a)The plaintiff gave evidence that notwithstanding his injury on 1 May 2012, which gave rise to persisting low back pain and later left leg referred pain, he did not attend a doctor for some lengthy period of time but, rather, attended a chiropractor for treatment. There was no evidence before the Court of any attendances on a chiropractor and, indeed, when cross-examined, the plaintiff gave evidence he could not recall the name of the chiropractor. In any event, he asserted that such treatment did not really assist his low back pain;
(b)The evidence clearly establishes that, consistent with the evidence of the plaintiff, he then consulted an osteopath – Dr Jessica Nicholls – initially on 18 January 2013. Although the plaintiff made clear to Dr Nicholls that he had had problems for a “while” and tried a “few things” with no success, he did not give any particular history of the incident on 1 May 2012 and perhaps, more particularly, answered “No” to whether his back problem was related to a WorkCover/TAC claim. However, it is also to be noted that the complaints were in relation to the low back, with pain in that area, together with sensory changes in the left leg, with a diagnosis of a diffuse L4-L5 disc bulge;
(c)The first attendance on any doctor on the basis of the evidence before the Court was the report from Dr Perry of the Moe Medical Group, dated 3 February 2014. Seemingly, another doctor at that clinic, Dr Belgaonkar, had seen the plaintiff on referral from the osteopath and had arranged a CT scan of the lumbosacral spine. When Dr Perry initially saw the plaintiff, the history obtained by him was that the plaintiff had hurt his back lifting roofing steel two months prior to that appointment and that his back pain had been getting progressively worse, causing him to attend an osteopath for further assistance;
(d)As I have already recorded, the plaintiff was referred to the treating neurosurgeon, Mr Paul Smith, who saw him, seemingly, on three occasions; 1 July 2013, 6 September 2013 and 11 November 2013. Again, as I have already noted, Mr Smith did find some, of what he referred to as “atypical features”, in the presentation of the plaintiff – that is to say, complaints not consistent with a disc prolapse;
(e)Again, when Mr Dooley last examined the plaintiff and found what he referred to as “inconsistent findings on clinical examination”.
108 I had the advantage of observing the plaintiff being cross-examined and came to the view that he was an impressive witness who, if anything, downplayed his day-to-day experience of pain and the effects of his back condition on his domestic and recreational activities.
109 I tend to the view that, at least initially, the plaintiff was hopeful that being a young man, his back condition would improve (which it did to some extent after the epidural injection) and wished to avoid making any WorkCover claim, given his concerns about his commitment to the family and his past experience of losing his job very quickly after a claim was made.
110 It also must be borne in mind that both Mr Smith, the treating neurosurgeon, and Mr Dooley, the medico-legal orthopaedic surgeon, who although both found some features of the plaintiff’s presentation not overly consistent with a disc prolapse, each ultimately found and were satisfied that the plaintiff had suffered a disc prolapse as a result of his activities on 1 May 2012.
111 Furthermore, Mr Dooley, in his first report, and as he also made reference to in his second report, considered that the plaintiff presented generally as a “sensible and genuine historian”.
112 Indeed, this is also consistent with the view of Mr Dohrmann, that examination of the plaintiff revealed a “cooperative man in whom there was no evidence of functional overlay”.[72]
[72]See exhibit 4 at page 41 PCB
113 The plaintiff made a variety of concessions during the course of his evidence – for example, being able to walk a reasonable distance; vast improvement initially, from the epidural injection (insofar as left leg pain was concerned) and his capacity to do a variety of boilermaker duties – save for the heavier forms of such work.
114 Ultimately, I have come to the view that the plaintiff is a creditworthy witness who was attempting, at all times, to give honest answers to the questions posed to him.
115 In determining the “pain and suffering” consequences, the following matters must be borne in mind:
(a)As stated by the Court of Appeal (consisting of Osborn and Beach JJA) in Ellis Management Services Pty Ltd v Taylor:[73]
[73][2013] VSCA 326 at paragraphs [57]-[59]
“The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.[74]
[74]Reference was made to Humphries & Anor v Poljak [1992] 2 VR 129
Nevertheless the relevant assessment must be made objectively by the Court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.[75]
[75]Reference was again made to Humphries & Anor v Poljak (op cit) at page 137
The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range … .”
Later, in the same decision, the Court of Appeal stated at paragraph [52]:
“… After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.”
(b)I also refer to the Court of Appeal decision in Haden Engineering Pty Ltd v McKinnon,[76] wherein Maxwell P set out various principles in evaluating the “pain and suffering consequences”. I take account of all those considerations. In particular, I refer to paragraphs [14]-[15] under the heading “The disabling effect of pain”, wherein Maxwell P states:
[76](2010) 31 VR 1
“As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[77]
[77]Reference was made to Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[78] What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her]’.”
[78]Reference was made to Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [47]
I also refer to paragraph [17] of the judgment of Maxwell P, whereat he states:
“When judging the pain and suffering consequences for the plaintiff by comparison with other cases, it is relevant to look at the plaintiff’s life expectancy in order to determine the likely period for which those consequences will be experienced.”[79]
(c)I also refer to the Court of Appeal decision of Sutton v Laminex Group Pty Ltd[80] and, in particular, the judgment of Tate JA (with whom Ashley JA and Hargrave AJA agreed), stated at paragraph [80]:
“The respondent made two submissions with respect to the appellant’s stoicism. Stoicism was one of the considerations identified by Maxwell P in Haden Engineering as useful in assessing the pain experienced by a plaintiff, drawing upon the remarks of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2) who said:
‘I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best as he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.’”
[79]Reference was also again made to Stijepic v One Force Group Aust Pty Ltd & Anor (op cit) at paragraph [43]
[80]Op cit
116 After consideration of all of the evidence, and bearing in mind the legal principles to which I have referred, I make the following further findings of fact:
(a)presently, he suffers from constant low back pain which fluctuates in severity and is generally activity-related, and sometimes is unpredictable as to its onset. As a result of such back pain, his range of movement of his back is restricted, particularly in bending forward and lifting objects;
(b)he has leg pain about two to three times a month and this is also unpredictable. Such pain usually stops at the knee, but when the back pain is particularly bad, the pain goes further down the leg into his calf. I also accept that he does have some, now, occasional right-sided low back pain;
(c)he has flare-ups of pain about every three months and, indeed, the last one occurred on or about 13 September 2018;
(d)he does not regularly attend his general practitioner for treatment, but treats himself with Panadol and Nurofen as required. Over recent times, he has been taking four to six tablets a day of Nurofen or Panadol a couple of times a week, and can take up to ten a day when he has his bad flare-ups. It has been recommended after such flare-ups that he undergo a further epidural injection, which has not been undertaken. He has had no further physiotherapy or hydrotherapy over recent years, although he has set up a home gym and does some exercises and yoga regularly.
117 Such back pain and treatment has impacted on various aspects of his life.
Employment
(a) As I have already recorded, the plaintiff is presently employed by Weldtek as a site supervisor, and has been in this job since November 2017. By being a site supervisor, he can avoid the heavier aspects of that type of this employment and, in particular, is cautious in guarding and protecting his back as much as possible – that is, avoiding any heavy lifting or any repeated bending. I do find, based on the evidence of Mr Dooley and Mr Dohrmann, that the plaintiff is incapable of doing all aspects of boilermaking work on a regular full-time basis;
(b) his present job, and his previous job with Surefab, were obtained with the assistance of a friend – Ryan – who manages the present business. Ryan knows of the condition of the plaintiff’s back and is supportive and protective of the type of work that the plaintiff undertakes;
(c) the plaintiff “struggles” when driving a manual vehicle long distances during the course of his employment – in particular, his low back when sitting for too long becomes particularly sore, but he persists with such job because he needs to attend the various sites. If he has to drive a long distance on any particular day, he gets home and his back is particularly sore, requiring him to take a hot shower and, on occasion, some medication, and also he performs exercises to loosen the back;
Social and recreational activities
(d) his recreational and social activities have been impacted in that he is no longer able to play tennis, which he did weekly up to the time of the “injury”, and such was an activity which he enjoyed very much;
(e) he owns two motorbikes, one an on-road motorbike and the other an off-road motorbike, and prior to this injury he drove both motorbikes regularly and, in particular, the off-road motorbike. Although he accepted that he has driven the motorbikes on some occasions since the injury (wearing a back brace), he now finds it difficult to be on the motorbikes for any length of time and, indeed, the off-road motorbike does cause difficulties in his back;
(f) he has difficulty playing with his young daughter, particularly when he has to bend or lift her, or play on the ground with her, and this is an ongoing problem;
(g) he has also experienced problems with sexual intercourse, as such activity can give rise to low back pain;
(h) although he can walk a reasonable distance – he estimates 3 to 5 kilometres – he is limited to what he can do compared to prior to the injury and, furthermore, he is limited in standing in the one position for any length of time;
(i) he also has difficulty with sleep, in that the back pain wakes him up during the night, causing him to lose sleep and impact on his next day’s activities;
Domestic activities
(j) he has difficulty mowing the lawn and tends to avoid this activity;
(k)he does not give the same assistance to his partner around the house and, in particular, has difficulty folding sheets or vacuuming, and although he will on occasion assist his partner when shopping, he tends to push the trolley, which gives him some support when walking around;
(l)he also has difficulty with such things as doing up shoelaces, which provokes pain, although he accepts he is able to perform light domestic chores at bench height.
118 I accept the submission made by Senior Counsel for the plaintiff, that the plaintiff does demonstrate a degree of stoicism, driven, I would expect, by his concerns that he does not wish to lose his present job, particularly so when he has a variety of financial commitments and hopes to ultimately obtain a mortgage to purchase a house with his partner.
119 There was some cross-examination about the assertion of the plaintiff that absent the injury he would have liked to have played football. As he frankly admitted during his cross-examination, he had not played football for many years prior to the injury and such may have been a “pipe dream”. I put little weight on this aspect of the matter, but do accept that he, as a result of this injury, has lost that chance to ever seriously consider a return to football (whether that was to ever eventuate).
120 I am also conscious of the evidence of the neurosurgeon, Mr Dohrmann, expressing the opinion that there is a risk in the order of 10 to 20 per cent over the next five years of recurrent disc prolapse, which can lead to an increase in low back pain and a recurrence of persistent left leg pain.
121 The plaintiff was also cross-examined to some extent about his previous back symptoms and, in particular, was taken to three previous attendances where he has sought medical attention for back symptoms – they being on 28 July 2004, when he attended a doctor complaining of back pain for two days as a result of lifting at work with no radiation of pain; on 9 July 2007, he consulted a doctor in Queensland, complaining of severe back pain, and having some pain off and on in the past and, finally, on 12 August 2009, when he consulted a Dr Dias, complaining of back pain following some moving of furniture four days earlier. He was off work for about three days and the doctor recorded there was no pins or needles in the feet and no bladder and bowel problems. The plaintiff accepted that the latter incident most probably was the incident he recalls after helping a friend to move furniture. In particular, the plaintiff gave evidence that he recovered from that incident in 2009 after a short period, and had no further symptoms until the incident on 1 May 2012. Nothing was put to him to suggest otherwise.
122 In making the evaluative judgment involving a synthesis of matters of fact and degree, I acknowledge that the circumstances of this matter are finely balanced. Clearly, the plaintiff demonstrates that he has a capacity to do most boilermaker duties, however, is unable to perform the heavier aspects of such work. Furthermore, he has minimal treatment and the treatment he does have is limited to tablet medication for severe pain. In particular, I am not satisfied that any one particular consequence satisfies the narrative test.
123 However, after a consideration of all the evidence, I am satisfied, in the circumstances of this matter, and bearing in mind the cumulation of the consequences of the injury to the plaintiff that when judged by comparison with other cases in the range of possible impairments, it may be fairly described as “being more than significant or marked” and as being “at least very considerable”.
124 I should add one other factor which I consider to be relevant to this determination. The plaintiff suffered his prolapse disc injury in his early twenties and the consequences of such injury will have to be borne for the balance of his life.
125 Accordingly, I grant the application for the plaintiff to bring common law proceedings for “pain and suffering damages” in respect of his low back injury suffered by him during the course of his employment with the defendant on or about 1 May 2012.
126 I will hear the parties on the question of costs.
Annexure A
1 The plaintiff tendered the following documents:
Exhibit 1:
·Schedule and Workplace Injury & Disease Recording Form consisting of two pages.
Exhibit 2:
·The plaintiff’s affidavits sworn 24 October 2017 and 21 September 2018.
(Such documents found at pages 7-17E of the Plaintiff’s Court Book (“PCB”).
Exhibit 3:
·Reports from the Moe Medical Group dated 20 February 2013 and 3 February 2014
·Two reports from the treating neurosurgeon, Mr Paul Smith, dated 5 July 2013 and 3 July 2014.
(All such reports founds at pages 18-27of the PCB).
Exhibit 4:
·Medico-legal reports from the neurosurgeon, Mr Peter Dohrmann, dated 9 February 2016 and 1 May 2018
·Medico-legal report from the psychiatrist, Dr John Gill, dated 5 July 2018.
(All such reports found at pages 28-56 of the PCB).
Exhibit 5:
·Beenleigh Village Family Medical Practice notes and clinical records from 25 March 2004 to 26 February 2010
Exhibit 6:
·Moe Medical Centre clinical notes for the period 2011 to December 2013
Exhibit 7:
·United Medical Centre clinical notes for the period 19 December 2013 to 15 September 2017
Exhibit 8:
·Report of the orthopaedic surgeon, Mr Kudelka, dated 22 March 2013.
(See pages 17-19 PCB).
2 The defendant tendered the following material:
Exhibit “A”:
·Medico-legal reports of the orthopaedic surgeon, Mr Michael Dooley, dated 28 July 2016, 5 October 2016 and 14 August 2018
·Report of the occupational physician, Dr David Elder
(Such documents found at pages 1-16 of the Defendant’s Court Book (“DCB”)).
Exhibit “B”:
·Warragul osteopathic clinical records.
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