Rogers v Transport Permanents Pty Ltd
[2012] VCC 1825
•26 November 2012
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-00882
| LINDSAY MICHAEL ROGERS | Plaintiff |
| v | |
| TRANSPORT PERMANENTS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 14 November 2012 | |
DATE OF JUDGMENT: | 26 November 2012 | |
CASE MAY BE CITED AS: | Rogers v Transport Permanents Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1825 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – application of the principle in Altona Bus Lines & Anor v Lococo
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Altona Bus Lines v Lococo [2002] VSCA 159; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; AG Staff Pty Ltd v Filipowicz [2012] VSCA 60
Judgment: Leave granted for pain and suffering and loss of earnings and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Jordan SC with Mr T Seccull | Slater & Gordon |
| For the Defendants | Mr P Jens with Mr S Smith | Herbert Geer |
HIS HONOUR:
1 This is an application which relies on part (a) of the definition of “serious injury” in ss(37) of s134AB of the Accident Compensation Act 1985 (“the Act”); that is “permanent serious impairment or loss of a body function”. The body function relied upon by the plaintiff is the lumbar spine.
2 The claim by the plaintiff is instituted by an Originating Motion dated 2 March 2011 by which the plaintiff seeks leave from the Court, pursuant to ss(16)(b) of the Act to commence a proceeding which will claim damages for pain and suffering and loss of earning capacity.
3 Mr J Jordan SC, with Mr T Seccull of counsel, appeared on behalf of the plaintiff. Mr P Jens and Mr S Smith, both of counsel, appeared on behalf of the defendants.
The Statutory Scheme
4 The application is brought pursuant to s134AB(16)(b) of the Act and relies upon the definition of “serious injury” contained in sub-paragraph (37)(a) of s134AB of the Act, which requires the plaintiff to prove he has suffered a “permanent serious impairment or loss of a body function”.
5 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.[1]
[1]Section 134AB(1) and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury, and the impairment, must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by ss(19)(a) and ss(19)(b), ss(38)(e) imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity. To arrive at a loss of earning capacity of 40 per cent or more, the plaintiff must compare his income from personal exertion prior to suffering injury with the gross income which he is now able to earn from suitable employment or, capable of earning from suitable employment. “Suitable employment” is defined in s5 of the Act and was amended to operate from 1 July 2010 regardless of when the injury occurred.
(d) Subsection (38)(c) provides the impairment must have consequences in relation to “pain and suffering” and “loss of earning capacity” which, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and, as being at least “very considerable”.
(e) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of an application based on paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Subsection (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more both at the date of the hearing and permanently.
(g) Subsection (38)(j) provides the assessment of “serious injury” is to be made at the time of the hearing of the application.
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately.
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future and, whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c).
(j) Where it is alleged in an application the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[3]
[3][1994] 1 VR 436
6 I have applied the principles set forth therein in reaching my conclusions in this application.
The Evidence
7 The following evidence was adduced during the hearing:
· The plaintiff swore two affidavits and gave sworn evidence, and was cross-examined. The plaintiff’s first affidavit was sworn on 15 October 2010.[4] The plaintiff’s second affidavit was sworn on 6 November 2012.[5]
[4]PCB 6
[5]PCB 14A
· The plaintiff filed with the Court a number of medical reports. Pages 6−114 inclusive and pages 137A and 143 to 161 inclusive of the Plaintiff’s Court Book (“PCB”) were admitted into evidence as Exhibit A.
· The defendants tendered a number of medical reports comprised in its Court Book (“DCB”) at pages 1-7 inclusive and 41-47 inclusive, which I marked as Exhibit 1.
· The defendants also tendered pages 124 to 126 of the PCB, which I marked as Exhibit 3, and notes of a physiotherapist, which I marked as Exhibit 2.
8 In giving consideration to this application, I have considered all of the evidence adduced by the respective parties.
The Central Issue
9 Before turning to the medical evidence, it is important to understand that the issue which I must decide in this application is a relatively narrow one, having regard to the way the hearing of the application was conducted by the parties.
10 The issue which I must decide arises in this way. The plaintiff, who is approaching fifty-five years of age, was employed by the first-named defendant as a truck driver. His work involved some heavy lifting. Up until January of 2004 he had a long recorded history of back complaints. On 28 March 1989, he underwent a cervical spine right-sided C6-7 foraminectomy. The operation was successfully carried out by Mr David Wallace, a neurosurgeon.
11 The plaintiff recovered from this surgery and continued working as a truck driver. The medical notes of his long-time general practitioner, Dr Weinrich, record a number of occasions over a number of years where the plaintiff had complained of flare ups of back pain for which he was treated conservatively from time to time.
12 In January 2004, the plaintiff deposes in his affidavits of circumstances of injuring his back.[6] In summary, the plaintiff deposes as to circumstances where, in the course of delivering a septic tank loaded onto the back of his truck, he had first to operate support struts before a crane on the back of the truck could be used to lift and remove the septic tank. He said: “While I was lifting and placing one of the support struts back into position I experienced a sharp stabbing pain in my lower back. I knew I had hurt myself.”[7] (“the January incident”).
[6]PCB 8 paragraphs 3.5 to 3.8
[7]PCB 8 at paragraph 3.6
13 The plaintiff went on to depose that he reported this incident to his supervisor, one, Shane Stockdale. This evidence was not challenged by the defendants and Mr Stockdale was not called as a witness and he did not swear an affidavit. I accept the plaintiff’s evidence that he did verbally report the January incident to his employer immediately after it occurred.
14 The plaintiff deposed that he continued to have back pain following the January incident but he kept working. He did not see a doctor at the time. He deposed he “took lots of Nurofen for it and just tried to put up with it”.[8]
[8]PCB 8 at paragraph 3.7
15 In evidence, the plaintiff agreed that he had not completed an incident report. He said that the January incident occurred just before Australia Day and he had a three-day weekend, and when he returned to work the next week it was on light duties and he was assisted in his work by having someone accompany him in the truck to do the heavier work.[9]
[9]T 38-39
16 The plaintiff deposed in his affidavits and gave evidence of another incident approximately three weeks later where he suffered further low-back pain. This second incident occurred on 12 February 2004. On that occasion, the plaintiff was driving his truck along a rough stretch of road near Creswick when the truck struck a pothole and a manual switch under the driver’s seat was activated, causing the driver’s seat to suddenly deflate. The plaintiff said: “As the driver’s seat collapsed I experienced bad back pain. When I got back to the yard the pain was really bad and I needed help to get out of the truck and I had to be taken home.”[10] (“the February incident”).
[10]PCB 9 at paragraph 3.9
17 Following the February incident, the plaintiff was off work until the end of February 2004, when he returned on light duties driving a forklift, but this aggravated his symptoms. He had a further one week off work and tried other light duties (office work) before ceasing work at the end of April 2004, and he has not returned to work since.
18 In his affidavits, the plaintiff deposes as to the treatment he has had to his lower back[11] and as to the pain and suffering consequences and the impairment consequences to him as a result of the injury to his lower back.[12]
[11]PCB 9-11
[12]PCB 11-13
19 None of this evidence is in contention and it is accepted by the defendants that the injury to the plaintiff’s lower back is a “serious injury” within the meaning of the Act.[13] For the purposes of this application it was also not in contention that because of his low-back injury, the plaintiff is unemployable and suffers permanent impairment in the form of loss of earnings and loss of earning capacity. He is currently in receipt of a Disability Pension.
[13]See the Defendants’ concession through counsel at Transcript (“T”) 15-16
20 Because the February incident involved the use of a motor vehicle, it was a “transport accident” within the meaning of the Transport Accident Act 1986. I was told by both parties the plaintiff has been granted a certificate by the Transport Accident Commission that the injury suffered by him in the February incident is a “serious injury” for the purposes of the Transport Accident Act.
21 The issue for me to decide on this application is whether the plaintiff suffered a “serious injury” in the January incident within the meaning of the Act and from which he presently suffers pain and suffering consequences and impairment. The plaintiff’s case is that he did. The defendants’ case is that the “serious injury” from which the plaintiff presently suffers impairment of earnings and pain and suffering consequences resulted from the February incident, namely the “transport accident” for which the plaintiff has already received a serious injury certificate.
22 The plaintiff’s case is that the plaintiff suffered a serious injury to his lower back in the January incident and the pain and suffering consequences and the impairment consequences from that injury were continuing when the February incident occurred, and that what occurred in the February incident was, itself, a consequence of the January incident. No doubt conscious of the principle that the plaintiff cannot aggregate the pain and suffering consequences from two separate injuries arising from two separate incidents,[14] Mr Jordan put the plaintiff’s case entirely upon the basis that the February incident and the pain and suffering consequences and the impairment consequences to the plaintiff should be regarded by me on the evidence as being consequences of the January incident. So far as evidence is concerned, Mr Jordan relies upon the opinion of the plaintiff’s treating surgeon, Mr Wallace, to prove the plaintiff’s case.
[14]Petkovski v Galletti [1994] 1 VR 436 at page 443; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; AG Staff Pty Ltd v Filipowicz [2012] VSCA 60
23 So far as legal principle is concerned, I understood Mr Jordan to be relying entirely upon the approach taken by the Court of Appeal in Altona Bus Lines & Anor v Lococo,[15] where Justice of Appeal Buchanan said, at paragraph 12:
“At the conclusion of his reasons the trial judge said that the first of the two ways of demonstrating serious injury which he had earlier referred to, namely, that the subsequent injury would not have occurred but for the first injury, was speculative in this case. When he then went on to say that the 1995 injury made a ‘sufficient contribution’ to enable that contribution to be regarded as serious, I consider that his Honour was stating that the second way of showing the first injury was serious which he had identified earlier in his reasons had in fact been established. In other words, ‘the additional effects [those which became manifest in 1998] are consequences of the original injury’ and were taken into account by him in isolation from the 1998 injury to determine that the 1995 injury produced a "severe long-term impairment of a body function". It was not contended that the evidence was incapable of leading to that result. The question in this appeal was whether the trial judge separately considered the effects of each of the injuries to reach it. In the end I have concluded that he did.”
(my underlining)
[15][2002] VSCA 159
24 As in Altona Bus Lines, so, too, in this application, it was not contended that the evidence was incapable of leading to the result contended for by the plaintiff or that the principle in Altona Bus Lines was not good law and could not be applied by me.[16] Rather, the defendants’ case in summary form is that the plaintiff has suffered from low-back pain as a result of the kind of work he engaged in for many years. They argue the plaintiff had suffered from periodic flare ups of low-back pain from time to time and the low-back pain suffered after the January incident should be regarded as just another flare up situation. The defendants argue the injury suffered in the February incident, be it a new injury or an aggravation of pre-existing lumbar spine degeneration, is a quite separate injury arising from the February incident. The defendants argue that the pain and suffering consequences and the impairment consequences presently suffered by the plaintiff all arise from the February incident and that the plaintiff cannot, as a matter of correct application of law, now seek to aggregate those consequences or impairments in support of his application that the injury arising from the January incident be found to be a serious injury.
[16]T 77
25 The defendants’ case is that the principle in Altona Bus Lines has no application on the evidence which I should find in this application. The defendants’ case is the plaintiff’s current impairments and pain and suffering consequences all arise from the transport accident in the February incident and it is not on risk for that injury.
The Medical Evidence
26 There was a lot of medical evidence tendered but it is not necessary to refer to it all in detail for the purposes of resolving the central issue involved in this application. The defendants have had the plaintiff examined for medico-legal purposes by no fewer than six medical experts. The plaintiff tendered their reports which added little to the plaintiff’s case. None of the defendants’ medical experts disagreed with the final opinion of Mr Wallace, which opinion is critical to the outcome of this application. Counsel for the defendants barely referred to any of the defendants’ expert reports in final submissions.
27 The plaintiff’s general practitioner of many years standing is Dr J Weinrich of the Mair Street General Practice in Ballarat. He has provided a number of reports that were produced in evidence.[17]
[17]PCB 15-33
28 It is common ground that the plaintiff did not immediately attend any doctor for the pain he suffered resulting from his injury in the January incident. Relevantly, the first occasion he attended Dr Weinrich after the January incident was on 13 February 2004, that being the day after the February incident. On that occasion, Dr Weinrich noted as follows:
“Back totally stuffed. Pains up and down back, has been building for the last few weeks and yesterday hit bump in truck and pain +++ between shoulders. Examination: antalgic gait +++.”
29 The defendants point to the fact that the plaintiff did not seek medical attention straight after the January incident and the fact that when the plaintiff did see Dr Weinrich the day after the February incident, he did not make any complaint of having injured his back in the January incident. The defendants point to the fact that Dr Weinrich’s notes make no mention at all of the January incident, suggesting the plaintiff did not see fit to tell him.
30 Dr Weinrich’s notes do however refer to him having been told by the plaintiff that he was then suffering from pain up and down his back and that the pain had been building “for the last few weeks”. That note supports the plaintiff’s case that he remained in pain from immediately after the January incident and up until the occurrence of the February incident. The reference in Dr Weinrich’s notes to a diagnosis of “Antalgic gait +++” also strongly suggests to me that when examined on 13 February 2004, the plaintiff walked with a limp, suggesting the presence of leg pain and a low-back injury.
31 On 6 June 2006, Dr Weinrich reported the plaintiff suffered a “flare up of this injury as a result of hitting a bump in a hardly sprung truck”. The injury of which Dr Weinrich was there referring was the neck injury not a low-back injury. He went on to say:
“From this point on Mr Rogers’ general condition deteriorated. At this stage he was experiencing severe lower back thoracic spine and s L Shoulder pains.”[18]
[18]PCB 15
32 In a report dated 29 April 2009, Dr Weinrich speaks of the opinion he formed when he saw the plaintiff on 13 February 2004. He reported, inter alia, as follows:
“Unfortunately this injury was a real downward turning point in Mr Rogers’ back situation. This jarring injury was responsible for his ongoing disability as detailed below.
The diagnosis at the time was of Soft Tissue Injury of lumbar spine and cervical spine with associated L shoulder pain.”[19]
[19]PCB 18
33 On 13 April 2012, Dr Weinrich reported that the –
“Diagnosis remains multi level lumbar spine injury and consequent degeneration secondary to injury in 2004 and years of heavy lifting in his employment. The requirement for surgery was a natural consequence of deterioration of his injured spine with resultant nerve root compression.”[20]
[20]PCB 25
34 Dr Weinrich referred the plaintiff back to Mr Wallace, a neurosurgeon, in July 2004.
35 There are many reports in evidence from Mr Wallace.[21] In his report dated 1 October 2004, Mr Wallace records what the plaintiff reported to him when he saw him in August 2004. This is important. Mr Wallace reported:
“In August 2004 he reported that he had injured his back in February 2004 when pushing upwards on one of the stabiliser arms of his mobile crane, suffering thereafter severe back pain and left sided sciatica radiating to the heel. He had been quite incapacitated. He had a couple of minor episodes in his right leg. There was numbness and burning in the sole of his left foot.”[22]
[21]PCB 42-58
[22]PCB 42
36 It is clear the plaintiff told Mr Wallace of the facts that I have referred to as the January incident. Mr Wallace opined on 1 October 2004:
“This man suffered a back injury in February 2004, following which he developed severe left sided sciatica. I think he is suffering from a left S1 radiculopathy, probably on the basis of L5/S1 nerve root canal stenosis”.[23]
[23]PCB 43
37 In a later report dated 11 August 2011, Mr Wallace recommended surgical intervention. He opined that the plaintiff’s condition at that time related to the January incident.[24] He makes no reference here to the February incident.
[24]PCB 47
38 On 17 September 2011, Mr Wallace carried out a two-level laminectomy to the plaintiff at L5, L4 and part of L3. He reported that at the end of the procedure there was a “satisfactory decompression of the main thecal sac and of all nerve root canals”.[25]
[25]PCB 50
39 The plaintiff’s solicitors asked Mr Wallace to review the history which he took from the plaintiff when he first saw him for his lower back complaints in August 2004. He did this, and again reported on 18 October 2012. This report is important, for it forms the evidentiary basis for the plaintiff’s case. Although Mr Wallace obviously has recorded the dates incorrectly, it is clear the plaintiff had told him of the January and the February incidents when he first saw him for his low-back complaints. This is what Mr Wallace reported in October 2012:
“He stated that in February 2002, as far as he could recall, he was driving a crane truck which had leg stabilisers, which are operated manually, and one day he was down in a ditch pushing a leg back up, when he was seized with sudden low back pain radiating to the left hip. He kept working, but a few weeks later he hit a bad bump in the road and jarred his back and suffered right scapular pain and low back pain. Since that time, up until my seeing him, he had only had ‘a couple of days off’ and then was working in the office and then had a trial of driving a fork lift. He was referred to Peter Howley, Physiotherapist, and had traction for his back which was unhelpful. He was given injections.
Following the original injury in January or February 2002, the pain radiated down his left leg to the heel. He had a burning sensation in the sole of the left foot. He found a facet joint injection of little help, but possibly became a little more mobile.
I believe the sequence of events in this man was with a background of congenital spinal canal stenosis, which had not produced any symptoms of note, that at that time of the lifting accident which he described as being in February 2004, but whatever the true date, I believe on that occasion he suffered an acute compression of the L5 and S1 nerve roots, that is the nerve trunks passing from the spinal canal out through the nerve root canal, which is a side tunnel on each side behind each disc in the spine. If that side tunnel or nerve root canal is congenitally tight, as it appears to be in this man, the likelihood of a compression injury of the L5 and S1 nerves is much higher than in a person with a nerve root canal of normal size. Having been compressed, the nerve root, which has the consistency of tough pasta, becomes swollen and oedematous, and then the stage is set for easy aggravation of the problem because of the swelling of the nerve root in an already tight nerve root canal.
I believe on the second incident which he described to me of hitting a bad bump in the road that he suffered a further bruising injury of the previously injured nerve roots, leading to aggravation of his low back pain and sciatica.
I believe the initial precipitating event therefore was his accident when attempting to lift a crane leg and that the incident in which he hit a bump in the road caused secondary aggravation of this original injury, but was not itself the initiating injury of this man’s back complaint.”[26]
[26]PCB 53-54
40 I have read all of Mr Wallace’s reports tendered in evidence closely. The reports collectively set out in great detail the plaintiff’s complaints of pain and suffering and limitation of movement following on from the injury sustained in the January and February incidents. The plaintiff has given far more detail to Mr Wallace of his pain and suffering consequences and impairments than he has set out in his affidavits. In summary form, Mr Wallace refers to this as “this man’s back complaint”. Mr Wallace’s report of 18 October 2012 sets out the mechanism of injury. As I read his latest report, the injury sustained by the plaintiff in the January incident was the first link in a chain of events and that what occurred at the time of the February incident was a consequence of what had previously occurred in the January incident, in the result that the plaintiff’s pain and suffering consequences and impairments from which he presently suffers came about.
41 In submissions, Mr Smith addressed the report of Mr Wallace of 18 October 2012 which I have set out above. He argued Mr Wallace’s report is not an opinion which says that if there had not been a lifting incident in January 2004, the plaintiff would not have suffered neural compression and discal injury as a result of running over a pothole in February 2004.[27] I do not accept that submission. I interpret Mr Wallace’s report of 18 October 2012 as saying that, had it not been for the January incident and the injury sustained by the plaintiff at that time, the plaintiff would not have sustained the aggravation injury in the February incident and the pain and suffering consequences and impairments from which he continues to suffer. I accept the evidence from Mr Wallace as to the mechanism of the cause of the plaintiff’s back injury and the cause for the plaintiff’s back complaints. His evidence is powerful, and I act on it.
[27]T 80
42 Mr Smith also submitted that nowhere in Dr Wallace's opinion is there suggestion that the current consequences that the plaintiff experiences are more severe by reason of the lifting incident than they otherwise would have been simply by the running over of the pothole.[28] I do not accept that submission either. I repeat, I interpret Mr Wallace’s report of 18 October 2012 as saying that had it not been for the January incident and the injury sustained by the plaintiff at that time, the plaintiff would not have sustained the aggravation and the consequences that followed from the February incident. It has not been an issue between the parties that the plaintiff’s injury is serious.
[28]T 80
43 I accept and act on the evidence contained in the medical report of Mr Wallace dated 18 October 2012. He was not required by the defendants for cross examination and there was no contrary expert report tendered by the defendants to suggest Mr Wallace’s opinion is wrong. Further, Mr Wallace is the treating surgeon very familiar with the state of the plaintiff’s entire spinal column, having operated on him on three occasions. As all of his reports make clear, he has had access to all of the x-rays and other imaging of the plaintiff. He is the person best placed to give opinion about the state of the plaintiff’s spinal health and the causes of the pain and suffering consequences and impairments from which the plaintiff continues to suffer. Of the many expert opinions assembled in this case, no expert disagrees with Mr Wallace. No other expert has proffered an opinion as to the mechanism of the plaintiff’s low-back injury.
44 The defendants rely upon CT scans taken of the plaintiff on 30 March 2004 and of 10 May 2004.[29] As to the former, it argues it is significant there was no request for a scan of the lumbar spine when in fact the thoracic spine was scanned at that time. As to the later, the defendants argue a CT scan of the lumbar spine noted only slight narrowing of the nerve root canal at L4-5. I do not place any weight at all on these arguments. Neither is sufficient to displace the opinion of Mr Wallace, who seems to have correctly diagnosed and treated the plaintiff’s lower back. As I said earlier, Mr Wallace has had full access to all imaging conducted of the plaintiff both in carrying out surgery to the plaintiff’s lower back and in preparing his many reports. He was not required for cross examination.
[29]PCB 124-126
45 The remaining medical evidence is unhelpful to a determination of what I have called the central issue for me to decide. Mr David de la Harpe saw the plaintiff on referral from Dr Weinrich on 25 February 2009. The plaintiff told him of the occurrence and the circumstances of both the January and February incidents. He thought the plaintiff suffered low-back pain caused by “an initial lifting injury at work which was further aggravated by an axial compression injury driving a truck, both of which have caused him back pain.”[30] I do not place any weight on this report.
[30]PCB 60
46 Mr Schofield, orthopaedic surgeon, saw the plaintiff for medico-legal purposes in February 2011. He opined the January incident “was a likely posterior annular rupture of the L4/5 and or Lumbosacral disc” and “the further aggravation of the annular rupture at L4/5 and/or L5/S1 on 12 February 2004”.[31] I also do not place any weight on these reports.
[31]PCB 67 and 71
47 Mr Geoffrey Klug, neurosurgeon, saw the plaintiff for medico-legal purposes at the request of the defendants and he has provided three reports.[32] In his report of 30 November 2004, Mr Klug found it difficult to define the exact cause of the plaintiff’s low-back pain. He thought on balance it was caused by an aggravation of pre-existing degenerative disorder.[33] I reject the evidence of medical opinion from Mr Klug and prefer the evidence of Mr Wallace, the treating surgeon.
[32]PCB 74-84
[33]PCB 77
48 Mr Paul Kierce, orthopaedic surgeon, also saw the plaintiff for medico-legal purposes at the request of the defendants and he has provided a report dated 17 August 2007. He thought the plaintiff had “severe constitutional lumbar spondylosis which was aggravated by lifting the leg of a crane in 2004, and further aggravated by striking a pothole while driving a truck a week later in the course of his work.”[34] I reject the evidence of medical opinion from Mr Kierce and prefer the evidence of Mr Wallace, the treating surgeon.
[34]PCB 94
49 Mr Timothy Gale, surgeon, also saw the plaintiff for medico-legal purposes at the request of the defendants and he has provided a report dated 24 April 2008. He thought the plaintiff’s low-back problems “may have been symptomatically aggravation of pre-existing degenerative changes involving discs and facet joints at a number of levels in the low lumbar spine region.”[35] I reject the evidence of medical opinion from Mr Gale and prefer the evidence of Mr Wallace, the treating surgeon.
[35]PCB 100
50 As I have already touched upon, there were other medical reports tendered. Two were provided by Mr Simm, who saw the plaintiff for medico-legal purposes on behalf of the defendants. As neither party addressed me on those reports, I treat them as having no relevance to the outcome of this application.
Other Issues
51 The plaintiff was cross examined at length by Mr Smith about two WorkCover forms that he had signed. The first was a Claim Form signed by him on 19 February 2004.[36] That Claim Form was not filled in by the plaintiff but was completed by one, Ashley Alp, a “Safety Manager” employed by one or other of the defendants. The plaintiff signed the form, which was a claim for compensation for the February incident, and the form makes no reference at all to the January incident. The plaintiff was criticised for not referring to the January incident and the defendants argue that the fact the plaintiff signed the form, which only refers to the February incident, demonstrates that in February 2004, the plaintiff himself regarded the pain and suffering consequences and the impairment from which he then suffered as having been caused by the February incident and not the January incident.
[36]PCB 138-142
52 A similar argument was advanced with regard to another similar claim form that related to a claim for impairment benefits that was signed by the plaintiff on 25 January 2008.[37] The plaintiff was also criticised as an unreliable witness with a poor historical recall of the facts. I reject these arguments.
[37]DCB 6-7
53 I observed the plaintiff closely in giving his evidence. He was, in my view, entirely genuine and honest in giving his evidence. True it is he struggles with recall of dates but that, in my view, is because he has suffered from his back injury for so long and has had to have so much treatment over what is now a long period of time from many medical practitioners. The plaintiff is a relatively unsophisticated man with very limited education and poor reading and writing skills which was evident in his evidence. He signed what he thought he was required to sign. In his mind he does not divide the consequences or impairments of his back injury between the January incident and the February incident and at the time he completed the claim forms he did not know of the detailed medical opinion of Mr Wallace which is essential to a proper understanding of the mechanism of his back injury and the consequences and impairments from which he now suffers.
54 It needs to be kept in mind I think, that the January and February incidents were separated in time by a maximum of about three weeks. I find that at the time of the occurrence of the February incident, the plaintiff continued to then suffer the pain and suffering consequences of the January incident. It is understandable, in my view, that for the purposes of completing a claim form, the plaintiff may have merged the two incidents into one. He would not have appreciated any legal distinction between a workplace accident and a transport accident. As I said earlier, the plaintiff did tell his employer of the fact of the January incident.
Conclusions
55 Having regard to the way this application was argued, there is no issue that the plaintiff presently suffers from a serious injury with loss of earnings impairment.
56 I accept the evidence tendered on behalf of the plaintiff from Mr Wallace, the treating surgeon. I find the plaintiff has proved on the balance of probabilities that he suffered an injury to his low back in the January incident, being an acute compression of the L5 and S1 nerve roots of the lumbar spine which, having been compressed, became swollen and oedematous, making them susceptible to easy aggravation because of swelling of the nerve roots in already tight nerve root canals. I find that in the February incident, the plaintiff suffered a further bruising injury of the previously injured nerve roots, leading to aggravation of his low-back pain and sciatica. The injury suffered by the plaintiff in the January incident caused the consequences suffered by him in the February incident from which he continues to suffer the pain and suffering consequences and the impairment consequences described in his affidavits.
57 I find that had it not been for the injury suffered by the plaintiff in the January incident, the kind of injury sustained by him in the February incident would not have occurred and it is probable the plaintiff would not have sustained the pain and suffering consequences and the impairment from which he presently suffers and which it is probable he will continue to suffer for the foreseeable future.
58 The plaintiff will have leave to commence a proceeding against the defendants for damages for pain and suffering and loss of earnings and loss of earning capacity arising from the injury to his lumbar spine sustained by him in the January incident.
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