Shabanov v Locker Group Pty Ltd
[2014] VCC 309
•11 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-03851
| LIRIM SHABANOV | Plaintiff |
| v | |
| LOCKER GROUP PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 and 26 February 2014 | |
DATE OF JUDGMENT: | 11 March 2014 | |
CASE MAY BE CITED AS: | Shabanov v Locker Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 309 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower back – prior injury to right shoulder – disentanglement of consequences of pain and suffering – pain and suffering consequences in a range case – causation
Legislation Cited: Accident Compensation Act 1985 s134AB(16)B
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Ansett Australia Ltd v Taylor [2006] VSCA 171; Jones v Dunkel (1959) 101 CLR 298
Judgment: Leave granted to the plaintiff to bring common-law proceedings for pain and suffering damages and loss of earning capacity damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr G Worth | Herbert Geer Solicitors |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 31 August 2010 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of and in the course of his employment with the defendant. The defendant alleges that the plaintiff was originally injured in December of 2007 and subsequently, on 15 May 2008.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages. The injury suffered by the plaintiff for which he seeks leave to bring proceedings for damages is an injury to his lower back.
3 The following evidence was adduced during the hearing:
·The plaintiff gave evidence and was cross-examined
·Exhibit A – Plaintiff’s Court Book (“PCB”) pages 9-17d; 22-69; 89 and 107-226
·Exhibit 1 – Defendant’s Court Book (“DCB”) pages 3-36; 39-55; 60-68; 128-187 and 235-264
·Exhibit 2 – letter from Allianz Insurance to the plaintiff dated 19 February 2010
·Exhibit 3 – list of prescription notes from Dr O’Toole, general practitioner, between 18 July 2000 and 5 January 2011
·Exhibit 4 – Cedar Court Rehabilitation Visual Analogue Scale Questionnaire dated 2 December 2003.
4 This application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires a plaintiff to prove that he has suffered a permanent serious impairment or loss of body function. The loss of body function in this case is to the plaintiff’s back. Mr Worth, on behalf of the defendant, identified the issues in this application as follows:
(i)Disentangling the pain and suffering consequences to the plaintiff as a result of a right shoulder injury from the consequences of the claimed back injury in this application;
(ii)Whether the consequences of the pain and suffering found by the Court amounted to a permanent serious impairment or loss of body function. In short, this was a “range” case;
(iii)The credit of the plaintiff was an issue in the application;
(iv)The plaintiff was subsequently injured as a result of his work at Genuine Steel Company (“Genuine Steel”), an employer subsequent to the defendant in this case. This is the causation argument as it came to be argued at the completion of the case.
5 The plaintiff was cross-examined extensively during the course of this application. He was the only witness that gave evidence in this case.
The statutory scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that 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 Pty Ltd & Ors v Podolak (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by 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) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Sub-section (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 hearing and permanently.
(g) 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). I have applied the principles set forth therein in reaching my conclusions in this application.
8 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
9 The plaintiff was born in 1972 and is now forty-one years old. The plaintiff was born and raised in Australia. Between 1986 and 1991, he moved with his family to live in Macedonia.[3]
[3]PCB 9
10 The plaintiff is a divorced man and lives with his elder son and daughter-in-law. He is a recipient of the Disability Support Pension from November 2012.[4]
[4]PCB 15, paragraph 10
11 The plaintiff was educated to Year 8 in Australia.[5] He completed his formal education in Macedonia. Upon his return to Australia in 1991, the plaintiff trained as a welder.[6]
[5]PCB 9
[6]PCB 9
12 The plaintiff worked in a number of jobs as a factory hand and subsequently, as a welder.
13 In 1997, he commenced employment at a packing company (Visy).[7]
[7]PCB 10
14 In 1999, during the course of his employment at the packing company, the plaintiff injured his right shoulder. The plaintiff had surgery on his right shoulder in 2001. His employment was terminated at the packing company in 2002.
15 In 2005, the plaintiff commenced employment with CSR and remained in that employment for approximately nine months.
16 In 2007, the plaintiff commenced employment as a welder with the defendant company.[8] The plaintiff initially received an injury to his back in December 2007. He continued working after the Christmas break and was further injured on 15 May 2008. The plaintiff remained on light duties until he was made redundant in February 2009.[9]
[8]PCB 10, paragraph 6
[9]PCB 11
17 In March 2009, the plaintiff commenced work on a part-time basis at Genuine Steel. He remained in that employment as a driver and delivery person and part-time store person until July 2009. He ceased work due to the increase in symptoms in his lower back.[10]
[10]PCB 15, paragraph 8
Injury with the Defendant
18 The plaintiff worked at the defendant’s factory, welding steel conveyor belts which were used in the mining industry. The system of works was such that the panels forming part of the belts had to be lifted from the ground onto a welding bench. The pieces were then welded together and then, as each section was completed, it was rolled up in a conveyor belt by hand. The plaintiff described the work as “heavy”.[11]
[11]PCB 10
19 In the course of his employment with the defendant, the plaintiff described his injury as follows:
“9 As a result of performing my work with the Defendant, I experienced pain in my back in about December 2007. I then attended my general practitioner, Dr O’Toole, although I saw another doctor at his clinic called Dr Window. I was placed off work for a week or so and then returned to work on light duties.
10 As I had not been working for the Defendant long, I asked my doctor to put me back onto normal work as I was concerned I was going to lose my job. In May 2008, my back became very sore again. I reported it and ceased work and return[ed] to Dr O’Toole. I was then off work for a week or so and had physiotherapy.”[12]
[12]PCB 10-11
20 The plaintiff returned to work performing light duties in what he described as a “made up job”. The light duties work involved him in filing and doing general office work at his place of employment. He was finally made redundant in February of 2009.[13]
[13]PCB 11
21 The defendant accepts that the plaintiff injured his back in the course of his employment but disputes the level of incapacity which results to the plaintiff as a result of that injury.
Medical treatment
22 The plaintiff initially experienced back pain in the course of his employment on 17 December 2007. It was in the course of rolling up a length of conveyor belt that he experienced the low-back pain. He consulted Dr Window, general practitioner, and was given a few days off work. These days off work were followed by the Christmas holiday period.
23 The plaintiff returned to work with the defendant on 7 January 2008. He resumed normal duties but experienced back pain.
24 On 14 January 2008, the plaintiff consulted Dr O’Toole, his usual general practitioner.[14] At that time, he was certified as unfit for work for a period of one week and then was referred for a CT scan of the lumbar spine.
[14]PCB 22
25 On 15 January 2008, the plaintiff underwent a CT scan of his lumbar spine. The findings of the CT scan were as follows:
“There is a mild narrowing of the L4-5 disc space.
…
L4-5 disc space
A broad based disc bulging seen causing mild impingement of the thecal sac. The left side component appears narrowing the left side of the neural foramen and seems abutting – compromising the left side, exiting L4 nerve root.
Bilateral moderate facet joint osteoarthritis.
L5-S1 disc space
A broad based disc bulging seen compromising both sides of S1 nerve root while traversing this disc level.
Bilateral moderate facet joint osteoarthritis.[15]
[15]PCB 215
26 The plaintiff remained on light duties for approximately two weeks and then returned to full-time normal duties.
27 On 15 May 2008, the plaintiff experienced a flare up of the back pain. It was in the course of him lifting panels onto a bench from the ground in the production of the metal conveyor belt. These panels weighed approximately 15 kilograms. The plaintiff experienced sharp pain in his lumbar spine. He then attended Dr Window on 16 May 2008. The plaintiff was certified unfit for duties for one week. He then returned to work on light duties. This job involved office-type work employment.
28 The plaintiff commenced treatment with physiotherapist, Gerald Lee, on 2 February 2009. At that time, Gerald Lee assessed the plaintiff as follows:
“During the initial assessment by me (on 2/2/2009), the patient claimed he had been successfully returning to work since September 2008 after claiming a subjective 30 to 40% better, however his condition had not improved further since, he suggested to Dr. O’Toole that he wanted to try out a course of physiotherapy room treatment to see whether that able to assist him.
At that stage, he mainly claimed mid line lower lumbar back pain with occasional left sciatica, his had slight reduction of lumbar lordosis with no spinal listing detected.”[16]
[16]PCB 30
29 The plaintiff, through a family connection, commenced his work as a part-time store person and delivery driver at Genuine Steel. This work commenced in March of 2009, and he ceased work in July 2009.
30 On 12 June 2009, the plaintiff consulted Dr O’Toole due to increasing back pain. He was prescribed Prednisolone at that time.[17]
[17]PCB 22
31 The plaintiff was then seen by Dr O’Toole on 8 July 2009 with increasing back pain and the pain radiating down into his left leg and foot.[18] Dr O’Toole certified the plaintiff as unfit for work, and he has not worked since that time.
[18]PCB 22
32 In November 2009, the plaintiff attended at Epworth Rehabilitation (“Epworth”) for a pain management course. The plaintiff did not complete that pain management course due to an increase in his back pain as a result of the program and also his conflict with a psychiatrist at the program. The psychiatrist stated that the pain was in his head.[19]
[19]DCB 60
33 On 17 December 2009, the plaintiff consulted Mr Drnda, neurosurgeon.[20] The plaintiff was referred to Mr Drnda by his general practitioner, Dr O’Toole. Mr Drnda referred the plaintiff for an MRI scan and recommended an epidural injection to the plaintiff’s back.
[20]PCB 38
34 On 5 February 2010, the plaintiff underwent an MRI scan of the lumbar spine. The report was as follows:
“Findings: Lumbar sagittal vertebral alignment and marrow signals are normal.
Conus position and anatomy are normal.
Congenital shortening of pedicle lengths are seen at all lumbar levels.
The L1 to 4 discs maintain normal contour. Canal and foraminal dimensions are normal at these levels.
L4/5 Disc: Undulating mild posterior protrusion is seen indenting slightly the anterior wall of theca. Facet arthropathy of mild grade is noted bilaterally. There is borderline central canal stenosis with mild established recess and foraminal stenoses being present. The L4 nerve roots appear to exit freely. The traversing L5 nerve roots are interposed between disc and facet joint osteophytes mild compression resulting on the left. The left L5 nerve root appearing slightly swollen in its subarticular recess.
L5/S1 Disc: Mild central disc protrusion indents slightly the anterior wall of theca. Canal dimensions are at the lower limits of normal. Recess and foraminal dimensions are normal. No overt radiculopathy.
Comment: Broad based central disc protrusion L4/5 with foraminal components which combining with facet joint arthropathy to produce right central canal stenosis but with established recess and foraminal stenosis, minor L5 radicular compression occurring on the left at any articular recess level.
Uncomplicated central disc protrusion L5/S1.
Congenital foreshortening of pedicle lengths is seen at all lumbar levels.”[21]
[21]PCB 216-217
35 In March 2010, the plaintiff had an epidural injection to his back. This was organised by his general practitioner and the plaintiff was subsequently reviewed by Mr Drnda in June of 2010.[22]
[22]PCB 39
36 In the latter part of 2010, the plaintiff was referred to Mr Andrew Tang, orthopaedic surgeon, for treatment for his right shoulder injuries. He has subsequently consulted with Dr Blombery, consultant physician, in respect of his right shoulder symptoms. In March of 2011, the plaintiff had surgery at the hands of Mr Tang for acromioclavicular joint excision.[23]
[23]DCB 123-127
37 In February of 2012, Dr O’Toole retired. The plaintiff has subsequently been treated by Dr Demirtzoglou at the Dandenong Medical Clinic until the present time.
38 In November 2012, the plaintiff was certified as a Disability Services Pensioner.[24]
[24]PCB 15, paragraph 10
39 In June of 2013, the plaintiff consulted Dr Daniel Lee, a pain physician.[25] The plaintiff underwent an MRI scan on 12 August 2013.[26] The conclusion in respect of the MRI scan performed in August 2013 was as follows:
“Comment: Stable appearances when compared to previous study of February 2010. Mild L4 radicular inflammatory is inferred on today’s study as reflected by loss of definition of perineural fat within the foramen and at the level of the dorsal root ganglion.”[27]
[25]PCB 63
[26]PCB 218-219
[27]PCB 219
40 The plaintiff is currently booked in for a pain management course. That course has not been commenced nor completed.
41 The plaintiff’s current medication regime is Norspan patch, 20 milligrams; Naprosyn, two tablets per day; Deptran, and Cymbalta.[28] The plaintiff’s evidence was that the Cymbalta was prescribed for the purposes of his right shoulder injury. The plaintiff had previously been prescribed Panadeine Forte on a regular basis for both his shoulder injury and his back injury.[29]
[28]PCB 17b
[29]PCB 17b, paragraph 4
Medical opinions
Dr Michael O’Toole, general practitioner
42 Dr O’Toole prepared four reports dated 24 September 2009, 27 February 2010, 4 January 2011 and 23 June 2011. In his initial report dated 24 September 2009, Dr O’Toole gave the following opinion:
“Prognosis
This man has had persistent low back pain for almost 2 years. In July this year, he suffered an acute exacerbation of pain. This pain has been persistent since that time. A CT scan shows an underlying spinal canal stenosis. I suspect that his prognosis is guarded.
Future incapacity
Mr. Shabanov has evidence of disc disease in his lumbar spine. It is almost 2 years since he first complained of low back pain. He suffered a recent exacerbation of his pain as a result of prolonged driving. I believe that his incapacity is likely to be chronic.”[30]
[30]PCB 23
43 In his report dated 23 June 2011, Dr O’Toole reported:
“Mr Shabanov has continued to complain of low back pain over the past three years. His pain was aggravated by a new job which involved courier work.
His current condition continues to be related to the original injury and to the aggravation suffered as a driver.”[31]
[31]PCB 28
44 In that same report, Dr O’Toole noted and agreed with Mr Drnda that the plaintiff would not benefit from surgical treatment. In 2012, Dr O’Toole retired and has not been supervising the treatment or medical management of the plaintiff since that time.
Dr Jim Demirtzoglou, general practitioner
45 Dr Demirtzoglou took over the conduct of the plaintiff’s treatment on 8 February 2012. Dr Demirtzoglou noted that the plaintiff had a normal gait with left low-back tenderness. Dr Demirtzoglou was of the opinion at that time, that the plaintiff was still incapable of working.[32] In his report dated 22 March 2013, Dr Demirtzoglou diagnosed the plaintiff with “low-back disc and muscular strain”.[33] Dr Demirtzoglou gave his opinion as follows:
“Mr Shabanov does not have a capacity for work at present and … [he] is unlikely to have [a] future capacity for work due to the chronicity of his symptoms and their poor response to treatment including epidural injection.”[34]
[32]PCB 49
[33]PCB 51
[34]PCB 51
46 Dr Demirtzoglou, in his report dated 6 April 2013, clarified the differentiation between the right shoulder injury to the plaintiff and his low-back injury. He stated as follows:
“He has a partial disability with regards to his right shoulder injury but has a total disability regarding his low back.”[35]
[35]PCB 52
47 In his final report dated 14 September 2013, Dr Demirtzoglou states:
“He had a repeat MRI scan … of his Lumbosacral spine on 12/8/2013 and the findings are essentially unchanged from his previous MRI on 5/2/2010 - (mild to moderate disc protrusion in L4-5 and mild L5-S1 central disc protrusion but no direct radiculopathy). He has been consulted by Dr. Lee – Pain physician on 28/6/2013 and 23/8/2013 and he feels Mr Shabanov has progressed into a chronic pain syndrome. He felt a pain management program may help as surgery and local injection will not help.
…
He has no capacity for any work.”[36]
[36]PCB 53
48 It is clear from Dr Demirtzoglou’s reporting that the plaintiff is incapacitated for any work. Dr Demirtzoglou is of the opinion that the plaintiff’s low-back injury is the major cause of the plaintiff’s incapacities and difficulties.
Mr Armin Drnda, neurosurgeon
49 Mr Drnda prepared a number of reports in respect of this application, in particular 17 December 2009 (two reports), 11 February 2010, 31 May 2010, 21 June 2010 and 3 March 2011.
50 In his final report of 3 March 2011, Mr Drnda stated that he had first seen the plaintiff on 17 December 2009. Mr Drnda took a history from the plaintiff, saying that he had started working as a delivery driver but had to stop due to the increase in pain to his back. He also noted that the plaintiff stated that he was getting constant left leg pain.[37] Mr Drnda then stated as follows:
“Mr. Shabanov returned for review after he had [an] MRI scan on 5th February 201[0]. He reported on that occasion that he had pain in part of the left leg, but more right leg pain as well. MRI scan revealed a congenitally narrow canal. AT L4/5 there was a disc protrusion which was possibly contacting the left L5 nerve root but there was also significant foraminal stenosis where there was definite contact and a degree of compression on the left L4 nerve root. At the L5/S1 level there was a central disc prolapse, probably fresh but was completely away from any neural structure.
In my assessment, Mr. Shabanov had left L5 pain and not L4 as the radiological findings would suggest. I suggested a CT guided epidural injection at the L4/5 level as the next step in treatment. My opinion was also that fresh disc L5/S1 produced worsening of the low back pain and that the disc prolapse did not cause neural compression.
…
Mr. Shabanov, as per his description, was exposed to prolonged significant physical strain on his lower back to his work as a welder. In my opinion, such work is capable of producing advanced degenerative changes in the back and that is what happened to Mr. Shabanov. He developed significant low back pain and bilateral leg pain as a result of these advanced degenerative changes in the lumbar spine.”[38]
[37]PCB 38
[38]PCB 38-39
51 It is clear from the opinion of Mr Drnda that the plaintiff’s work as a welder has been the principal and significant cause of the low-back pain and bilateral leg pain to the plaintiff.
Dr Peter Blombery, consultant physician
52 The plaintiff attended Dr Blombery on 7 March 2011 in respect of his pain in his right arm.[39]
[39]PCB 40
53 In his report dated 14 February 2012, Dr Blombery gave the following opinion concerning the plaintiff’s right upper limb:
“Mr Shabanov has ongoing features of a pain syndrome affecting the right upper limb after the injury that he sustained in the course of his employment in 1999. He has had surgical treatment for this but remains with ongoing pain and I think he would benefit from an intravenous lignocaine ketamine infusion.”[40]
[40]PCB 45
54 In a later report dated 8 February 2012, Dr Blombery clarified the medication situation for the plaintiff. Dr Blombery stated:
“The medications that I have prescribed, including Cymbalta, Panadeine Forte and Deptran, are all primarily for the right shoulder. I have not prescribed any medications for the low back injury.”
55 I note that the plaintiff has never been treated by Dr Blombery for his low-back condition. Dr Blombery’s sole treatment for the plaintiff relates only to his right upper limb.
Dr Daniel Lee, pain management specialist
56 Dr Lee consulted with the plaintiff on 28 June 2013. In his report dated 1 November 2013, Dr Lee stated:
“The MRI taken on the 12th of August 2013 showed stable appearances compared with the previous study of February 2010. It suggested mild L4 radicular inflammation as reflected by loss of peri-neural fat foramen and at the dorsal root ganglion.
The result of the MRI did not change management.
Mr Shabanov has not attended follow up single and the initial consultation (before the MRI).
So in conclusion my diagnosis was back injury secondary to work with additional features of a chronic pain syndrome.
The pain is likely to be persistent. I do not think there is a role for an operation.
A rehabilitation program may be planned for the future.”[41]
[41]PCB 64
57 In the course of evidence, the plaintiff stated that he was booked in to do a rehabilitation program with Dr Lee.
Dr Clayton Thomas, consultant in rehabilitation and pain medicine
58 The plaintiff has been treated by Dr Clayton Thomas. In his report dated 16 February 2011, Dr Clayton Thomas gave the following opinion:
“Mr Lirim Shabanov sustained an injury to his lower back. He developed back and left leg pain. The L4/5 disc has been implicated. Although he does complain of some sciatica, left more so than right leg, the dominant problem is back pain.
The organic aspect is the back injury at L4/5 with left sided disc bulge causing left sciatica, but no evidence of radiculopathy.
…
I accept that the injury to his back occurred whilst working manufacturing conveyor belts, starting in late 2007 progressing in 2008.[42]
…
Excluding the non organic components, leaving him with a back problem relating to the L4/5 disc with episodic left sciatica and an irritable right shoulder, given his past history as a welder and manual worker, he does not present as having work capacity.
…
If the shoulder was taken out of the work equation and the non organic factors removed, I think he would have work capacity. I think he would have the capacity to work performing light duties, working in an ergonomically set up position, lifting 5 kilograms between waist and chest height frequently, avoiding bending below waist height or above chest height. With such a set up, I think he could work in the vicinity of 20 to 24 hours per week.”[43]
[42]PCB 68
[43]PCB 69
59 It is clear that Dr Clayton Thomas was of the opinion that the plaintiff did have some work capacity into the future. The high point of the plaintiff’s work capacity would be in the order of 20 to 24 hours per week in a light duties’ occupation.
Professor Richard Bittar, neurosurgeon
60 In his report dated 11 September 2013, Professor Bittar noted the following:
“He reports ongoing left leg pain, mainly in his left buttock. This is sharp and has an average severity of 3-4/10. His leg pain has the same exacerbating and relieving factors as his lower back pain but is particularly exacerbated by walking. It is also particularly severe at night, during which time it disrupts his sleep.
…
His lower back pain and leg pain have a significant detrimental impact on his social, domestic and recreational activities. He socialises less than he did prior to the onset of his symptoms, mainly due to pain, sitting intolerance, and the need to change postures frequently. He no longer attends sporting events as a spectator due to the requirement to stand for long periods and no longer plays pool. He is able to do very light housework, but is unable to perform vacuuming or any significant bathroom cleaning.”[44]
[44]PCB 149
…
Diagnosis
In my opinion Lirim Shabanov suffers from aggravation of lumbar spondylosis. He has an L4/5 disc prolapse with evidence of left L5 radiculopathy and also has a disc prolapse at L5/S1, which is almost certainly contributing to his symptoms.
Causation
In my opinion, his employment with Locker Group Pty Ltd has been a significant contributing factor and remains a significant contributing factor to his ongoing symptoms, disability and requirement for treatment.
Treatment Recommendations and Prognosis
…
I would recommend that he undergo a left L5 nerve sheath injection with local anaesthetic and steroids, and this could be followed by a pulsed radiofrequency neurotomy of the dorsal root ganglion if the block successfully reduces his pain.”
…
I remain of the view that he is not fit for unrestricted work. He is permanently incapacitated for his pre-injury duties as a welder.[45]
…
In my opinion, he does have the physical capacity to work one or two hours per day in a very sedentary role, with frequent changes of posture. However, taking into account the nature and severity of his work-related lumbar spine condition, it is extremely unlikely that he would be able to maintain such a workload with any degree of reliability. In practical terms, he is totally incapacitated for employment.
… his total incapacity for work is permanent.”[46]
[45]PCB 150
[46]PCB 151
61 It is clear from Professor Bittar’s opinion that the plaintiff has a very limited employment capacity as a result of his low-back injury.
Dr Helen Sutcliffe, occupational physician
62 Dr Sutcliffe prepared two reports dated 21 March 2013 and 11 December 2013. In her report dated 21 March 2013, Dr Sutcliffe stated as follows:
“I confirm my previous opinion that Mr. Shabanov sustained disc derangement at L4/5 and L5/S1 together with aggravation of lumbar spondylosis as a result of a lifting incident in his workplace in 2008.[47]
It is my opinion he continues to have no capacity for his pre-injury employment now or into the foreseeable future as a result of the lumbar spine injury and that he will require further treatment in the form of surgery to the lumbar spine or will require pain physician treatment in an attempt to manage the persisting symptoms.
…
Thus, I believe that he continues to have no capacity for employment taking into account his age, education, training, expertise and the injury he has sustained either in pre-injury duties or suitable or alternate duties.”[48]
[47]PCB 204
[48]PCB 205
63 In December of 2013, Dr Sutcliffe reported again on the plaintiff’s condition. Dr Sutcliffe gave the following opinion:
“I believe that he has no capacity for pre-injury employment now or into the foreseeable future. I also believe he has no capacity to undertake employment either pre-injury or suitable alternate duties taking into account his age, education, training, experience and the injury he sustained.[49]
…
Taking into account the nature of the back injury, his disability and the persisting pain together with the limitation of function I believe that Mr. Shabanov cannot return to any employment that he can realistically, reasonably or reliably perform in any suitable employment.
…
I believe that the incapacity for employment is permanent.”[50]
[49]PCB 213
[50]PCB 214
64 I conclude from Dr Sutcliffe’s reports that her opinion is that the plaintiff has no capacity for employment and that that condition is permanent in the sense that it is for the foreseeable future.
The Defendant’s medical evidence
65 In this application, the defendant relied on the fact that the injury to the plaintiff’s right shoulder had caused him considerable difficulties from 1999 onwards. In that regard, the defendant relied upon the reporting of Dr Peter Blombery, Mr Andrew Tang, Dr Kostos and Dr Barton.
Mr Andrew Tang
66 Mr Tang is an orthopaedic surgeon who operated on the plaintiff’s right shoulder. In his report dated 3 December 2003, Mr Tang stated as follows:
“With regards to his right shoulder joint in particular it may well be prudent to organise an MRI scan now to see what the state of his shoulder joint is today and to that end I have organised this. I will review him with the results of the scan and send you a copy.
I note again today that Mr. Shabanov has remained sincere and eager to attempt to return to work.”[51]
[51]DCB 34
Dr Tony Kostos, rheumatologist
67 Dr Kostos prepared a report dated 4 August 2008. He stated, in his opinion, that the plaintiff had developed mechanical low-back pain as a result of his employment. He stated that the cause of this pain cannot be established. Dr Kostos then criticised the general practitioner for ordering a lumbar CT scan as an unnecessary investigation.
68 Dr Kostos gave his opinion as follows:
“He will not have any permanent impairment as a result of these events. He does however have changes in his lumbar spine which are longstanding in nature, but these haven’t been caused or accelerated by his work at the Locker Group.”[52]
[52]DCB 58
69 Dr Kostos is the only medical practitioner who has seen the plaintiff and formed the view that his work at the defendant had nothing to do with his back injury or symptoms. I do not accept Dr Kostos’ opinion in regard to the plaintiff’s condition in respect of low-back injury.
Dr David Barton, consultant occupational physician
70 Dr Barton saw the plaintiff on behalf of the insurer for the defendant. In Dr Barton’s opinion, the plaintiff had developed a mild mechanical lower back problem relating to his welding duties with the defendant. He did not believe that the subsequent driving duties at Genuine Steel were particularly relevant to the plaintiff’s condition.[53] Dr Barton went on to express an opinion that the plaintiff was suffering from a degree of a functional overlay.[54] Dr Barton was of the opinion that the plaintiff was not as severely injured as he, the plaintiff, was reporting.
[53]DCB 67
[54]DCB 67
Mr Peter Kudelka, orthopaedic surgeon
71 Mr Kudelka examined the plaintiff on behalf of the defendant. He took the following history from the plaintiff.
“In May 2008 the patient said that he was lifting heavy panels from the floor to a bench, a job which is usually carried out by two men. He was on his own at the time and his back pain became very severe, radiating from his lower back to his left leg. There was a stabbing feeling upon movement.”[55]
[55]DCB 118
72 Mr Kudelka diagnosed as follows:
“The diagnosis is a mechanical aggravation of degenerative changes in the lower lumbar spine particularly at the L4/5 disc level and the sacroiliac joints.
…
I believe that this patient at the present time has no capacity for work as a Welder, but could do office and clerical work as he has done previously.[56]
…
The patient could return to the office and clerical work he did previously, but at this time could not return to his pre-injury level of work as a Welder. If the patient returned to work I believe he would still require his present treatment programme.
…
I believe his pain is directly due to the bending and lifting associated with his work.”[57]
[56]DCB 119
[57]DCB 120
73 Mr Kudelka gave his opinion of the plaintiff’s condition as follows:
“I believe the patient’s symptoms are due to an aggravation while working for the Locker Group. I do agree that the patient’s prognosis, as with all back injuries which have been confirmed by radiology, is guarded. He will probably never regain normality with respect to function of the lumbar spine.”[58]
[58]DCB 121
74 In a report dated 20 April 2009, Mr Kudelka confirmed that the plaintiff was not fit enough to carry out his pre-injury duties at the time his employment was terminated in 2009. Mr Kudelka confirmed that the injury to the plaintiff’s back was related to and caused by his work at the defendant’s place of employment.[59]
[59]DCB 122
Dr James Rowe, occupational physician
75 The plaintiff was sent for assessment by Dr James Rowe. In his report dated 10 May 2011, Dr Rowe was of the opinion that the defendant’s employment was a contributing factor to the plaintiff’s injury.[60] Dr Rowe was of the view that the plaintiff was not fit to go back to work as a welder but that he did have a capacity for employment. In his view, the plaintiff had a capacity to return as a store person or process worker or hand packer, who did not have to lift more than 10 kilograms.[61]
[60]DCB 130
[61]DCB 131
76 In his history of the report dated 4 April 2013, Dr Rowe took a history from the plaintiff, stating that his right shoulder condition had resolved. He noted that he had a good range of movement of the shoulder which he examined on that day. This assessment is consistent with the plaintiff’s evidence in the course of his cross-examination.
77 In his final report dated 5 October 2013, Dr Rowe gave the following opinion:
“He had limited straight leg raise on the left. Ankle jerk was slightly diminished. There was a change of sensation about the lateral toes, which is usually the S1 nerve root distribution but it could be L4-L5.”[62]
…
The injury is a lumbosacral or L4-L5 disc derangement with some signs of radiculopathy in the left leg. His short term prognosis is poor.
…
I am still of the view that he does have some capacity for employment.
…
He cannot go back to preinjury employment. He has been granted the Disability Support Pension, which I think reinforces his invalidity or at least the perception thereof. He sees his GP. He still gets a certificate. He is only aged 42.”[63]
[62]DCB 136e
[63]DCB 136f
78 Dr Rowe does not recommend any further treatment for the plaintiff.
The credit of the Plaintiff
79 In his submissions on behalf of the defendant, Mr Worth stated that the plaintiff lacked frankness.
80 I find that the plaintiff, in the course of cross-examination, made all the necessary and appropriate concessions as to his ability to move his arm or engage in activities despite the injury to his lower back. He readily conceded that he was able to attend at the social club for the Albanian community in Dandenong; that he had previously attended at the soccer, and that he walked around as much as he could. In short, his evidence was clearly of a person trying to cope with the restrictions of back pain without remaining at home and letting the injury and depression overwhelm him.
81 The plaintiff is under constant medical treatment and medication and this assists him in managing his condition. I found him to be stoical in his disposition. He was a straightforward and honest witness.
82 I note in the Index of the Defendant’s Court Book that there was video surveillance of the plaintiff. In the course of this case, no surveillance film was shown to the plaintiff. It was urged on me by Ms Pilipasidis, for the plaintiff, that I should apply the principles in Jones v Dunkel[64] in the absence of the surveillance video being shown to the plaintiff. It was clear to me that if there was any recorded or videoed activities of the plaintiff that did not accord with his evidence, that it would have been shown to him immediately. That did not occur here. I accept that the plaintiff had made all the concessions in respect of his daily activities.
[64](1959) 101 CLR 298
Consequences of the low-back injury to the Plaintiff
83 In assessing the consequences of the low-back injury to the plaintiff, I rely upon the contents of his affidavits dated 21 April 2010, 15 April 2013 and 19 February 2014. I also rely upon the evidence given during the course of this application.
Sleep
84 The plaintiff stated in his first affidavit that he was prescribed Deptran to assist him in sleep.[65] The plaintiff fairly conceded in his affidavit as follows:
“I continue to have difficulty sleeping because of pain both from my back and my right shoulder. I tend to be very tired during the day because of the lack of sleep.”[66]
[65]PCB 15, paragraph 5
[66]PCB 17, paragraph 17
85 In his final affidavit, the plaintiff stated:
“I continue to have problems sleeping. The pain in my back makes it difficult to get to sleep. I take Deptram (sic) to help me sleep, but generally I sleep about 3-4 hours before being woken by pack pain.”[67]
[67]PCB 17b, paragraph 6
86 The plaintiff was cross-examined in the course of his evidence about the effect of his injury on his sleep. He appropriately conceded that his sleep continued to be impaired as a result of the pain in his right shoulder.[68]
[68]Transcript (“T”) 69, L21 and 22
87 He was later asked:
Q:“What is the main factor that interrupts your sleep?---
A:The back wakes me up.
Q:That is the main factor that interrupts your sleep?---
A:I get more pain in my back than anything else. That’s the main one.”[69]
[69]T70, L31 – T71, L4
88 In re-examination, the plaintiff was asked:
Q:“You, in response to a question yesterday, said that your sleep was impaired because of your shoulder. You have also said in your most recent affidavit that your sleep is impaired because of your back. I just want to clarify. Do you say that your sleep is affected because of your back?---
A:Yes.
Q:What wakes you up then, the pain in your back or the symptoms in your arm?---
A:Back pain.”[70]
[70]T109, L18-25
89 I find that the plaintiff suffers from severe and regular interruptions to his sleep. The loss of sleep and interruption to his sleep is caused predominantly by his low-back injury. The plaintiff readily concedes that on occasions, the right shoulder injury is a cause of interruption to his sleep. I find that the interruption to his sleep as a result of the back injury is a very considerable consequence for the plaintiff. It is clear from his evidence that he is prescribed Deptran to ameliorate this difficulty.
Pain
90 In his first affidavit, the plaintiff states as follows:
“I continue to suffer from ongoing pain in my low back. I have pain all the time. At times the pain in my back is severe.
I have pain that radiates into my legs. It radiates into my left leg and my right leg, although my left leg is worse.”[71]
[71]PCB 11
91 The plaintiff has consistently reported pain in his lower back, and also radiating down his legs, to his medical practitioners and treaters. The treating medical practitioners accept the plaintiff has pain and have treated him for it.
92 In his latest affidavit, the plaintiff described the pain as follows:
“I continue to experience ongoing pain in my back. The pain is constant, but varies in intensity from day to day. My back pain is aggravated by activity or activities requiring repetitive movement of my back. The pain is like a stabbing pain. The pain radiates into the left side of my back and into my left buttock.”[72]
[72]PCB 17a
93 In his evidence, the plaintiff stated that the pain was always there.[73] When he was giving that evidence, he was referring to the pain in his back. The plaintiff was later challenged by Mr Worth, on behalf of the defendant, that the pain into his legs did not occur until after he had worked at Genuine Steel. The plaintiff had complained of leg pain to his physiotherapist prior to going to work with Genuine Steel. In his evidence, he stated that he had always had stabbing pains to his back and that he might have had a tingling down his legs.[74]
[73]T40
[74]T45
94 I accept that the plaintiff had experienced the symptoms of low-back pain and pain down his left leg prior to him commencing work with Genuine Steel. As a result of his work at Genuine Steel, which was only part time, his symptoms increased. The initiating and principal cause of the pain in the back and radiating into the left leg is his employment with the defendant. The plaintiff continues to have those symptoms, as have been found by medical practitioners to the current time. I conclude that the pain and the level of pain that the plaintiff is suffering is a very considerable consequence for him.
Medication
95 The plaintiff has been prescribed numerous medications over the course of time since the initial injury to his back in December 2007. The initial medication was Prednisolone. He has subsequently been prescribed Naprosyn and Panadeine Forte.[75] He has been prescribed Lyrica, 150 milligrams, and Panadeine Forte, two to six per day.[76] He was subsequently prescribed Deptran to deal with his sleeping difficulties. He has been prescribed Cymbalta for the treatment of his right shoulder pain syndrome and depression[77] and he has been prescribed Endone and, more recently, Norspan patches, 20 milligrams.[78]
[75]PCB 12, paragraph 20
[76]PCB 15, paragraph 5
[77]PCB 17d
[78]PCB 17b
96 The evidence in this case indicates that the Cymbalta medication is primarily for use in ameliorating the effects of the plaintiff’s right shoulder injury. The prescription of Norspan patches and Deptran for sleep are directly related to the plaintiff’s lower back injury. The necessity for the plaintiff to continually take narcotic medication (Norspan) on a continual basis for the foreseeable future is very considerable consequence.
Activities of daily living
97 The plaintiff stated that he now lives with his son and daughter-in-law. The majority of the domestic duties are performed by his daughter-in-law. The plaintiff readily conceded that he walks daily and tries to involve himself in social activities at the Albanian Social Club and spending some of his time at a café. I accept that the plaintiff is limited in what he can do in a domestic setting and that his activities are predominantly limited to him attempting to socialise so as to take his mind off the pain and limitation that he suffers as a result of his injury to his lower back.
98 The plaintiff has also lost his ability to work as a welder due to his low back injury. He was able to perform his work as a welder after the initial right shoulder injury in 1999. I find that the plaintiff has lost the ability to pursue his trade as a welder and that this is a very considerable consequence for him.
Conclusion
99 I am satisfied that the plaintiff suffers the aforementioned consequences as a result of the injury to his lower back and such consequences, when judged by comparison with other cases in the range of possible impairments can be fairly described as being more than significant or marked and as being at least very considerable. I consider that the consequences as described are for the foreseeable future, in the sense that they are permanent.
Loss of Earning Capacity
100 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, he must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b) after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
101 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
102 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
103 The parties agreed that the “without injury” loss was $1,064 gross per week. The “after injury” earnings of the plaintiff have been nil. He is currently a Disability Pensioner.
104 The 40 per cent loss of “without injury” earnings is $638 gross per week. The plaintiff has to prove that he does not have the ability and capacity to earn more than $638 gross per week.
105 The plaintiff is currently certified by his general practitioner, Dr Demirtzoglou, to have no capacity for work.[79] In his evidence, the plaintiff stated:
[79]PCB 52 and 53
Q:“Have you looked for work since 2009?---
A:No, Your Honour.
Q:Why not?---
A:Just at the moment I've been getting certificates ‘Unfit for work’ and I’ve been on the disability pension for nearly two years going on.”[80]
[80]T82, L11 – 15
106 The plaintiff was challenged about whether he had any motive to work. I accept that the plaintiff is someone who would choose to work if he could. It is clear that once he was injured in his employment with the defendant and was made redundant after his “made up job” in February of 2009, the plaintiff sought out for himself further employment at Genuine Steel. He sought this employment out even though he was suffering from symptoms to his back and into his left leg. This clearly is an indicator that the plaintiff is a person who wants to work if he can. Further to that, despite the plaintiff’s right shoulder injuries and symptoms, he worked with the defendant as a welder in heavy employment from 2007 until his ultimate injury in May of 2008. Again, this clearly shows the plaintiff was a person motivated to work even when he had physical difficulties.
107 In cross-examination, the following exchange took place:
Q:“Did you say to Dr Rowe that you would like to go back to work and that you would like to work as a security person?---
A:I’ve said to - I would love to get back into the work (indistinct)
Q:All right?---
A:What sort of work? At the moment, I don’t know.
Q:Do you know if you’d be able to cope with a part‑time role?---
A:It depends on what.
Q:What would you need for you to be able to cope in a part‑time role?---
A:At the moment I don’t know what sort of work I can do, because every day’s a different day for me with pain, Your Honour.”[81]
[81]T84, L20-30
108 I accept the plaintiff is someone who would work if he could.
109 In effect, Professor Bittar and Dr Helen Sutcliffe are of the same opinion that the plaintiff has no capacity for pre-injury employment or alternative employment.
110 The high watermark of the defendant’s case in respect of the employability of the plaintiff is Dr Clayton Thomas who suggests that the plaintiff could possibly work 20 to 24 hours per week.[82]
[82]PCB 69
111 The plaintiff was cross-examined at length about his capacity to either work in the alternative tasks of control-room monitor (security work) or a traffic controller (lollypop work). These two possible employments were put forward by Joanne Bryant of CoWork Pty Ltd in a report dated 2 April 2013. Most significantly, I note that Ms Bryant did not interview the plaintiff before making these recommendations. I note, in particular, that for the control-room monitor job, that the full-time employment involves 12-hour shifts, seven days per week.[83]
[83]DCB 259
112 On the medical evidence presented in this case, there is no support for the suggestion that the plaintiff could undertake anything like this number of hours or this type of work. I reject the suggestion that the plaintiff would have any capacity to work as a control-room monitor on a full-time basis and I do not accept that he could do it in a part-time capacity due to his pain and disability.
113 The plaintiff was also questioned about his capacity to perform the role of a traffic controller. This job description is outlined at Defendant’s Court Book at page 262. The description set out training and qualification prerequisites. The plaintiff has none of these prerequisites. More relevantly, one of the factors required to perform such a duty is for the plaintiff or the worker to be alert. I accept the description given by the plaintiff during the course of his evidence about the impact of the Norspan patches on his alertness. He stated that he sometimes just needed to lie down, because he was tired and in effect sleepy. I do not accept that the plaintiff, in his current condition, could possibly work as a traffic controller due to the responsibilities he would have and the disability that he has suffered as a result of the injury to his back.
114 In conclusion, I find that the plaintiff has no capacity for pre-injury employment or alternative light-duty employment. I find this, because of the incapacities that the plaintiff suffers as a result of the low-back injury. The pain level and the constant requirement for narcotic medication preclude the plaintiff from undertaking the suggested work put forward by the defendant.
115 The plaintiff, prior to being placed on the Disability Pension, undertook the services of Paramount Personnel and Disability Employment Services which was organised by Centrelink.[84] The plaintiff willingly engaged in this service but was unable to obtain employment. I note by way of completeness, that the defendant has at no stage offered retraining or reallocation of work to the plaintiff.
[84]PCB 226
116 Based on the reasons outlined in this judgment, I find that the plaintiff has satisfied the statutory test for leave to bring proceedings for pain and suffering damages. I find the consequences suffered by him as a result of his low-back injury, when judged by comparison with a range of cases of possible impairments can be fairly described as being more than significant or marked and as being at least being very considerable. I regard that these consequences are permanent, in the sense that they are for the foreseeable future.
117 In respect of the plaintiff’s loss of earning capacity, based on the reasons outlined above, I find that the plaintiff has nil capacity for returning to paid employment. I find that as a result of his low-back injury, that his capacity to engage in employment either as pre-injury employment or alternative duties is permanent, in the sense that it is for the foreseeable future.
118 I grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of loss of earning capacity and pain and suffering.
119 I will hear the parties on costs.
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