Smit v Victorian WorkCover Authority
[2022] VCC 1308
•18 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-00295
| BRADLEY SMIT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 August 2022 | |
DATE OF JUDGMENT: | 18 August 2022 | |
CASE MAY BE CITED AS: | Smit v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1308 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lower back in 2012 – prior injury to the lower back in 2008 – whether injury to lower back in 2012 constituted an aggravation of the 2008 injury – further incident in 2018 – whether a recurrence or an aggravation of the 2012 injury – whether the ultimate impairment consequences contended for by the plaintiff resulted from the lower back injury in 2012 – significant questions of the creditworthiness and reliability of the plaintiff
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Altona Bus Lines v Lococo [2002] VSCA 159; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: The plaintiff has leave to bring a proceeding at common law limited to the recovery of damages for pain and suffering only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick | Slater and Gordon Pty Ltd |
| For the Defendant | Mr L Allan | Russell Kennedy Lawyers |
HIS HONOUR:
Introduction
1The plaintiff, Mr Bradley Smit, commenced employment with the defendant on 16 April 2012. His job title was “merchandiser”. It involved filling fridges at retail outlets with products manufactured by the defendant. It was on such an occasion, on 13 June 2012, that he manually handled about twenty boxes of soft drinks from a vehicle which he carried into the retail outlet for the purpose of filling up a fridge. It was that activity which he says resulted in him suffering injury to his lower back.
2The plaintiff submitted that he has suffered a serious permanent impairment of the function of his lower back which has produced pain and suffering consequences which are serious.
3Mr Fitzpatrick of counsel appeared for the plaintiff, and Mr Allan of counsel appeared for the defendant.
The issues
4The defendant raised many issues which, it submitted, individually, and certainly, collectively, go to defeat the plaintiff’s application. I will deal with each of them as I summarise the evidence below. The plaintiff, on the other hand, conceded that there are some issues impacting upon the plaintiff’s creditworthiness and reliability, and some evidentiary issues, but otherwise submitted that the plaintiff’s application is far more straightforward than contended for by the defendant.
5The defendant conceded that the occurrence of the lower back injury constituted a compensable injury for which it accepted liability on a no-fault basis.
The football injury
6The first issue, chronologically, is an injury suffered by the plaintiff when he was playing football for a club in the Heathcote League in about 2008. In his first affidavit, affirmed 15 September 2021,[1] the plaintiff described the injury as “fractures of the transverse process”.[2] There is practically no evidence, medical or otherwise, which describes the football injury, save for that evidence of the plaintiff.
[1] Plaintiff's Court Book ("PCB") 4-44
[2] PCB 5
7The plaintiff said that he rested for eight weeks following the occurrence of the football injury and made a full-enough recovery to return to football the following year. Indeed, he said he continued playing football through the following season, even including some games at the start of 2012. He continued playing for football clubs known as Echuca United and Kangaroo Flat in the Bendigo League.[3]
[3] PCB 6
8The plaintiff denied having any significant medical treatment after his successful recuperation. According to his résumé, exhibited to his first affidavit,[4] he was in full-time employment with Yes Optus in Bendigo from August 2008 to January 2010; Yes Optus in Morayfield in Queensland from January 2010 to July 2010; British American Tobacco in Bendigo from August 2010 to April 2012, and then with Coca-Cola Amatil in Bendigo from April 2012 to March 2013.
[4] Exhibit "BS1" at PCB 20-24
9The defendant submitted that there is evidence which suggests that the plaintiff’s level of recovery from the football injury left him with a continuing level of pain, or, alternatively, he developed lower back pain, which troubled him to some degree prior to the occurrence of the compensable injury. I will now trace through the evidence relied upon by the defendant.
10Under cross-examination, a different picture emerged relevant to the occurrence of the football injury, treatment which the plaintiff sought, and the persistence of symptoms of lower back and right leg pain.[5]
[5] Transcript (“T”) 12-16
11The plaintiff was first taken to the clinical notes of Central Victorian Sports Physiotherapy.[6] Through exposure to those clinical notes, the plaintiff agreed that the fractures to the transverse processes were to the right side of L3 and L5. He agreed that he experienced pain in the region of his right lower buttock, and shooting pain in his right leg. He agreed with the content of the clinical notes, dated 29 March 2011 and 1 April 2011, that he was complaining of right buttock pain and soreness, presumably in that region. He agreed that the clinical note of 1 April 2011 also referred to him experiencing symptoms, presumably of pain or soreness in his right hip.
[6] Defendant's Court Book ("DCB") 83-96
12The plaintiff could not remember the content of the clinical notes of 4 and 18 April 2011. The content discloses that the plaintiff was experiencing improvement in the pain he had previously experienced and by 18 April 2011 that the pain was minimal.
13The plaintiff attempted to interpret the clinical notes as a mistaken understanding by the physiotherapist in recording his complaints. I do not accept his evidence in that respect. He clearly understood that the clinical notes recorded the previous history of the fractures, and recorded the areas of his lower back, right buttock and right hip, where he was experiencing pain and soreness. Later in cross-examination, the plaintiff repeated that he could not remember the content of the clinical notes, but could remember that he was experiencing neck ache as well around the time he obtained physiotherapy treatment.
Prior lower back symptoms
14Next, the plaintiff was referred to the clinical records of the Tristar Medical Group.[7] The plaintiff was referred to the clinical note of 8 November 2011, when it would appear he saw Dr Jafar Ahmed, general practitioner. He recorded the following:
“felt severe weakness for few days
backach (sic) for 2 weeks
…”[8]
[7] DCB 213-223
[8] DCB 217
15The balance of the clinical note makes no further reference to the plaintiff’s back, but to symptoms of weakness, tiredness, depressed mood and an examination which appears to be specifically directed to the plaintiff’s complaint of weakness. There is no further reference to the plaintiff’s back. Under cross-examination, it was put to the plaintiff that he had suffered backache for two weeks, and then he was taken to a further clinical note of Dr Ahmed of 10 November 2011, which records that the plaintiff was still feeling weak and had back pain. Again, the examination appears to be specifically directed to the plaintiff’s complaint of weakness.[9]
[9] DCB 218
16The plaintiff said he could not remember seeing Dr Ahmed on those occasions, but did not disagree with the content of the clinical notes. He denied that he had a significant problem with his lower back at that time. He doubted that the problem he was having with his back at that time was related to the football injury, and then added that, if he had any backache after recovering from the football injury, it was a different type of pain. I took that to mean he considered it to be unrelated to the football injury.[10] He also added later, under cross-examination, that he could not remember whether he had back pain in the month prior to the occurrence of the compensable injury.[11]
[10] T17-18
[11] T20
17Next, the plaintiff was referred to the clinical notes of the St Anthony Family Medical Practice Pty Ltd.[12] The plaintiff was referred to the clinical note of 9 July 2012, when it would appear that he saw Dr Josephine Salazar, general practitioner. Dr Salazar recorded the following:
“…
previous trauma - transverse process fracture – footy -2008
had sciatica since
…”[13]
[12] DCB 164-190
[13] DCB 170
18The plaintiff agreed he told Dr Salazar he had suffered a previous transverse process fracture and had sciatica, but he denied that he had suffered sciatica “since”. I understood this to mean that, whatever sciatica the plaintiff suffered, was restricted in time.
19Next, the plaintiff was referred to the clinical records of the Tristar Medical Group. The plaintiff was referred to the clinical note of 15 June 2012, when it would appear he saw Dr Ashraful Mamun, general practitioner. Dr Mamun recorded that the plaintiff told him he had experienced back pain “since yesterday... morning”.[14] The plaintiff agreed he had driven to work that morning. He denied that the spasms he experienced in his lower back occurred while driving to work, but when he engaged in manual handling the boxes of soft drinks.[15]
[14]DCB 220
[15]T20. The date of the clinical note was incorrectly referred to in the transcript as 15 June 2022.
20Next, the plaintiff was referred to the clinical notes of Bendigo Health, dated 15 June 2012.[16] The attending staff member noted that the plaintiff presented to the emergency department two days post suffering a strain from lifting a carton of soft drinks following prolonged sitting. The next part of the note records that the plaintiff had suffered worsening pain over the last three days. The defendant cross-examined the plaintiff on the basis that the compensable injury occurred on 13 June 2012. If he had suffered pain three days prior to presenting at the hospital, then that would take it back to 12 June 2012, the day before the occurrence of the compensable injury. The plaintiff denied that he experienced lower back pain the day before.[17]
[16] PCB 69
[17] T21-22
21The plaintiff submitted that the reference to the three days is easy to understand and not in conflict with his evidence. He submitted that the compensable injury occurred on 13 July 2012 and if one counts 13 and14 July, and his presentation at the hospital on 15 July 2012, then that is three days. I think this is a plausible explanation for the clinical note. I do not think there is anything in the point made by the defendant based upon it.
22Next, the plaintiff was referred to the clinical notes of Bendigo Health, dated 22 July 2012. The attending staff member noted that the plaintiff had sciatic pain “since eight weeks ago”.[18] The defendant cross-examined the plaintiff on the basis that the compensable injury occurred five weeks before that attendance at the hospital, and therefore eight weeks before would mean he was suffering from sciatic pain before the occurrence of the compensable injury. The plaintiff denied he had suffered sciatic pain before the occurrence of the compensable injury, and that the entry was a mistake on the part of the staff member who made that clinical note.[19]
[18] T70
[19] T23-24
23The cross-examination, up to this point, left me with the impression the defendant intended to submit that the onset of pain suffered by the plaintiff did not occur on 13 June 2012. I clarified that with the defendant and was informed the plaintiff lodged a no-fault claim which was accepted by the defendant. Furthermore, I was informed that the purpose of the cross-examination was, rather, more to give foundation to a submission based upon Petkovski v Galletti,[20] that the plaintiff had an established prior lower back injury productive of symptoms and therefore it was for him to establish he had suffered a prior aggravation of the lower back, and the impairment of function resulting from the aggravation has consequences which are serious.[21]
[20] [1994] 1 VR 436
[21] T25
A Petkovski case?
24There can be no doubt the plaintiff suffered fractures to the transverse processes in his lower spine. Equally, there can be no doubt he required treatment of the kind which I have summarised adequately thus far. Despite the nature of the football injury and the need for treatment, the evidence satisfies me that it is likely the plaintiff substantially recovered from the football injury. I am fortified in reaching that conclusion, because I accept the plaintiff’s evidence that he returned to the vigorous sporting pursuit of football without incident, and was able to work full time, and it would appear that he was otherwise able to engage in his normal activities without incident.
25Furthermore, the real test of this is what the medical evidence discloses. Dr Salazar referred the plaintiff to Mr Justin Hunt, orthopaedic surgeon. The plaintiff first saw Mr Hunt on 6 August 2012. One of the criticisms made of the opinion of Mr Hunt and, indeed, other medical practitioners who have provided opinions favourable to the plaintiff, is that they did not obtain a full history of the plaintiff’s prior lower back problems. Of course, the defendant’s reference to the plaintiff’s prior lower back problems encompassed its submission that all the clinical notes I have analysed demonstrate a quite serious lower back problem which troubled the plaintiff following the occurrence of the football injury, right up to the time of the occurrence of the compensable injury.
26I accept the plaintiff’s evidence that the clinical notes do not accurately represent the course of events following the occurrence of the football injury. I do not accept that the entries in those clinical notes, either individually or collectively, demonstrate that the plaintiff was suffering from a lower back problem of the magnitude urged upon me by the defendant. Furthermore, it is not the case that Mr Hunt was not aware of the football injury. He referred to it in his courtesy letter to Dr Salazar, dated 6 August 2012:[22]
“… Brad explains that he has previously had an injury to his lower back with some transverse process fractures as a result of a footy injury back in 2008, but this does not have much bearing in his current work related injury.”[23]
[22] PCB 72
[23]PCB 72
27To the contrary of the defendant’s submission, it is clear that Mr Hunt turned his attention directly to the football injury in assessing whether it had anything to do with the pathology he diagnosed which was causing the plaintiff symptoms. He reviewed an MRI scan.[24] With the aid of the MRI scan, Mr Hunt concluded that the plaintiff had suffered an acute disc prolapse at the L4-5 and L5-S1 motion segments, with symptomatic right leg radicular pain and worsening lower back pain. At that time, he appears to have been somewhat optimistic that, with conservative treatment, the plaintiff’s symptoms might resolve over time.
[24] PCB 59-60
28It is very clear that Mr Hunt obtained an adequate history of the lifting which the plaintiff was engaged in when he suffered the compensable injury. In the courtesy letter I have just referred to, he noted that the plaintiff was lifting a crate of soft drinks and was reaching to pick up another, when he felt pain in his lower back, which increased over time. On my reading of that courtesy letter and the many others which he wrote, including reports to the insurance agent and the plaintiff’s current solicitors, he does not appear to have been specifically asked to give an opinion on causation. I do not have too much doubt that the reason why is because the insurance agent accepted that the plaintiff suffered a compensable injury, therefore not necessitating any expression of opinion on causation.
29I think what is abundantly clear from the analysis I have conducted thus far, is the defendant’s thesis that the plaintiff had a symptomatic lower back problem prior to the occurrence of the compensable injury, has little merit. I think I have set out sufficient reasons to support that conclusion thus far, but what is very compelling, is the opinion of Mr Hunt that the football injury had not much bearing on the occurrence of the plaintiff’s “work related injury”.[25] It is difficult to accept that Mr Hunt did not turn his mind to the football injury, and whether it was to be implicated in the discal injury, which he diagnosed as resulting from the plaintiff’s workplace injury.
[25] PCB 72
30I do not accept that this is an aggravation case, as contended for by the defendant. I accept that the plaintiff suffered a primary injury to his lower back, consistent with the opinion of Mr Hunt. I must add that there are other medical practitioners who examined the plaintiff on a medico/legal basis who have provided similar opinions, which also fortify me in reaching the conclusions which I have set out above.[26]
[26]Dr Davison, occupational physician, who examined the plaintiff on 13 September 2018 at DCB 16-22; Professor Marshall, surgeon, who examined the plaintiff on 24 November 2020 at DCB 28-58; Mr Hooper, orthopaedic surgeon who reviewed material forwarded to him, but did not examine the plaintiff, at DCB 59-60, and Mr Grossbard, orthopaedic surgeon who examined the plaintiff on 15 February 2022 at PCB 132-136 and a supplementary report at PCB 137-138. They all obtained a history of the football injury.
The compensable injury
31I think I have said enough about how the plaintiff suffered the compensable injury and now turn to a short summary of the medical treatment he obtained subsequently, and the course of events for him up until he allegedly suffered an aggravation of the compensable injury in 2018.
32Mr Hunt reviewed the plaintiff on 17 September 2012 and advised him that surgery had a place in his treatment to effect a settlement of his lower back and buttock pain. He noted that the plaintiff’s right leg pain had largely settled. The plaintiff was keen to have the surgery.[27] He underwent the surgery in the form of a microdiscectomy on 10 November 2012.[28] Mr Hunt reviewed the plaintiff through 2012 and 2013. It would appear he was free of right leg radicular pain when Mr Hunt reviewed him on 21 May 2013, but was still experiencing lower back pain. That was the last occasion that Mr Hunt reviewed the plaintiff before the plaintiff returned to see him in September 2018.[29]
[27] PCB 74
[28] PCB 75 and 76
[29] PCB 81
2014 to 2018
33The period between the plaintiff last seeing Mr Hunt and then returning to see him in September 2018 was controversial, for reasons which I will now explain.
34In the plaintiff’s first affidavit, he described continuing to “have back issues” between 2014 and 2018, however he was close to pain free for about a year after the surgery.[30] Subsequently, he experienced a return of lower back pain and right leg pain. He returned to see Mr Hunt in September 2018. That coincided with what he describes as a flare up of pain when he was engaged in gym exercises and, in particular, an exercise known as a “burpee”.
[30] PCB 12
35The plaintiff attended a gym known as Goodlife in Dingley. He commenced attending that gym from early 2017. He had attended gyms previously and, at times, following the occurrence of the compensable injury. He did a mixture of gym work. He estimated that he was attending a gym about twice a week between 2014 and 2018. The plaintiff described a burpee as a push-up, and then in one motion he would rise to a standing position in a star-jump-type motion, then he would repeat that exercise about five times.[31] He experienced sharp pain in his lower back as a result of engaging in a burpee. He then experienced pain in his lower back and in his right leg.[32]
[31] T67-68
[32] T68
36The defendant submitted that the burpee incident constitutes an aggravation of the plaintiff’s pre-existing lower back injury, and that the real cause of the pain and suffering consequences contended for by the plaintiff have resulted from that aggravation, and not from the original injury. I will return to this issue later in these reasons.
37The nub of the controversy arose through the plaintiff’s evidence that he continued to suffer lower back and right leg pain throughout the period of 2014 to 2018, and sought medical treatment from three different medical clinics at various times.
38Under cross-examination, the plaintiff was asked whether he sought any medical treatment for the persisting back pain he referred to in his first affidavit. He then described medical treatment which he did not refer to in either his first affidavit, or his second affidavit, affirmed 27 July 2022. He saw doctors at a 24-hour clinic in Camberwell on a few occasions. He saw doctors at a few clinics in the Melbourne CBD. He recalled that one of those clinics in the Melbourne CBD was Medical One QV, where he saw doctors in 2013 and 2014. He told doctors who attended upon him he was suffering from lower back pain, and he was prescribed medication as a result of one or two visits to those clinics. He recalled being prescribed Panadeine Forte and Endone.[33]
[33] T26-27
39Under further cross-examination, the plaintiff said that the reason why he did not tell his lawyers that he had attended those clinics, was because he was not aware there was a gap in his evidence relevant to medical treatment. He added, he was not aware there were no clinical records from doctors who treated him between 2014 and 2018 until he was told on the first day of the hearing.[34] Later, he sought to explain why he did not refer to attending those clinics in his affidavits, saying that he understood the clinical records of the doctors who treated him between 2014 and 2018 “were going to be brought up” and, because of that, he did not think to make reference to that treatment in either of his affidavits.[35] He denied that his evidence he saw medical practitioners between 2014 and 2018 was untrue.
[34] T29
[35] T49-53
40Overnight, and before the commencement of the second day of the hearing, and after the defendant had completed its cross-examination of the plaintiff, it tendered the clinical notes of a medical clinic known as Medical One QV. The clinical notes contain only one entry of 2 September 2014, when the plaintiff attended for treatment for an injured right hand.[36]
[36] Exhibit 2
41Under further cross-examination, the plaintiff was referred to other clinical notes covering some of the period of 2014 to 2018. The clinical notes of MyClinic Prahran[37] reveal that the plaintiff saw Dr Saber Goher, general practitioner, and other medical practitioners at that clinic, between 17 May 2016 and 24 February 2017. The clinical notes of Medifirst Family Clinic reveal that the plaintiff saw Dr Lionel Wu between 3 August 2017 and 31 May 2018.[38] On no occasion did the plaintiff seek any medical treatment for his lower back.
[37] DCB 153-163
[38] DCB 130-152
42I found the plaintiff’s evidence that he continued to be troubled by lower back pain and right leg pain to be very unsatisfactory, to the point where I am doubtful that he experienced pain to the extent he described. There are a number of reasons why I have reached that conclusion.
43Firstly, Mr Hunt last reviewed the plaintiff on 21 May 2013.[39] He noted that the plaintiff told him that he was free of left leg pain,[40] but continued to experience some lower back symptoms. It was at the time of that review Mr Hunt discharged the plaintiff from his care. I accept, therefore, that at that time, and thereafter, the plaintiff probably experienced some lower back pain.
[39] PCB 81
[40]I think this is a mistake on Mr Hunt's part. The plaintiff appears to have only complained of right leg pain, although, on review with a further MRI scan Mr Hunt noted a further prolapse on the left-sided L4-5 at PCB 76 and 81.
44Secondly, the plaintiff never took up the invitation made by Mr Hunt to return to have him further review the condition of his lower back until after the burpee incident.
45Thirdly, and additionally to the last point, I think it is less probable that the plaintiff sought any medical treatment from the doctors he nominated allegedly treated him between 2014 and 2018.
46Fourthly, I think it is somewhat disingenuous on the part of the plaintiff to try to shift the responsibility for the analysis of his case entirely onto his solicitors. I do not accept he did not know it was important for him to demonstrate he continued to suffer from the lower back pain between 2014 and 2018. Furthermore, to sit back on his laurels and say that this was going to be attended to because he understood that his solicitors would obtain clinical records, is quite nonsensical. His solicitors apparently did not know of the doctors he nominated until the first day of the hearing, so how could they have obtained those clinical records in the absence of instructions from the plaintiff at an earlier point in time.
47Fifthly, according to the his résumé, and the content of his affidavits, the plaintiff continued to work full time until the burpee incident. While the fact that he was working is not, of itself, enough to persuade me that he was not suffering from symptoms of lower back pain, the fact that he was working does persuade me that his lower back pain was tolerable, to the extent that it did not interfere much at all in his capacity to undertake the tasks required of him in his employment during that period.
The burpee incident
48The plaintiff said very little about what exercise routine he was doing in his first affidavit. He merely referred to needing to return to Mr Hunt because of a flare up while doing burpees in July 2018. Under cross-examination, the defendant endeavoured to demonstrate that a burpee is a significant weight-bearing exercise combining a push-up, then standing quickly to an erect position with a star jump. The defendant then chose to describe it as an aggravation, and essentially contended that it was something like an intervening event.
49Under cross-examination, the plaintiff described the onset of pain when he was engaged in the burpee as “pretty sudden”, producing sharp pain. He was going from the push-up to the jump when he experienced that level of sudden pain.[41]
[41] T68
50It would appear that the plaintiff persevered with the onset of the pain produced by the burpee incident for a short period of time before attending the Monash Medical Centre Emergency Department on 4 August 2018. In a courtesy letter to Dr Wu, the attending staff member noted that the plaintiff experienced mild lower back pain and right gluteal pain resulting from the burpee episode, which continued. On the night before he went to the Emergency Department, he experienced spasms and pain on walking. He was prescribed medication and referred into the care of Dr Wu.[42]
[42] PCB 109
51The plaintiff saw Dr Wu on 6 August 2018, who noted that the plaintiff had suffered an injury at a gym two weeks previously, resulting in lower back pain. He noted that the plaintiff had a similar problem ten years previously, and had undergone surgery.[43] He referred the plaintiff to Mr Hunt, who next saw the plaintiff in September 2018.
[43] DCB 137
52In a courtesy letter to Dr Wu, dated 11 September 2018,[44] Mr Hunt noted that the plaintiff suffered increasing symptoms of pain in his lower back working out at a gym six weeks previously. The note Mr Hunt took did not specifically refer to the burpee incident. He noted the treatment which the plaintiff had undergone since that incident. On examination, Mr Hunt found that the plaintiff had a slightly antalgic gait, some wasting in his right calf, some slight power reduction of dorsiflexion of the ankle, and dorsiflexion of the greater and lesser toes. He found it difficult to elicit an ankle jerk on the right side, and found positive straight leg raising with quite significant irritability in his right leg at 30 degrees, compared with 60 degrees on the left side. He reviewed an MRI scan, which showed degenerative disease at L4-5 and L5-S1, with some thickening of the right-sided S1 nerve root and evidence of the previous surgery. He did not consider there was any major nerve compression. Mr Hunt considered that the plaintiff was suffering from recurrent right leg radicular pain, which he believed was related to the previous injury to his lower back. He suggested that the plaintiff undergo CT-guided epidural injections.
[44] PCB 83-84
53The burpee incident, with the resulting recurring lower back pain and right leg pain, led to the plaintiff making a claim for no-fault compensation. The insurance agent referred the plaintiff to Dr Gary Davison, who examined the plaintiff on 13 September 2018. He considered that the burpee incident had resulted in an aggravation of the area of the plaintiff’s lower back where he underwent surgery, namely, L5-S1.[45] Professor Vernon Marshall appears to have been of a similar opinion that there was a recurrence due to the burpee incident.[46] Mr Jonathan Hooper did not examine the plaintiff. He was asked to review material forwarded to him. In a very short report, he observed that the underlying pathology in the plaintiff’s lower back continued to cause some discomfort in the plaintiff’s spine. However, Mr Hooper considered that the plaintiff had been satisfactorily and successfully treated, and the continued episodes of discomfort experienced by the plaintiff were due to continued aggravation of the underlying degenerative changes, and the episode of lifting resulting in the compensable injury no longer materially contributed to the symptoms currently experienced by the plaintiff. He otherwise offered no opinion whether the burpee incident resulted in an aggravation, nor did Dr Davison, nor, apparently, Professor Marshall.
[45] DCB 16-27, in particular at PCB 20
[46] DCB 28-58, in particular at DCB 37
54The short summary I have provided thus far is said by the defendant to support its submission that the burpee incident was an aggravation, and that it is the aggravation which is now the cause of the symptoms of pain and disablement suffered by the plaintiff, and is responsible for the pain and suffering consequences contended for by the plaintiff.
55The question that arises for consideration is whether the burpee incident was a flare up, a recurrence, or an aggravation of the plaintiff’s pre-existing lower back condition. I am far more persuaded by the opinion of Mr Hunt, who considered that what he found when he examined the plaintiff on 11 September 2018 was a recurrence, although he also used the expression “re-aggravation”. It is best to set out his observation in full:
“A 30 year old who currently has recurrent right leg radicular pain symptoms which most likely relate to the previous injury to his lower back which was covered under WorkCover, with re-aggravation of the underlying problem with no evidence of nerve compression on imaging studies but certainly evidence of significant irritative sciatica.”[47]
[47] PCB 83-84
56The use of both expressions “recurrence” and “re-aggravation” confuse the issue, that is, whether the burpee incident is a recurrence or an aggravation. He repeated the same opinion in a substantive report, which he provided to the solicitors for the plaintiff, dated 1 October 2020.[48] What I take from my analysis of Mr Hunt’s report and courtesy letters, is that the pathology responsible for the plaintiff’s current pain in his lower back and right leg, and his level of disablement, is due to the compensable injury for which he had surgical treatment. At the time when the plaintiff underwent the surgery, the pathology was clearly identified by Mr Hunt, and doing the best I can, I understand the plaintiff’s current pathology to be the same. Apart from Mr Hooper, there appears to be consistency in the opinions of Dr Davison and Professor Marshall, with that of Mr Hunt.
[48] PCB 92-108
57Despite the recurrence and/or aggravation, these medical opinions lead me to conclude that it is the compensable injury that is responsible for the plaintiff’s current symptoms of pain in his lower back and right leg, and his level of disablement. What the recurrence and/or aggravation did was to cause the enlivening of the same symptoms which the plaintiff experienced at the time when he was initially treated by Mr Hunt, which led to the surgery.
58In Altona Bus Lines v Lococo,[49] the Court of Appeal dealt with an appeal which bears some similarities factually to what I am dealing with here. I have disposed of this issue in the same way as the trial judge in Lococo, that the pain experienced by the plaintiff in his lower back and right leg, and his level of disablement, are consequences of the compensable injury. Buchanan, JA approved of that approach, as did the other members of the Court of Appeal.[50] Furthermore, the conclusion I have reached is consistent with the opinions of Mr Hunt, Dr Davison and Professor Marshall, which fortifies me in reaching this conclusion.
[49] [2002] VSCA 159 ("Lococo")
[50] (Supra) at paragraph [12]
Consequences
59At the time when the plaintiff saw Mr Hunt on 11 September 2018, he had been placed on the medication regime which involved the use of Naprosyn, Tapentadol, Lyrica and Endone. He stopped using Lyrica and Endone. He had been off work for about two weeks prior to seeing Mr Hunt on that occasion. He was referred for a further MRI scan. Mr Hunt advised the plaintiff to undergo a CT-guided epidural injection.[51] The plaintiff estimated that he has had four or five epidural injections since the first one in 2019.[52] He was also referred to Dr Richard Ong, specialist pain rehabilitation physician, who he first saw on 1 April 2020. He organised for the plaintiff to have a left L5 nerve root block at Epworth Richmond Radiology.[53]
[51] PCB 83-84
[52] T80
[53] PCB 123-125
60The plaintiff has also had physiotherapy since the burpee incident. It would appear that it was arranged by Mr Hunt, and then by Dr Allen Macbell, general practitioner, who commenced treating the plaintiff on 2 November 2020. The plaintiff is currently using an anti-inflammatory, Meloxicam, which he takes as a last resort to break through acute pain. He resorts to using it about every three months or so.[54] The plaintiff no longer uses any opiate-based medication. He freely admitted that he became addicted to opiate-based medication, to the extent that he would seek out medical treatment for the specific purpose of being prescribed that kind of medication to feed his addiction. He was eventually treated by Dr Ong for the addiction, and was able to break free of it by 2020.[55]
[54] T78
[55] PCB 123-125, and T40-41 and 45-48
61The plaintiff has had periods of time off work since the burpee incident. It is unclear how long he had off work, however, according to his résumé, he has pursued full-time work with the Department of Human Services from April 2019 to July 2019; with BMW Financial Services from July 2019 to March 2020, and then with The Forage Company. He has also done some casual work as an artist booking agent with Jump Touring Artist Agency, and also work as a DJ.[56] The impression I was left with after the plaintiff was cross-examined about his work history since 2018, is that he has tolerated work reasonably well, and continues to, in his work with The Forage Company.
[56] PCB 20-21 and T30-37
62The defendant submitted that, if I reached the point where I considered whether the plaintiff’s pain and suffering consequences met the statutory test, then the plaintiff cannot succeed, because the plaintiff has not, and cannot, disentangle the impairment consequences of his lower back from the impairment consequences of a symptomatic right-hip problem, for which he has been treated by Mr Hunt.
63In Peak Engineering Pty Ltd & Anor v McKenzie[57] Maxwell P, with whom the other members of the Court agreed, observed:
“In my respectful opinion, these grounds must be upheld. In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The matters identified in the previous paragraph were all directly relevant to the enquiry in the present case, and needed to be addressed squarely.”[58]
[57] [2014] VSCA 67
[58] At paragraph [24]
64The substantial evidence which the defendant calls on is to be found in the courtesy letters and reports of Mr Hunt. In his courtesy letter to Dr Anilkumar Patil, general practitioner, dated 11 November 2019, Mr Hunt referred to the internal rotation of both hips demonstrating positive impingement signs, with a feeling of cramping in the plaintiff’s groin. He noted that there was a family history of degenerative changes in the hips and his mother’s need for a hip replacement.[59]
[59] PCB 85
65In a letter to the plaintiff, dated 14 November 2019, Mr Hunt informed the plaintiff that the abnormal formation of the femoral head of his right hip had caused wear and an arthritic process. He considered that was the cause of the plaintiff’s complaints of stiffness in his right hip, which might have been contributing to irritation of his lower back.[60]
[60]PCB 86, and also a further letter dated 22 November 2019 at PCB 87, in which Mr Hunt commented on the results of an MRI scan of the plaintiff's right hip.
66In a courtesy letter to Dr Patil, dated 5 December 2019,[61] Mr Hunt apportioned responsibility for the plaintiff’s lower back and right hip:
“We know that Brad has problems with his back and is experiencing mainly back pain and not so much hip pain. The MRI scan shows that he has cam type femoroacetabular impingement. He does not have groin pain or lateral hip pain, nor does he have radicular pain in his lower limbs. He is having more pain across the lower back to the lumbosacral region. I note that he is on a care plan and has seeing (sic) a physiotherapist once.”[62]
[61] PCB 88-89
[62]PCB 88
67In a courtesy letter to the Barbara Walker Centre for Pain Management, dated 6 December 2019, Mr Hunt again referred to the plaintiff having a stiff right hip. He added that the plaintiff was not symptomatic, although the stiffness in his right hip might be contributing to stress on his lower back.[63]
[63] PCB 90
68In a report to the solicitors for the plaintiff, dated 1 October 2020,[64] Mr Hunt described the condition of the plaintiff’s right hip in the same way as he had in the courtesy letters I have just summarised, however, despite having earlier described the plaintiff’s right hip as asymptomatic, he described it as symptomatic when he provided a diagnosis in the body of the report. It is difficult to reconcile how he described it as symptomatic, because he does not articulate what these symptoms are, except for the stiffness, and perhaps the stiffness is what he meant as the symptom troubling the plaintiff.
[64] PCB 92-108
69The upshot of my analysis of the opinion of Mr Hunt regarding the plaintiff’s right hip is that it was symptomatic, in that it was stiff, and the stiffness might cause some stress on his lower back.
70Although Professor Marshall referred to the plaintiff’s right hip in the body of his report, neither Mr Garry Grossbard, Dr Davison nor Mr Hooper did in any significant way; they concentrated on an analysis of the plaintiff’s lower back.
71The plaintiff said very little about his right hip in either of his affidavits. Under cross-examination, he agreed that he had been told by Mr Hunt that he had a significant problem with his right hip, although, that appears to me at odds with the way in which Mr Hunt described the condition of the plaintiff’s right hip. The plaintiff denied that he was unable to determine whether the pain he is experiencing is coming from his lower back or his right hip. He added that the pain he experiences down the back of his right leg is exactly the same as when the compensable injury occurred. He agreed that he has pain in both his lower back and his right hip when he is physically active, however when he was pressed on the issue of which of the lower back and right hip cause him the most pain, he said that, when he ramps up physical activity, 90 percent of the time the pain he experiences is in his lower back.[65]
[65] T74 ꟷ T75 and T83
72On the basis of this analysis of the evidence, I am not satisfied that the plaintiff’s right hip is as symptomatic and disabling as contended for by the defendant. That is supported by the opinion of Mr Hunt. Nor is there any other medical evidence which puts the degree of symptoms and disability as high as it having much more than a modest influence on the plaintiff’s overall functioning, in particular, the functioning of his lower back and right hip area. I think the plaintiff’s estimate of the extent to which he has symptoms in his right hip is consistent with the evidence of Mr Hunt, and I accept his evidence that 90 percent of the pain and disablement he experiences is caused by his lower back.
73The plaintiff swore two affidavits in which he has set out, in very significant detail, the extent of the pain and suffering consequences resulting from his lower back.
Pain
74I accept the plaintiff’s evidence that he experiences pain as follows:
· Pain on a 3/10 estimate intermittently throughout the day. The pain varies with activity. He is never totally pain free.
· Pain in both legs, and a shooting pain in his left leg.
· Some interference with bladder function.
· An experience of discomfort in his genitals.
· An experience sometimes of shooting, electric and sharp pain in his lower back.
· Interference with the ability to sleep.
· The need to limit the extent of bending, twisting, kneeling squatting and extended walking due to pain in the lower back.
· Twisting results in pain down his leg (I presume his right leg).
· Walking downstairs can aggravate the pain in his lower back.
· The need to exercise care when lifting.
· Driving a car can result in increased pain.
· Some interference with intimate activity with his partner.
Recreational/sporting activities
· A significant restriction in his ability to engage in gym-related fitness exercise.
· Prolonged sitting when engaged in leisure activities causes discomfort.
· An inability to run for fitness purposes.
· The need to cease playing Australian rules football following the occurrence of the compensable injury.
· An inability to attempt a return to playing cricket.
· Restrictions on the way in which he is able to now play golf and the need to avoid a swing which places too much strain on his lower back.
Medical treatment
· The need for the treatment provided by Mr Hunt, Dr Ong, and the physiotherapist who treated the plaintiff more recently.
· The need for epidural injections to effect a reduction in pain in the lower back.
· The modest use of an anti-inflammatory medication used very occasionally.
Work
· Difficulty engaging in manual work, such as lifting and carrying.
75I accept that the plaintiff experiences pain in his lower back, and suffers interference with activities, as I have summarised in the preceding paragraph. I think it rather less likely he would have continued playing football much beyond his late twenties, and I am not persuaded that he would have returned to playing cricket, although I accept that the nature and extent of his lower back injury would prevent engaging in those sporting activities.
76The plaintiff is able to engage in general activities of daily living. There is no suggestion by him that his capacity to engage in general social, low-level recreational and domestic activities is impaired to any significant degree. He no longer needs any particular medical treatment. His use of medication is modest, and part of the reason for that is his avoidance of opiate medication.
77I am fortified in accepting the plaintiff’s evidence because it is supported, to some extent, by the affidavit of his mother, Michelle Woosnam, affirmed on 26 July 2022.[66] She is unable to confirm much of the detail deposed to by the plaintiff, and referred to in the medical material which I have analysed, however the general flavour of what she says confirms that the plaintiff has been affected by the compensable injury significantly. I am more fortified in accepting the plaintiff’s evidence, because it is supported, to a significant degree, by the affidavit of his fiancée, Renee Hutchison, affirmed on 26 July 2022, in which she was able to confirm much of the detail deposed to by the plaintiff. She has observed the plaintiff at reasonably-close range, and is able to give relevant evidence of the circumstances in which the plaintiff has been troubled by the compensable injury.
[66] PCB 52-54
Creditworthiness and reliability
78The defendant made a sustained attack upon the plaintiff’s creditworthiness and reliability. I am not persuaded that it was of such gravity as to overwhelm the positive findings I have made in favour of the plaintiff. I summarised the attack upon the plaintiff’s creditworthiness and reliability earlier in these reasons. I have also summarised what I think of the plaintiff’s evidence regarding the gap between 2014 and 2018. There are some other aspects of the defendant’s attack on the plaintiff’s creditworthiness and reliability which I have not summarised. The defendant summarised it in paragraph 2 of its very helpful Outline of Submissions. His denial that he informed medical practitioners of a history of symptoms is troubling. His failure to inform Dr Jaya Reddy, the treating psychiatrist, of any persisting lower back problems is also troubling. However, to the extent that these matters impinge upon the plaintiff’s credit and reliability, they need to be seen in the context of the evidence which I have summarised and analysed, which confirms each of the findings I have made in favour of the plaintiff, and I think demonstrates the extent to which I have been prepared to accept the plaintiff’s evidence where it is supported by other evidence.
Disposition
79The plaintiff is thirty-four years of age. He suffered the compensable injury when he was twenty-four years of age. It effectively limited his capacity to engage in general activities. Although it would appear he obtained a reasonable level of recovery after the surgery, I do accept that he continued to have some symptoms of pain in his lower back and right leg, but, as I have already observed, not to the extent he required any significant medical treatment. However, following the recurrence of his lower back pain in 2018, after the burpee episode, it is clear that he has suffered significant levels of pain in his lower back and legs, and other disquieting symptoms affecting his bladder and genitals. He has otherwise been able to work, but he is restricted in engaging in the activities which I have summarised in paragraph 74 above.
80I think that these consequences in a young man of thirty-four years of age are very significant. Therefore, on the basis of my analysis of the evidence and the findings I have made, I am satisfied that the consequences to the plaintiff of the impairment of function of his lower back, with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments, is serious.
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