Ryan v VWA
[2022] VCC 1399
•31 August 2022
plaintiff
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-21-00339
| JEFFERY THOMAS RYAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | Ginnane | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 24 February 2022 | |
DATE OF JUDGMENT: | 31 August 2022 | |
CASE MAY BE CITED AS: | Ryan v VWA | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1399 | |
REASONS FOR JUDGMENT
---
Subject:Serious Injury Application
Catchwords: whether workplace injury overtaken by other non-compensable injury and health
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33; De Agostino v Leatch & Anor [2011] VSCA 249; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Application granted for pain and suffering.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr S Jurica | Shine Lawyers |
| For the Defendant | Mr P Scanlon QC with Mr S Martin | IDP Lawyers |
HIS HONOUR:
1This Serious Injury Application was heard in the Ballarat Circuit. The plaintiff was represented by Mr C Harrison QC and Mr S Jurica of counsel. The defendant was represented by Mr P Scanlon QC and Mr S Martin of counsel. The conduct of the proceeding in Court on behalf of the defendant was undertaken by Mr Martin.
2The plaintiff seeks the grant of a serious injury application pursuant to s335(2)(d) Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). The Application was pursued pursuant to sub-section (a) of the definition of serious injury being injury to the plaintiff’s cervical spine. At the commencement of the hearing Mr Harrison said that the claim brought under paragraph (c) of the definition of serious injury was no longer agitated and neither was a claim for loss of earning. Accordingly, the matter was reduced to a claim for pain and suffering consequences for a physical injury.
The application and the injury relied upon
3As a result of activities undertaken throughout the course of the plaintiff’s employment and specifically on or about 6 November 2014 whilst doing his delivery work the plaintiff experienced severe back pain. The Particulars of Injury (after taking account of the abandonment of the claim under paragraph (c) of the definition) were expressed as:
Lower Back Injury, Lumbar disc injury, involving annular tear at L5/S1, Restriction of movement in lumbar spine, …[1]
[1] Exhibit P2, Plaintiff’s Court Book (‘PCB’) 16.
4Although the spine injury was not expressed in the Particulars of Injury as an aggravation injury, this is plainly what the majority of the evidence suggests, and there was no contest about it by the parties or to the test that applies to such a type of injury. Therefore, because the injury is an aggravation of the plaintiff’s pre-existing spine condition, (a condition that I am satisfied on the evidence was only to some extent symptomatic before the accident), I must ask whether, and if so, to what extent the plaintiff’s current pain and suffering consequences are attributable to the work caused aggravation and if the same is serious.
Relevant legal principles
5The definition of “serious injury” contained in 325(1) of the Act which reads:
“‘Serious injury’ means –
(a) Permanent serious impairment or loss of a body function ….”
6The 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 s325(1) of the Act.[2]
[2] Section 335(5) of the Act.
7To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of, or in the course of, or due to the nature of employment;[3]
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[5]
[3] Section 327 of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33 (‘Barwon’).
[4] Barwon [2005] VSCA 33, [33].
[5] Section 325(2)(c) of the Act.
8The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
9In determining the “consequences” of the injury, the Court is required to consider the consequences to this plaintiff, viewed objectively, arising from the injury.
10In determining the application, the Court:
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]
must assess whether “the injury” is a “serious injury” as at the time the application is heard;[7]
must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[8]
[6] Section 325(2)(h) of the Act.
[7] Section 325(2)(j) of the Act.
[8] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
11The question of whether an injury satisfies the narrative test is largely one of impression or value judgment.[9]
[9] See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
The evidentiary analysis
12The evidence is that in the years following his work injury with his employer on 6 November 2014, and after ceasing employment with it, the plaintiff obtained other employment. This other work with Metro Urban was less strenuous for the plaintiff than the work he did with the defendant and he managed to acquit himself with this work despite back pain until he suffered an ankle injury.
13After ceasing work with the defendant and entirely separate from his work related injury with it, the plaintiff experienced a number of serious insults to his health. They have been referred to in the plaintiff’s affidavits as well as in a series of medical opinions obtained and relied upon by both plaintiff and defendant. They are not disputed by the plaintiff but their effect on the activities of daily living that the plaintiff says he once enjoyed and the pain and imposition they have wrought as a result as opposed to the work injury were heavily contested. The plaintiff characterised them as far less impactful than his spine injury. The defendant endeavoured to cast them as having very significant consequences to the plaintiff’s existence. The reason for the contest being joined is obvious: only the effects and consequences to the plaintiff of the work injury and any aggravation to an existing condition from it can be taken into account in assessing whether an injury or an aggravation to the function of a body part is very considerable and therefore serious.
14Before addressing the competing evidentiary accounts, it falls to the plaintiff to disentangle the various contributors to his pain and disability in order to:
· firstly, identify the physical injuries sustained in the workplace and the impairment by way of aggravation if any of spinal function attributable to that work injury.
· secondly, identify the pain and suffering attributable to the aggravating impairment to the spinal function so caused.
· thirdly, measure and exclude pain and disability referable to the pre-existing spine or subsequent injury or other conditions.
· fourthly, establish that the consequences of the aggravation are at least very considerable and certainly more than significant or marked.
15The obligations mentioned above that the plaintiff must meet merely reflect that the plaintiff is required to establish that “the injury which has been caused by or is the result of the relevant accident [is]…a “serious injury.”[10] The plaintiff’s claimed aggravation must, by reference to its consequences, itself be a “serious injury,” giving due recognition to the fact that injury may be the product of more than one cause.[11]
[10] Petkovski v Galletti [1994] 1 VR 436, 444.
[11] De Agostino v Leatch & Anor [2011] VSCA 249.
16In accordance with Petkovski v Galletti,[12] I must consider the plaintiff in respect to consequences immediately before the 6 November 2014 injury and his consequences today. I am required to determine whether on the balance of probabilities any additional consequences relied on by the defendant to the spine are referrable to the work injury and, if so, whether they constitute a “serious injury”. If I am satisfied the plaintiff has discharged his burden of proof, then it is also necessary that the injury is long term and permanent. Sensibly, no submission was made by the defendant that in the event the primary matters are found proved in the plaintiff’s favour I should not be satisfied of this requirement.
[12] [1994] 1 VR 436.
Plaintiff’s evidence
17The evidence relied upon by the plaintiff in support of the application comprised:
·Affidavits of Jeffrey Thomas Ryan sworn 29 September 2020[13] and 20 October 2021[14]
[13] Exhibit P1, PCB 6-15.
[14] Exhibit P1, PCB 17-19.
·Affidavit of Jodie Elizabeth Carter sworn 21 October 2021[15]
[15] Exhibit P3, PCB 20-22.
Medical Material
·Letter of Dr Edwin Vivares dated 7 June 2015[16]
[16] Exhibit P4, PCB 35-36.
·Report of Mr Iftekher Mahmud physiotherapist dated 16 June 2015[17]
·Report of Dr Mark Farrugia dated 14 November 2021[18]
·CT cervical spine dated 3 August 2005[19]
·X-Ray Lumbar Spine dated 7 November 2014[20]
·CT Lumbar Spine 11 November 2014[21]
·MRI Lumbar Spine dated 23 February 2015[22]
·CT Thoracolumbar Spine dated 3 July 2018[23]
·Lumbar CT dated 12 November 2021[24]
·Reports of Mr Ponarren Pak dated 27 August 2021,[25] and 16 November 2021[26]
·Report of Mr Paul D’Urso dated 29 October 2021[27] and 24 November 2021[28]
[17] Exhibit P5, PCB 37-38.
[18] Exhibit P6, PCB 39-41.
[19] Exhibit P7, PCB 42.
[20] Exhibit P7, PCB 43.
[21] Exhibit P7, PCB 44.
[22] Exhibit P7, PCB 45.
[23] Exhibit P7, PCB 46.
[24] Exhibit P7, PCB 47.
[25] Exhibit P8, PCB 48 – 54.
[26] Exhibit P8, PCB 60-62.
[27] Exhibit P9, PCB 55-59.
[28] Exhibit P9.
Lay evidence
18The plaintiff adopted the of the contents of his affidavits as true and they comprised his evidence in chief. He was cross-examined.
Defendant’s evidence
19The defendant relied on the following evidence in opposing the plaintiff’s application:
·Report of Dr Reza Sabetghadam dated 14 June 2016[29]
·Reports of Dr David Elder dated 20 April 2018,[30] and 10 May 2018[31]
·Report of Dr Zarrar Chowdary, clinical psychiatrist dated 5 July 2018[32]
·Report of Associate Professor Miron Goldwasser dated 25 October 2019[33]
·Report of Associate Professor Anthony Buzzard dated 13 November 2019[34]
·Reports of Mr Kevin Siu dated 7 December 2021[35] and 25 January 2022[36]
·Medical material of Dr Schachna dated 6 May 2020[37]
[29] Exhibit D1, Defendant’s Court Book (‘DCB’) 34-46.
[30] Exhibit D2, DCB 55-61.
[31] Exhibit D2, DCB 62.
[32] Exhibit D3, DCB 63-77. I have found no need to address this reporting in the course of my assessment and determination of the plaintiff’s application.
[33] Exhibit D4, DCB 78-90.
[34] Exhibit D5, DCB 91-97.
[35] Exhibit D6, DCB 98-105
[36] Exhibit D6, DCB 106-109.
[37] Exhibit D8, DCB 140-150.
Preliminary
20I have read and considered all of the material relied upon by the parties. I have also had regard to the oral evidence of the plaintiff, the cross-examination of the plaintiff and the submissions and addresses of counsel, and the transcript of the proceeding.
21Insofar as the medical material is concerned, I refer only to such parts of the records or reports as is necessary to assist me in the resolution of the issues and upon which the parties relied.
The Plaintiff
22The plaintiff was born in December 1964. He is 57 years of age. He grew up in the Northern Suburbs of Melbourne. He attended Preston East High School. He finished school at the end of Year 11. His working life has involved physical work.
23He recalls first working at an abattoir in Richmond whilst he was still at school. He was there about three years in total. He worked as a general hand and labourer. Next he worked at an abattoir in Preston for about 4 or 5 years and into his mid-20s.
24He moved to Melton in his early 20s where he has spent most of his life until recently.
25In about his mid-20s he was self-employed and worked alongside his former wife operating a contract cleaning business. Subsequently he undertook a course as a security guard and from about 2009 until about 2014 he worked in such a capacity at shopping centres.
26In about 2008 his marriage ended.
27Prior to the November 2014 injury the plaintiff from time-to-time experienced aches and pains related to the physical nature of the work that he was doing.
28The plaintiff’s work with the defendant was as a delivery driver delivering pool and other chemicals to the defendant’s customers. As part of his duties he was required to unload the truck, load the goods on to a trolley or otherwise carry them and then deliver them to the end customer. The work required continuous lifting, bending, carrying, pushing and pulling.
29On or about on or about 6 November 2014 the plaintiff experienced severe back pain whilst doing his delivery work. He thinks that after he finished at work he attended at a GP Clinic in Melton and explained what had happened. He was off work for some time after the incident. Initially he was treated with medication and physiotherapy.
30He attempted to return to work with the defendant but says that no real light duties were available and he only lasted one shift.
31The plaintiff commenced full time employment with Metro Urban as a driver of a street sweeper. He said he would have remained in this work had he not fallen from a truck in April 2016 and sustained injury to his right ankle. In other words the plaintiff’s work injury to his back suffered with the defendant in November 2014 did not prevent the plaintiff obtaining work of a type he believes he would have continued to do but for the April 2016 ankle injury with Metro Urban.
32The plaintiff said that in the past few years he undertook about 10 hours a week at his local GP’s Clinic doing some light office cleaning.
Consequences of back injury
33The plaintiff says the pain in his back affects all aspects of his life and he requires assistance with activities around his home. Specifically his back pain results in the following restrictions:
· pain every day to some degree across his lower back;
· pain into his right buttock and sometimes an altered sensation down his right leg;
· altered sensation in his right thigh; and
· restriction of movement in his spine.
34The plaintiff says that as a result of his November 2014 back injury his ability to participate in sporting and recreational activities has been adversely affected.
35The plaintiff was in his late 40s when he sustained his back injury with the defendant. He said that up until that time he had been very active and, to the best of his recollection, he was able to run and participate in activities such as football and cricket. However, in cross-examination it seems the plaintiff had not played in a footy team for perhaps 7 years before injury. In addition he played golf. Over the years he has also enjoyed breeding Border Collies but in the last few years he has not pursued this activity with the degree of involvement he could previously bring to it. He says he has four dogs. The property on which he resides is about 3 acres and he will supervises the dogs when they are out and about. He has some sheep on the property to keep the grass down. He manages some maintenance about the property but not all that he would like to do. He has a ride-on-mower that he uses that from time-to-time, but his ankle impairment restricts him in its use.
36The plaintiff says he can drive his car locally but longer drives are difficult because of his back pain. He has a parent who is still alive and living in Preston. During 2020 due to COVID-19 restrictions he was unable to visit his parent. However, he says that even before the lockdowns in Victoria, and in the years since his back injury and increasing back pain he had difficulty driving from Melton to Preston. In cross-examination the plaintiff was confronted with the fact of his apparent capacity to drive the sweet sweeper with Metro Urban and work up to 50 hours a week doing so and yet contended that he was unable to manage a domestic drive from Melton to Preston. The conundrum was not resolved by the plaintiff’s evidence.
37The plaintiff says he continues to take pain medication daily consisting of Palexia, Lyrica, Osteo-Panadol and Voltaren. The medication assists him with managing his pain in his right ankle and his back as well as having an ameliorative effect on his mood.
Second Affidavit
38In his second affidavit the plaintiff deposed that in about October 2020 he felt it was necessary to cease his part-time cleaning job at the medical clinic because he was struggling with the consequences of his back injury as well as pain in his shoulders and ankle. Hence he maintained that the surrender of this work was unrelated to his ankle.
39The plaintiff continues to have ankle pain and his ankle injury impacts on his ability to walk for extended periods or on rough terrain.
40The plaintiff’s second affidavit further addressed the nature of the work he subsequently undertook with Metro Urban until he suffered his ankle injury. He says it was less physically challenging than his work with the defendant. It involved driving and operating the controls of a sweeper which he said was a significantly lighter job and one he was able to manage despite his back injury by taking pain medication.
41The plaintiff deposed to continuing low back pain which troubles him every day. The pain is located in his lower back but he also experiences pain in the right buttock and right leg. The pain is worse if he stands for more than about 10 minutes, sits for more than about 15 minutes or performs any activity involving bending or twisting. He said he cannot lift much without experiencing increased pain.
42He says he finds that his aching lower back pain makes it difficult for him to get comfortable and sleep. He tosses and turns and usually does not get a restful night of sleep with the result that he is often tired and needs to sleep in the morning or at times during the day. His partner is unable to share a bed with him because his tossing and turning understandably enough disturbs her.
43The plaintiff continues to require prescription medications for his back pain including Lyrica and Palexia in both a slow release and a fast release form.
44He continues to experience low mood for which he takes anti-depressant medication.
45The plaintiff’s affidavit addressed his before and since injury life. He says he was able to work full-time and participate in active interests outside of work before the work injury with the defendant. He says it is difficult to say if he could have managed working with just his back injury but he thinks that perhaps he could have kept up his driving job or a part-time cleaning job by taking regular pain medications although he could not estimate how long he would have been able to cope.
46The plaintiff says that before his back injury he was able to maintain his property and engage in recreational and social interests including dog breeding and playing social golf. Since his back injury these activities have either ceased or reduced very greatly.
Affidavit of Jodie Elizabeth Carter
47Ms Carter is the plaintiff’s de-facto partner and works as a part-time administrative support officer three days a week in Bendigo. She and the plaintiff have been together for about 6 years. She says she is aware the plaintiff was involved in a workplace accident on or around 6 November 2014 and sustained injuries to his back. She did not know the plaintiff at the time of the November 2014 injury and was unable to comment on what he was like prior to it and before they commenced stepping out together. She says she has noticed a significant decline in the plaintiff’s back symptoms since they first met in 2016. When they met, the plaintiff was working as a cleaner, and was experiencing pain at the end of the working day.
48Ms Carter said she is aware that the plaintiff suffered from other medical conditions/injuries but she said that he is constantly complaining to her of his back pain. She says the plaintiff’s back injuries affect his ability to sleep. He is constantly tossing and turning in bed which interrupts her sleep and sometimes she will sleep in another room. His lack of sleep results in him usually spending the morning or parts of the day sleeping. She says that because of the plaintiff’s inability to bend and lift he is unable to engage in domestic chores around the house and it is usually up to she and her daughter to do the cleaning, vacuuming, washing and cooking. Although the plaintiff will try to help out occasionally with the housework he usually ends up in a lot of pain the next day. She says that the plaintiff struggles to drive long distances. He will drive the short 10-15 minutes trip into Bendigo but usually not further.
Mr D’Urso - Neurosurgeon
49In his first report dated 29 October 2021[38] Mr D’Urso said that the physical activity performed by the plaintiff in the workplace as a delivery driver in November 2014 precipitated the onset of symptoms and contributed to an aggravation of a degenerative lumbosacral motion segment with evidence of facet arthropathy, right sided foraminal stenosis and an annular tear of the invertebral disc. He considered the plaintiff has developed long term incapacity and disability as a result of the initial injury. He thought that MRI imaging of the spine and a physical examination of the plaintiff would be appropriate to assess his current condition more accurately.
[38] Exhibit P9, PCB 55-59.
50In his second report dated 24 November 2021,[39] Mr D’Urso thought that the long term prognosis for the plaintiff’s injury to his lower back is likely to be satisfactory. He regarded the plaintiff to be symptomatic from facet arthropathy at LS-S1 with a degree of foraminal stenosis for the exiting right LS nerve root. He considered that future treatment should consist of conservative management under the supervision of a general practitioner and a physical therapist.
[39] Exhibit P9.
Dr Farrugia
51Dr Farrugia is the plaintiff’s GP, and in a report dated 14 November 2021,[40] said that he had not been involved in management of the original work place incident, but it appeared that the plaintiff’s symptoms commenced after the work incident. He said the plaintiff continues to suffer pain in the lower back and difficulty with mobility but that the position is complicated by other health issues from which the plaintiff suffers and that share similar symptoms.
[40] Exhibit P6.
52Dr Farrugia says that it has been some time since he last reviewed the plaintiff but he has no reason not to regard the plaintiff’s disc injury and arthropathy as other than permanent.
53Dr Farrugia said that the plaintiff had told him that his back injury severely impacts his activities of daily life. He is unable to run, walk for long periods of time, play golf, drive, bend or lift, socialise or maintain his property or attend to any of the chores around the house.
54Dr Farrugia wrote that he expects that the plaintiff will likely have lower back pain for the rest of his life but he is guarded in his opinion due to the chronic nature of the plaintiff’s symptoms and his lack of involvement in the management of the plaintiff’s back condition “as we have mainly been focused on other issues since 2017.”[41]
[41] Exhibit P6, PCB 39.
55Mr Pak is an Orthopaedic Surgeon who in a report dated 27 August 2021[42] for the plaintiff prepared after conducting an examination of the plaintiff mentioned that “In the past, Mr Ryan had hobbies including football, cricket, basketball, and he also enjoyed showing dogs. He is unable to do these activities currently”.[43] He recorded that the plaintiff lives in a small home but does have a garden. He does not participate in any housework or gardening and leaves this to his partner and her daughter or hires a cleaner or gardener to maintain the house.
[42] Exhibit P8, PCB 48-54.
[43] Exhibit P8, PCB 50.
56Mr Pak referred to a CT scan of the plaintiff’s lumbar spine taken on 11 November 2014 that demonstrated facet joint arthropathy at the lumbosacral junction with osteophytic spurring causing encroachment of the right L5-S1 exit foramen. He said that an MRI scan of the lumbar spine of 23 February 2015 demonstrated an L5-S1 left paracentral disc tear but no herniation. There was an L5-S1 facet joint arthropathy causing contact but no impingement of the right L5 nerve root.
57Mr Pak said that imaging demonstrated L5-S1 facet joint arthropathy as well as an annular disc tear with no nerve root compression and that such findings so close to the injury would indicate that the plaintiff had pre-existing degenerative changes of the lumbar spine. He said that the plaintiff suffers a degenerative condition affecting the lumbar spine that is likely to progress over time. The plaintiff also has fibromyalgia which is being managed by his rheumatologist. This is likely to trouble him for the foreseeable future.
58Mr Pak said that the plaintiff had suffered a right ankle injury for which he was scheduled to have a ligament reconstruction but the procedure was cancelled due to the development of an acute myocardial infarct. The plaintiff has decided not to proceed with surgery to the right ankle with the result that Mr Pak thinks the ankle instability is likely to continue.
59Mr Pak also reported that the plaintiff suffers from a degenerative condition affecting his lumbosacral spine and was found to have facet joint arthropathy and an annular tear of the L5-S1 disc on imaging. Whilst Mr Pak believes this is likely to have pre-dated the accident of 6 November 2014, in his opinion the accident is a significant aggravating factor to the plaintiff’s pre-existing degenerative lumbar spine.
60Mr Pak thought that due to the degenerative condition affecting the plaintiff’s lumbar spine and ongoing symptoms, he will be restricted in his ability to undertake physical work. He did not think the plaintiff should undertake heavy lifting of more than 10kg. He should not be made to perform repetitive bending activities in relation to the lumbar spine.
61Mr Pak said that the plaintiff is unable to perform housekeeping and gardening which he leaves to his partner and her daughter. He previously enjoyed playing sport including football, cricket, and basketball. He is unable to participate in these activities now although he said it is important to note that this is not just solely due to the back injury but due to fibromyalgia and issues with his right ankle.
62In his second report dated 16 November 2021,[44] Mr Pak wrote that although the plaintiff is likely to have had pre-existing degenerative changes of the lumbar spine, based on imaging close to the time of his work-related back injury demonstrating degenerative changes, his work exerted a significant load and repetitive load on his lumbar spine. As a result, his lumbar spine symptoms have become significant enough to prevent him from continuing with the same type of work. He has gradually tried to alter his work to reduce pain from the lumbar spine, but this has not been effective at controlling the symptoms. He thinks the plaintiff is likely to suffer from ongoing discomfort for the foreseeable future.
[44] Exhibit P8, PCB 60-62.
63In summary, the work-related aggravation does continue to cause his current lumbar spine symptoms which include pain and restrictions.
64Mr Pak in his first report had commented on a restriction of 10kg of lifting. Mr Pak believes the plaintiff should continue to limit lifting to 10kg as any more than this is likely to cause significant discomfort in his lumbar spine. As a result of persisting lower back pain, he believes the plaintiff is unable to sit for prolonged periods and this will certainly have an impact on his ability to drive for extended periods. Standing for prolonged periods also causes aggravation in his lower back pain. Bending and twisting of the lumbar spine will similarly cause aggravation of his symptoms.
Dr Vivares
65Dr Vivares was the plaintiff’s general treating practitioner at the time of the work injury with the defendant. He considered the plaintiff’s back condition to be materially contributed to by his compensable injury. He noted the diagnosis and history of the plaintiff’s L5-S1 left paracentral annular disc tear and L5/S1 right facet joint arthropathy.
Mr Mahmud
66Mr Mahmud is a physiotherapist who provided a report dated 16 June 2015.[45] He diagnosed the plaintiff as suffering a lower back strain and pain sustained at work on 6 November 2014 while trying to lift and carry loads with bending from his lower back. Mr Mahmud considered the plaintiff’s injury was consistent with his workloads. He reported that while receiving physiotherapy treatment, the plaintiff was permitted to start light duties, with no lifting 3kgs at work, but that his pain worsened, and that the only light duties available for him were repetitive cleaning duties that aggravated his pain.
[45] Exhibit P5, PCB 37-38.
Defendant reports
67Dr David Elder wrote in the first of his two reports dated 20 April 2018,[46] and 10 May 2018[47] that the plaintiff suffered an inversion injury to the right ankle. He had seen two orthopaedic surgeons who suggested a reconstruction. He was booked in for surgery but suffered a myocardial infarction requiring stent insertions. In the immediate aftermath he suffered from a TIA requiring neurological review but no abnormality or cause for the numbness affecting his left hand was found. He was cleared from a cardiological point of view to have his ankle surgery but heart issues intervened.
[46] Exhibit D2, DCB 55-61.
[47] Exhibit D2, DCB 62.
68The history the plaintiff recounted to Dr Elder included his ability to drive. He said he uses the right foot for the accelerator and the left foot for the brake. He spends his day walking around a few hundred metres at a time but does not go shopping on his own. He said he can help with light household chores such as the dishes. He estimated a walking tolerance of about 15 minutes. He avoids stairs. He is independent in self-care. He can stand on the shower mat to dry his feet to avoid standing on one leg. He made no mention of sports, hobbies, and recreations.
69Although the plaintiff exhibited some abnormal illness behaviour Dr Elder assessed the plaintiff to present with a genuine restriction in movement in all planes. He said he had the opportunity to observe the plaintiff walking when he left the consultation room and he appeared to exhibit difficulty with the slightly uneven ground and walked with a limp.
Associate Professor Buzzard
70In a report dated 13 November 2019 Professor Buzzard wrote that the plaintiff suffered from a soft tissue injury to the low back region as a result of the incident of injury described. He was investigated and treated conservatively. He considers thinks the plaintiff’s ongoing symptoms to not be indicative of significant pathology but that he does present with unrelated comorbidities.
Mr Siu
71Mr Siu is a neurosurgeon from whom two reports were furnished. Mr Siu’s report of 10 December 2021[48] incorporates the plaintiff’s history that after the incident on 6 November 2014 he did work of a different type and it was whilst working in this job that he injured his ankle and suffered a heart attack.
[48] Exhibit D6, DCB 98-105.
72The plaintiff’s treatment for the back has been conservative with medications, including Endep, Lyrica, Palexia, Panadeine Forte and Voltaren. Physiotherapy and hydrotherapy did not provide the plaintiff with good relief of symptoms.
73Mr Siu recorded a high level of self-assessed pain by the plaintiff with a rating at 8/10.
74Mr Siu diagnosed the plaintiff to suffer from an aggravation of pre-existing lumbar spondylosis.
75Mr Siu observed that the plaintiff was able to work for three years as a cleaner, but more recently, needed to reduce his hours and then cease altogether in 2020 because of persisting symptoms of back pain.
76Mr Siu considered that the plaintiff’s aggravation in November 2014 should have settled in a matter of months. Therefore, in the absence of it having done so, he excluded the plaintiff’s current incapacity as due to his employment with the defendant.
77In Mr Siu’s opinion the plaintiff’s current level of impairment is minimal but that it is likely that with persisting symptoms he may have developed a chronic pain syndrome.
78In his second report dated 25 January 2022,[49] Mr Siu reiterated his opinion that the aggravation should have settled but that it is not uncommon for a patient to continue to complain of symptoms, despite a diagnosis of a soft tissue injury.
[49] Exhibit D6, DCB 106-109.
79Mr Siu noted that the November 2014 injury was such that after ceasing work for a number of months the plaintiff was able to return to full time work in a different capacity and had also worked as a cleaner in 2017 for approximately three years.
80Mr Sui said that his examination of December 2021 suggests that the plaintiff suffered an exacerbation of his lumbar spondylosis in 2014. His symptoms have persisted but he suggests that age-related degenerative changes are more likely than not causing his symptoms and not the work-related incident. Thus, the plaintiff’s present incapacity is not due to the employment of 2014.
Dr Sabetghadam
81Dr Sabetghadam is an occupational physician who provided a report dated 14 June 2016[50] that addressed the plaintiff’s ankle injury. Dr Sabetghadam said that the plaintiff had not had physiotherapy for the ankle but rather attended himself to hydrotherapy pools. The plaintiff told Dr Sabetghadam that he has problems with pressure on his right foot and was unable to tolerate his full weight on it. He feels sharp pain intermittently and he favours his right leg all the time due to the pain in the right foot and ankle. Initially the plaintiff said the pain was 8/10, but on the date of examination and following 8 hours of work, the pain was 5/10. The plaintiff was taking Panadeine Forte at night-time, 1 or 2 tablets, and had stopped attending hydrotherapy since he finished his return to work plan and resumed his pre-injury hours.
[50] Exhibit D1, DCB 34-46.
82Dr Sabetghadam reported that the plaintiff “…does not have a problem with sitting. He reported that driving most of the time is okay but sometimes braking in some trucks is difficult due to the stiffness of the brake system. He stated that his sleep is alright and he is able to participate in household chores and grocery shopping. He is able to take the dogs for a short walk and he plays with his dogs in the backyard when he is not working.”[51]
[51] Exhibit D1, DCB 37.
83The plaintiff said that he was suffering from right ankle pain, right foot pain and that he could not fully weight bear on his right leg. Dr Sabetghadam reported that whilst the plaintiff did not have a capacity to drive a truck he was able to drive his private vehicle for short distances.
Associate Professor Goldwasser
84Associate Professor Goldwasser provided a report dated 25 October 2019.[52] He said the plaintiff identified that his symptoms elicit pain that pain ranges from 5/10 to 7/10. The plaintiff told Associate Professor Goldwasser that the movement in his right ankle and foot is not as good as it used to be and that he cannot run and it is difficult for him to kneel or squat. Associate Professor Goldwasser said that the plaintiff is prescribed Lyrica 75mg and takes two tablets, twice a day as well as prescribed pain medication which he takes three times a day and that he supplements with over the counter medication, namely Panadol Osteo, of which he takes about six tablets a month. Associate Professor Goldwasser reported that there has been no major change to the ankle and right foot change for a long period of time and he had no current plan for surgical treatment.
[52] Exhibit D4, DCB 78-90.
Dr Schachna
85The defendant relied on a series of letters from Dr Schachna, rheumatologist to Dr Farrugia. In a letter dated 24 April 2019, Dr Schachna noted that the plaintiff for two years prior was troubled by widespread musculoskeletal pain, much of which was to the neck and shoulder girdles and radiates down the spine. Dr Schachna’s sense was of a clinical presentation consistent with central pain sensitisation and fibromyalgia syndrome and that the plaintiff identifies with the commonly associated features of the disorder which includes poor refreshing sleep, fatigue and irritable bowel symptoms.
86In a letter from June 2019, Dr Schachna had the impression that the plaintiff was presenting with a connective tissue disorder, with scleroderma and lupus features. He was given a trial of prednisolone 15mg daily and commenced on Plaquenil 200mg daily, as tolerated.
87In a letter from August 2019, Dr Schachna observed a tolerated increased dosage of prednisolone back to 7.5mg daily and added mycophenolate mofetil 500mg BD.
88By letter dated 23 September 2019 Dr Schachna was concerned with a connective tissue disorder and he noted that the plaintiff was tolerating mycophenolate mofetil without side effect.
89In a letter dated 8 January 2020, Dr Schachna said the plaintiff was reviewed for his connective tissue disorder characterised by inflammatory polyarthritis, Raynaud's phenomenon, puffy fingers and discoid lupus lesions in the scalp.
90In a letter dated 6 May 2020 Dr Schachna noted that the plaintiff attended for an in person review. He recorded that the plaintiff has “a connective tissue disorder characterised by inflammatory polyarthritis, Raynaud's phenomenon, and puffy fingers.”[53] There was no discoid lesions in the scalp as per the dermatologist who performed a skin biopsy. Dr Schachna reported that the plaintiff was to reduce the dose of prednisolone down to 5mg daily, an increase in dose of Endep to 25mg nocte and reduce Lyrica down to 75mg nocte.
[53] Exhibit D8, DCB 140.
Submissions
91The parties agreed that in the period 19 July 2015 to 25 July 2019 the plaintiff’s medical record is of two attendances on doctors for back pain, that is, on 2 March 2018 for low-back pain and on 17 August 2018 for mid-back pain. There are three further references to pain more generally. On 12 October 2018 there is a reference to “pain issues.” On 8 May 2019 there is a reference to “fair bit of pain” and on 17 April 2019 there is a reference to “chronic pain”. These references do not specify a specific body part or body function to which the pain is associated. It was further agreed by the counsel that there are attendances in the clinical notes after that period as well as for treatment after that period that was not the subject of cross-examination of the plaintiff.
92The defendant concedes that the plaintiff suffered an injury through his work and that the injury aggravated a pre-existing degenerative spine but contended the aggravation is not of sufficient order to constitute a serious injury.
93Mr Martin submitted that in circumstances in which two different injuries are concurrently producing pain and suffering consequences for a plaintiff it will ordinarily be necessary to make findings about all the pain and suffering consequences which are operative at the date of hearing as an essential precondition to the task of deciding which pain and suffering consequences are attributable to which injury.[54]
[54] Peak Engineering & Anor v McKenzie [2014] VSCA 67.
94Mr Martin referred to the report of Mr Pak who having been asked to assess the current effects of the plaintiff’s injuries and who said:
“Mr Ryan previously enjoyed playing sport including football, cricket, and basketball. He is unable to participate in these activities now. It is important to note that this is not just solely due to the back injury but due to fibromyalgia and issues with his right ankle.”[55]
[55] Exhibit P8, PCB 52.
95Mr Martin argued that the plaintiff had failed to undertake a necessary analysis to enable a determination of the effects on the plaintiff of his work injury as opposed to his other injuries.
96In addressing the nature of the plaintiff’s injury and whether sufficient to found the application for the grant of a serious injury certificate, Mr Martin relied primarily on the opinion of Associate Professor Buzzard, who said that the plaintiff presented with a soft-tissue injury to his spine which had been investigated and treated conservatively but whose symptoms are now not indicative of serious pathology.[56]
[56] Exhibit D5, DCB 95.
97In conjunction with the reporting of Associate Professor Buzzard, the defendant relied on the opinion of Mr Siu and his reports of 7 December 2021 and 24 January 2022. Mr Martin submitted that in Dr Siu’s opinion, the plaintiff’s diagnosis is that of an aggravation of pre-existing lumbar spondylosis but that such aggravation should have settled in a period of a few months and the fact that it had not, did not lead him to assess the November 2014 injury as the cause of the plaintiff’s current spine condition. Mr Siu also assessed the level of the plaintiff’s impairment as minimal and did not, for example, indicate a need for surgery.
98The defendant submitted that the plaintiff has required minimal treatment. In the period after the accident there was some attendances on a general practitioner, and there was physiotherapy, but no referrals to specialists, and by the middle of 2015 the plaintiff was able to commence employment with Metro Urban on a full-time basis and this continued until 7 April 2016 when the plaintiff suffered the ankle injury. Thereafter, and until 2019, the plaintiff has had minimal treatment.
99Mr Martin pointed out that the medico-legal practitioners engaged on behalf of the plaintiff arrive on the scene many years after the subject injury and their opinions should be assessed in this light.
100Mr Martin submitted that the plaintiff’s co-morbidities are significant. His cardiac condition required three stents. He suffered a mild stroke. He has fibromyalgia. Dr Schachna has reported that the plaintiff has widespread musculoskeletal pain and the effects of fibromyalgia included a need to lie down in bed due to extreme fatigue.
101The plaintiff has Lupus that appears to restrict his ability to go out in the sun for long periods of time, and so might reasonably be thought to impact an ability to participate in recreational activities according to the defendant.
102Mr Martin submitted that the plaintiff’s ankle condition was significant and resulted in common law proceedings that resolved. The plaintiff’s affidavit acknowledged significant ongoing problems with the ankle and he also accepted in the hearing that he still has significant ankle pain that it restricts his activities.
103Furthermore, the ankle condition prevented the plaintiff being able to get back to full-time employment. Surgery was recommended but did not proceed because the plaintiff suffered a heart attack.
104The defendant submitted that the impact of the ankle injury on the plaintiff’s recreational pursuits has been greater than the consequences of the low-back condition because it fundamentally affects the plaintiff’s ability to walk and to be on his feet for prolonged periods of time. Mr Martin pointed to the fact of the ankle injury and its condition adversely affecting the plaintiff’s ability to drive long distances.
105Mr Martin submitted that although the plaintiff testified that he has ongoing back pain which limits his ability to drive he was working up to or more than 50 hours a week on occasions with back pain. Mr Martin submitted that there was an absence medical of a deterioration at a point in time to the effect that the plaintiff can no longer sit down for that same amount of time over a working week.
106Mr Martin submitted that the plaintiff's inability to work is not caused by any spinal condition. He obtained full-time employment after the back injury and said that if he did not suffer his ankle injury he would have hoped to have continued working with Metro Urban.
107As to any suggestion the spinal condition might affect the plaintiff’s ability to lift, Mr Martin relied on report of Associate Professor Buzzard that the plaintiff’s work capacity referrable just to the back condition was a capacity that involved reasonable lifting, bending and the like with lifting being restricted to up to 20 kg.[57] Mr Martin further submitted that if the Court was not swayed by Associate Professor Buzzard’s opinion, Mr D'Urso, who prepared a report on behalf of the plaintiff said that the plaintiff’s recommended restriction on lifting should be limited to 15 kgs[58] and, thus Mr Martin argued, is not significantly different from Associate Professor Buzzard.
[57] Exhibit D5, DCB 95.
[58] Exhibit P9, PCB 57.
108Mr Martin submitted that the restriction on the plaintiff's ability to walk and at times to be mobile on his feet has been caused by his ankle injury that has a significant impact across a range of the plaintiff’s activities including sport. Mr Martin contended that the Court should be careful in accepting the proposition that the plaintiff was engaged in recreational cricket in the year or so leading up to this accident. Mr Martin submitted that the plaintiff’s affidavit evidence is suggestive that he was not involved in any sporting activities and was in any event his cricketing account is contradictory to a number of histories provided to medical practitioners, that he has not been engaged in sport for 10 years. In any event, Mr Martin submitted, the plaintiff conceded that he had not played football for at least seven years before the accident and that his ankle would stop him being able to bowl and nor would he be able to run with it. Thus the defendant submitted such of those sports upon which the plaintiff might rely by way of consequences are impeded or precluded in any event because of the ankle alone.
109Mr Martin submitted that the Court should be reluctant to accept that the plaintiff’s sleep is subject to significant interference caused by back pain. Whilst the plaintiff’s affidavit addressed difficulties getting to sleep, his evidence is that he now sleeps more as a by-product of fibromyalgia and that any impact on sleep caused by the spinal condition is insignificant.
110As for medication, whilst the defendant accepted that there have been times when the plaintiff has been prescribed medication for back pain, Mr Martin argued that the plaintiff’s ankle has been a far greater author of pain. Mr Martin referred to Dr Schachna who prescribed Palexia for fibromyalgia but not for back pain.
111Mr Martin addressed the evidence of the plaintiff's partner, Ms Carter, and submitted that the fact that she was not subjected to cross examination does not equate to an inevitable acceptance of her evidence[59]. Mr Martin observed that Ms Carter did not know the plaintiff before his back injury and that her deposition is silent as to his ankle injury and the impact it has had on him. Furthermore, Mr Martin referred to paragraph 9 of Ms Carter’s affidavit in which she described the impact of the plaintiff's back condition on his ability to maintain his property with no mention being made on the same by the ankle condition has and nor is any reference made to the plaintiff’s fibromyalgia or Lupus with its attendant fatigue.
[59] See, for example, De Agostino v Leach [2011] VSCA 249.
112Mr Martin referred to the opinion of Mr D'Urso, whose first report dated 29 October 2021 having mentioned the condition of the plaintiff’s spine, went on to say that it, “is likely to have stabilised at this time. Jeffery’s condition would appear to have a moderate effect on his social, domestic and recreational spheres.” [60]
[60] Exhibit D5, PCB 59.
113Ultimately Mr Martin submitted that the consequences to the plaintiff as a result of the accident do not satisfy the serious injury threshold. Whilst the plaintiff’s consequences might not be regarded as trivial, Mr Martin argued that they should not be assessed as being more than significant or marked.
Plaintiff Submissions
114Mr Harrison submitted that in accordance with Grech v Orica Australia Pty Ltd & Anor[61] two or more compensable injuries can be a legally sufficient cause of the same consequence.
[61] [2006] VSCA 172.
115Mr Harrison submitted that in accordance with Peak Engineering & Anor v McKenzie[62] the Court is required to identify all the consequences from which the plaintiff is suffering and then determine if able to do so, which are attributable to which impairment or body part.
[62] [2014] VSCA 67.
116Mr Harrison referred to the decision[63] of Poholke v Goldacres Trading Pty Ltd[64] (‘Poholke’). There the Court of Appeal addressed the approach in assessing pain and suffering consequences of a back injury where there had been an earlier neck injury. The Court said:
“We have earlier set out the passage in which the judge concluded that the pain and suffering consequence of the lower back injury did not meet the statutory definition of ‘serious’ in s 134AB of the Act. Three points arise from that recitation of her Honour’s reasons.
First, the fact that the plaintiff experienced significant pain and discomfort arising from the injury to his neck did not diminish, or in any way devalue, the degree of pain suffered by him as a result of his back injury. That is, the pain, that the plaintiff suffered as a result of his neck injury, did not, for the purposes of the evaluation required to be carried out by the court, in any way detract from the significance of the level of pain and discomfort experienced by the plaintiff as a result of his back injury.
Secondly, although the earlier injury to the plaintiff’s neck had significantly restricted the range and type of activities, which the plaintiff was able to participate in, nevertheless, on the evidence, the plaintiff suffered further disability and limitations on his activities arising from his back injury. In particular, the evidence established that he had needed to reduce further the level of work that he had carried out in his shed, and his attendance at drag races. His social life had been seriously affected by his lower back injury. As a result of his lower back pain, he had to take breaks while driving a motor vehicle. His capacity to play with his young son had also been significantly further diminished. While it is correct that the plaintiff’s lifestyle had already been severely affected by his neck injury, what remained was important to him. In that context, the further limitations, resulting from his back injury, were not insubstantial.
Thirdly, and importantly, the plaintiff gave evidence as to a number of everyday functions that he performed in his daily life, such as showering, going to the toilet, and getting into bed, which had been significantly affected by the injury to his lower back. The fact that the plaintiff had had to make adjustments to the manner in which he carried out those quotidian tasks was of itself important, but, in addition, it demonstrated the additional degree of disability suffered by the plaintiff in performing basic daily functions of life as a result of his lower back injury.
The description given by the plaintiff of the pain that he suffered was of a high level. For a person whose life had already been diminished by a serious neck injury, the further disabilities resulting from his back injury deprived him of a significant degree of his residual capacity to engage in recreational activities, impacted heavily on his social life, and interfered significantly with the minutiae of his daily living.
In that respect, an evaluation of the plaintiff’s pain and suffering consequences is also informed by the significant reduction in the duties that he performed while he remained in employment with the defendant after he sustained the injury to his lower back. The plaintiff was clearly a person who was nothing but stoic, in the manner in which he had continued to work, full time, as a welder, notwithstanding his serious neck injury. By contrast, notwithstanding the plaintiff’s stoicism, after he sustained his back injury, he was reduced to working light duties. The first light duties, assigned to him — working at a bench putting plumbing fittings together — were too onerous and painful for him. As a result, he was moved to even lighter work in the boom shed. Those changes, and significant reductions, in the plaintiff’s work capacity, after he sustained his back injury, formed part of the objective evidence as to the consequences, in terms of pain, suffering and limitation of enjoyment of life, sustained by the plaintiff as a result of his back injury.
In addition, as earlier mentioned, the plaintiff was a person who had derived great satisfaction, fulfilment and enjoyment from working in his chosen occupation as a welder. As such, his work was an important part of his enjoyment of day to day life. The plaintiff’s dedication to his occupation is demonstrated by the fact that he continued to work in the same capacity full time after he sustained his serious neck injury, in defiance of medical advice that he should not be doing so. The injury to the plaintiff’s lower back in May 2013 spelt the end of that occupation for the plaintiff. As we shall explain later, it also effectively terminated the plaintiff’s capacity to engage in suitable employment. Thus, the injury as to the plaintiff’s lower back had the consequence of depriving him of being able to engage in an important source of enjoyment and satisfaction to him in his daily life.
In light of those matters, the conclusion is irresistible that the pain and suffering consequences to the plaintiff, arising from the injury to his lower back, were more than significant, and should be truly characterised as at least very considerable. Accordingly, the plaintiff should be granted leave in respect of those consequences.”[65]
[63] T72, L26 – T73, L2.
[64] [2016] VSCA 232.
[65] Ibid [109]-[116] (citations omitted).
117The injury to the plaintiff’s back preceded his ankle injury suffered whilst employed by a different company and so, chronologically if not jurisprudentially, is different to the facts that prevailed in Poholke.
118Mr Harrison submitted that whilst the defendant places great store on the significance of the effects on the plaintiff of the injury to the ankle the fact that the ankle causes pain and restriction of movement need not and should not preclude the consequences from the back injury being a legally sufficient cause to meet the statutory requirement for the grant of a serious injury certificate.
119Mr Harrison observed that the plaintiff’s pain emanates from specific and separate sources, namely his back and ankle and foot.
120Mr Harrison relied on plaintiff’s evidence that the pain from his back is greater than the pain from his ankle and that his ankle pain is triggered by activity, unlike his back, which pain and discomfort is a constant and ongoing state of affairs. Mr Harrison submitted that the plaintiff’s evidentiary account makes sense given that the ankle is a weight bearing joint.
121Mr Harrison submitted that the plaintiff soldiered on with work in spite of his diagnosed back condition until he suffered the ankle injury.
122Mr Harrison contended that the plaintiff worked for many years undertaking extremely heavy physical work. The work performed for the defendant employer was physical work that involved heavy loads of material delivered to various sites. As a result of his back injury the plaintiff is unable to do this type of work and since his injury he has been able to only participate in a diminished level of work and this is reflected by the different and lighter work the plaintiff did with Metro Urban until he suffered the ankle injury with it and the subsequent reduced physicality of the light cleaning work he was required to cease because of his back and shoulder pain and that this is a consequence of significance even though the foot injury may sensibly also be understood as contributing to a diminished capacity for a range of other work.
123Mr Harrison submitted that there is no good reason to disbelieve the plaintiff regarding his pre injury participation in cricket that extended to him having been actively involved in the season before experiencing his back injury. Mr Harrison accepted that both the back injury and the ankle preclude the plaintiff from continuing to play cricket and he cannot demonstrate requisite cricketing skills and so is unable, for example, to effectively coach.
124Mr Harrison submitted that whilst each injury is a cause of the same consequence they are legally sufficient causes of the significant loss to the plaintiff of his pursuit of cricket.
125Mr Harrison derived some support from Mr Siu’s observation that the plaintiff was not feigning functional type symptoms. Mr Harrison submitted that the plaintiff is a simple man who enjoyed simple pleasures.
126Mr Harrison conceded a reliance on the loss of golf as more than a comparatively minor consequential loss from the back injury would be problematical. Mr Harrison, however, submitted that the breeding of dogs and the plaintiff’s involvement with it appears to have been much greater before the back injury than is the current state of affairs. Mr Harrison also relied in support on the plaintiff experiencing some diminished capacity in terms of his capacity to help around the home.
127Mr Harrison addressed the identification and extent of the consequences flowing from the plaintiff’s back injury. He referred to Dr Farrugia who wrote of the plaintiff that, “His low back pain on discussion last week severely impact his ADLs and all aspects of his life. He is unable to run, walk for long periods of time, play golf, drive, bend or lift”[66] and as well the existence of restrictions in terms of bending and lifting, and the ability to “socialise or maintain his property and any of the chores around the house.”[67] Of the plaintiff’s prognosis, Dr Farrugia said that the plaintiff will likely experience low back pain for the balance of his life.
[66] Exhibit P6, PCB 39.
[67] Exhibit P6, PCB 39.
128Mr Harrison referred to Mr Pak who reported that, “I examined Mr Ryan’s lumbar spine. This demonstrated loss of lumbar lordosis with reduced range of motion and irritability of the spine on movement. Neurological examination of the lower extremities was normal with normal power, reflexes and sensation.”[68]
[68] Exhibit P8, PCB 51.
129Mr Pak when asked, “What is the nature of the back injury”'[69] replied that the plaintiff has a degenerative condition affecting his lumbosacral spine and had “been found to have facet joint arthropathy and an annular tear of the L5-S1 disc on imaging. This is likely to have been pre-existing prior to Mr Ryan’s accident on 6 November 2014 but the accident is a significant aggravating factor to his pre-existing degenerative lumbar spine.”[70]
[69] Exhibit P8, PCB 51.
[70] Exhibit P8, PCB 51.
130Mr Harrison also relied on the reporting by Mr D'Urso who having been asked, “Is the work related aggravation to his lumbar spine condition likely to restrict or inhibit his ability?”[71] said, “I would place permanent restriction on Jeffery Ryan's physical capacity. He should not perform repetitive bending, twisting or lifting activity. Jeffery should avoid lifting weight below the knee or above the shoulder. Jeffery should avoid lifting weight in excess of 15kgs. Jeffery should avoid working in confined spaces or climbing at height on steps or ladders. Jeffery should be able to ambulate freely and avoid sitting, standing or walking postures in excess of 30 minutes at a time. These restrictions are likely to be of a permanent nature into the foreseeable future.”[72]
[71] Exhibit P9, PCB 57.
[72] Exhibit P9, PCB 57.
131Mr Harrison submitted that these are significant restrictions for a man of the plaintiff’s age.
132Mr Harrison relied on Mr Pak’s second report dated 16 November 2021[73] who said, “Although Mr Ryan is likely to have had pre-existing degenerative changes of the lumbar spine, based on imaging close to the time of his work-related back injury demonstrating degenerative changes, Mr Ryan’s work exerted a significant load and repetitive load on his lumbar spine. As a result, his lumbar spine symptoms have become significant enough to prevent him from continuing with the same type of work. He has gradually tried to alter his work to reduce pain from the lumbar spine, but this has not been effective at controlling the symptoms. I believe he is likely to suffer from ongoing discomfort for the foreseeable future.”[74]
[73] Exhibit P9, PCB 60-62.
[74] Exhibit P8, PCB 60.
Assessment and Findings
133Two or more compensable injuries can be a legally sufficient cause of the same consequence and so each may be sufficient to found a basis for the grant of a serious injury certificate for pain and suffering. Here the question is whether the extent of the consequences of the first in time work injury to the plaintiff’s back are serious alone in that the impaired function has manifested itself by way of an aggravation with consequences that are more than marked and are significant irrespective of the later foot and ankle injury the plaintiff suffered or other comorbidities.
134If the effects on the plaintiff of the first in time injury was sufficient to degrade his functionality in relation to his activities of daily living and recreational pursuits such as they existed beforehand and such injury is accompanied by medication and by disturbed or unrefreshed sleep and frequent, if not constant pain, and adverse effects on the intimacy of a shared bed or by such combination of factors that are not infrequently indicia that result in the grant of a serious injury, does a later injury affecting another body function but that brings consequences that of themselves have the same or similar effect on some but not all of the same interests or pursuits, extinguish the seriousness of the first in time injury? In the circumstances of this application, I am not satisfied that it does.
135It goes without saying that the consequences from the first in time back injury and its functional consequences by way of limitations and restriction and interference to activities together with pain cannot be assessed as serious if such a finding depends on adding to it the consequences by way of limitation and restriction to activities and function from the unrelated and later ankle injury or other health conditions.
136I am satisfied that the plaintiff has identified the consequences of the compensable injury with sufficient clarity to enable an assessment to be made whether those consequences satisfy the definition of “serious injury” by way of an aggravation to the spine that is serious.
137Taking the consequences attributable to the low back injury to the function of the spine and after excluding those enmeshed with the foot and ankle injury and other health conditions and by comparing it with the other cases in the range of possible impairments, I find that the consequences of the aggravation are more than significant or marked and are serious.
138In summation, I find the plaintiff’s low back injury warrants a determination that he has sustained a serious injury by way of aggravation of the spine.
139I accept Mr D’Urso’s finding that the physical activity performed by the plaintiff in the workplace as a delivery driver in November 2014 precipitated the onset of symptoms and has contributed to an aggravation of a degenerative lumbosacral motion segment with evidence of facet arthropathy, right sided foraminal stenosis and an annular tear of the invertebral disc. Mr D’Urso considered the plaintiff to have developed long term incapacity and disability as a result of the initial injury. I accept the finding in his second report that the plaintiff is symptomatic from facet arthropathy at LS-S1 with a degree of foraminal stenosis for the exiting right LS nerve root.
140The injury to the plaintiff’s back was accompanied by the following consequences that I accept are established on the evidence.
141First, the plaintiff experiences pain most days to some degree across his lower back. This is very different to the description of ankle pain which is associated with weight bearing activity.
142Second, the plaintiff continues to require prescription medication for his back pain but I accept the extent of medication whilst not substantial is ongoing.
143Third, Mr Pak identified as prevailing in consequence of the plaintiff’s back injury a loss of the plaintiff’s ability to bend and to lift more than 10 kg.[75]
[75] Exhibit P8, PCB 61.
144Fourth, in consequence of these limitations alone the plaintiff has lost an ability to undertake unrestricted physical work.
145Fifth, in accordance with the opinion of Mr Pak as a result of persisting lower back pain the plaintiff is unable to sit for prolonged periods and that standing for prolonged periods also causes aggravation by way of lower back pain.
146Sixth, in accordance with Mr Pak’s opinion relatively benign and everyday functions such as bending and twisting involving the lumbar spine causes an aggravation of the plaintiff’s symptoms.
147Seventh, the fact that the plaintiff suffers pain when applying weight on his ankle does not diminish the experience of pain and discomfort suffered by him as a result of the earlier in time November 2014 persisting back injury aggravation.
148Eighth, the back pain that has been present since November 2014 will persist indefinitely. The treatment has been conservative and on balance it appears to be a condition that will warrant conservative management and not intrusive procedures. I am not dissuaded from my finding due to the comparatively limited treatment for the condition or medical attendances the relative paucity of which will not always bespeak a lack of seriousness in an overall assessment of an injury or an injury in a stoical man as I have come to regard the plaintiff to be.
149Ninth, the back pain affects aspects of the plaintiff’s limited social and personal life as well as his intimate life because of disturbed sleep. The observation that the plaintiff’s fibromyalgia results in him sleeping more strikes me as a different form of sleep and not necessarily better but it is certainly a matter of contest if its effects on the plaintiff’s sleep operates as an adjunct to the plaintiff’s already unrefreshed condition experienced during the night because of back pain or operates independently so as to override the disturbed sleep to which the plaintiff and Ms Carter deposed exists as attributable to restlessness caused by back pain.
150The plaintiff’s evidence that I accept is that in a reasonably short period following him suffering the November 2014 injury to his back he returned to full time work including it would seem up to 50 hours a week as a driver with Metro Urban. However, he was unable to return to that employment following his ankle injury and not because of the low back injury. The plaintiff said that the work with Metro Urban was less physically challenging and involved driving and operating the controls of a sweeper and that he was able to perform this work despite his back injury so long as he took pain medications. He also said that he placed a pillow behind him in the truck.[76] I note too, and accept that, although neither the November 2014 injury to the back or the later ankle injury precluded the plaintiff doing light cleaning work at a medical clinic for approximately three years, nonetheless the work was light cleaning work of no more than about 10 hours a week. The plaintiff said this part-time employment cleaning work always a struggle because of his back injury and because of increasing problems with his shoulders and led to him ceasing it.
[76] T22, L20.
Conclusion
151The circumstances of this application are different from Poholke as is evident from the following extract:
“although the earlier injury to the plaintiff’s neck had significantly restricted the range and type of activities, which the plaintiff was able to participate in, nevertheless, on the evidence, the plaintiff suffered further disability and limitations on his activities arising from his back injury.”[77]
[77] Poholke [2016] VSCA 232, [111].
152I pause and note that the earlier injury referred to in the extract above and that had “significantly restricted the range and type of activities, which the plaintiff was able to participate in,”[78] was not the injury the subject of the application for the grant of a certificate. Hence the question for the Court in Poholke was if the later injury that supported the serious injury application was of such effect as to have further diminished what little had left been intact for the plaintiff from the earlier injury. As was explained by the Court of Appeal:
“While it is correct that the plaintiff’s lifestyle had already been severely affected by his neck injury, what remained was important to him. In that context, the further limitations, resulting from his back injury, were not insubstantial.”[79]
[78] Ibid.
[79] Ibid.
153In the application before me I have assessed whether the pain and suffering and interference to the plaintiff’s function of the spine by way of aggravation and its effects on his activities of daily living results in consequences that are more than marked and significant and hence serious at the date of hearing. I find that they are. I am not satisfied that their seriousness has been overtaken by the effects on the plaintiff of the later ankle injury or other health impositions for which the defendant is not responsible. The pain and suffering consequences from them operate alongside the aggravation injury to the lumbosacral spine but manifest themselves in ways that are not the same or the same in sufficient a degree by way of pain, restriction and limitation on function to extinguish the ongoing consequences to the plaintiff from the aggravation to his spine. In combination I am satisfied that the effects from the work injury are serious when compared to the plaintiff’s previously largely asymptomatic spine and crystalise in ways sufficiently separately identifiable to warrant a description of them being more than significant or marked, and as being at least very considerable in comparison when judged by comparison with other cases in the range of possible impairments.
154I note that I found the plaintiff gave a credible and honest account of himself overall. Whilst certain inconsistencies were put to the plaintiff by Mr Martin as they related to his ability to drive to his parent or when he last played football and cricket or the details of the assistance he can provide around the house, his credibility was not undermined on matters of fundamental relevance. Also, whilst I accept the observation and correctness in law of Mr Martin’s submission regarding the use to be made of the affidavit by Ms Carter, I am satisfied that such of it as relates to her account of the plaintiff’s low back pain is at least not inconsistent with the plaintiff’s evidence overall and my assessment of his back injury.
155I will grant the application for pain and suffering.
156I order that the parties file a minute of proposed orders to give effect to these reasons with seven days failing which I will list the matter for mention.
0
8
0