Smith v VWA
[2022] VCC 1330
•22 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-19-00056
| Derek Smith | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 July 2022 | |
DATE OF JUDGMENT: | 22 August 2022 | |
CASE MAY BE CITED AS: | Smith v VWA | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1330 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE ACCIDENT COMPENSATION
Catchwords: Serious injury – lower back injury – deterioration/aggravation of lower back due to work injuries – deterioration of back injury due to work duties – consequential left ankle injury – disentangling psychological injury in 2010 and other injuries to the neck and shoulders – pain and suffering and loss of earning capacity
Legislation Cited: Workplace Injury and Rehabilitation Act 2013 (Vic)
Cases Cited:Humphries v Poljak (1992) 2 VR 139; Peak Engineering & Anor v McKenzie [2014] VSCA 67; TAC v Katanas [2017] HCA 32
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC Ms F Blair | Slater & Gordon |
| For the Defendant | Mr C O’Sullivan | Landers & Rogers |
HER HONOUR:
1Under Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), Derek Smith seeks leave to issue common law proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of a lower back injury sustained by him during the course of his employment from 20 October 1999 to about August 2015 and a consequential left ankle injury.
2Mr Smith, who is 53 years old, sustained an injury to his lumbar spine, shoulders, chest and neck in a transport accident on 4 June 1999 while working as a police officer. He returned to work the following day but had some ongoing back pain. He was transferred to Mansfield police station in 2000. He says that his work duties thereafter, which included prolonged sitting, wearing a heavy equipment belt, and performing heavy duties outdoors during the snow seasons, resulted in a deterioration of his back condition to the extent that he required surgery on 1 September 2006 in the form of a left L5/S1 microdiscectomy, further surgeries in the form of a further decompression and fusion at L5/S1 in September 2015, and removal of the spinal hardware in February 2020. The Victorian WorkCover Authority accepted liability for the 2015 and 2020 surgeries. Mr Smith suffered a left ankle injury when he rolled his ankle while recovering from the 2006 back surgery. The left ankle injury necessitated arthroscopy in 2007 and resulted in osteoarthritis requiring arthrodesis in June 2017.
The issues
3Mr Smith says that against the background of a transport accident related back injury, he suffered an aggravation which caused the prolapse at L5/S1, the need for back surgery, the resulting ankle injury (and consequential ankle surgeries), and the later requirement for two further back surgeries, including the need for a lumbar fusion. He says that the consequences of the impairment of the function of the lumbar spine include an incapacity to work and pain and suffering consequences which meet the test for serious injury.
4The defendant says that Mr Smith’s treating practitioners at the time (2007- 2008) attributed his low back injury to the transport accident but that, to the extent that there is evidence of work-related aggravation of that injury, Mr Smith has failed to establish that the additional impairment of the lumbar spine produced serious injury consequences, in particular when it caused him to be unfit for work. If the plaintiff relies on October 2014, when he was referred to a neurosurgeon, or even September 2015, when he underwent fusion surgery, there is evidence that by that time,[1] the psychological injury which Mr Smith suffered in 2010 and worsened thereafter, had caused him to cease employment in October 2013, and to remain unfit for work thereafter. Furthermore, in terms of pain and suffering consequences, the defendant says that the plaintiff has failed to discharge his onus to identify the consequences referable to the impairment of the low back as opposed to those referable to his other physical injuries (not relied upon in this application) and/or his psychological evidence. Given the inability of experts to separate out which consequences flow from which impairment, the plaintiff’s application should fail.
The hearing
[1] Transcript of Proceedings, Smith v Victorian WorkCover Authority (County Court of Victoria, CI-19-
00056, Judge Davis, 11 July 2022) (‘T’) T19-22.
5Mr Smith gave evidence and was cross-examined. No other witnesses were called to give evidence. The parties tendered court books and exchanged and filed written submissions after the conclusion of the hearing. I have considered all of the material tendered and the submissions made by counsel.
The evidence of Mr Smith and his treating doctors
6As Mr Smith suffered pre-existing injuries to his shoulders and back as well as a pre-existing psychological injury, one of my tasks is to distil the impact of the claimed work-related permanent impairment of the function of the lumbar spine (and the consequential impairment of function of the left ankle) from the impact of these other injuries which are not the subject of the application. I have briefly dealt below with the evidence relating to each of these matters.
7Mr Smith completed Year 11 at school and then completed an apprenticeship as a floor coverer. He worked in that trade for 9 years before joining Victoria Police in 1994 as an operational officer. He received two commendations for his police work. He was transferred to Mansfield in 2000.
8Mr Smith’s evidence concerning his lower back and left ankle injuries is scattered throughout his three affidavits. My summary of it is interlaced with the contemporaneous medical material.
9On 4 June 1999, during the course of his police duties, Mr Smith was injured in a transport accident, suffering bruising injuries to the shoulders, and arms, as well as pain in the chest, neck and back areas. He was able to get back to his full range of police duties but suffered worsening symptoms in his shoulders and back due to the heavy duties he was required to perform, the amount of sitting at work, the awkwardness of the gun belt and holster, and later, of the operational vest he was required to wear.[2]
[2] Plaintiff Court Book (‘PCB’) 10.
10He saw his then general practitioner, Dr Graham Slaney, in 2001 and 2002 with ongoing pain in both shoulders.[3] He had two keyhole operations on the left shoulder, in 2001 and 2003, to repair a labral tear, but suffered residual pain, restricted movement, and lack of strength. His treating surgeon for the first operation, Mr Rod Dalziel, reported that when he last reviewed Mr Smith in February 2002, he indicated he was able to return to restricted light duties at work.
[3] PCB 150-153.
11Mr Smith stated that he received no particular treatment for his back pain until 2002,[4] when he saw a chiropractor “following a worsening of pain associated with work activities such as wearing the heavy gun belt, which was required as part and parcel of his police duties”.[5] The lower back pain settled, then flared up again in 2004.
[4] PCB 28.
[5] Ibid.
12Mr Smith stated that his left shoulder and back pain caused him to have time off work in 2005. He stated:
I was doing a lot of sitting and work and this made it worse. I was also troubled by the gun belt and holster. Later on, the IOEV operational vest I had to wear all the time was quite heavy and awkward.[6]
[6] PCB 10.
13On 1 June 2005, Dr Slaney noted that Mr Smith complained of lower back and left shoulder pain, but no specific injury, and concluded the back pain was secondary to his posture at work, sitting for long periods without active duty.[7]
[7] Ibid 171.
14Mr Smith complained of low back pain, without sciatica, to another general practitioner, Dr Andrew Wettenhal, in November 2005.[8] By early 2006, he saw various general practitioners complaining of chronic back pain, with disturbed sleep. Dr Laura Carter described his complaint on 3 March 2006 as one of “back/hip pain – secondary to work related injuries (work as a policeman), with some difficulties initiating urination”.[9] On 24 March 2006, Dr Carter noted that Mr Smith attended requesting a report on his back for work, and took a history of:
… background of lower back pain as well as L shoulder pain, groin pain work related problem with back, likely secondary to heavy gun-belt.
[8] Ibid 172.
[9] Ibid 173.
15Ms Smith’s treating neurosurgeon, Mr Greg Malham reported that Mr Smith presented to him in August 2006 with a three-month history of work restrictions due to severe left sided sciatica and lumbar back pain.[10] After the microdiscectomy, which was successful in relieving his sciatica, Mr Smith suffered a leak of cerebrospinal fluid (‘CSF’) through the wound which was re-sutured twice. Mr Smith said he was unsure whether he told Mr Malham about whether work duties had aggravated his lower back and may just have mentioned the transport accident in 1999 to him because it was the first time he recalled experiencing any back pain.[11]
[10] PCB 59.
[11] Ibid 28.
16In late 2006, while recovering from back surgery, he rolled his left ankle and injured it. In early 2007, he saw a foot and ankle surgeon, Mr Mark Blackney, who recommended arthroscopy. The procedure was performed on 30 March 2007 but his recovery was complicated by a staph infection and septic arthritis requiring further arthroscopy in early May 2007.
17In May 2007, Mr Smith was continuing to receive intermittent physiotherapy and massage for his lumbar spine and also saw a podiatrist.[12]
[12] DCB 74.
18Mr Smith continued to suffer low back pain, worse with movement,[13] and underwent a left L5/S1 facet joint injection in January 2008 to relieve what Mr Malham diagnosed as facet joint arthropathy. Mr Malham noted that imaging showed a recurrent left L5/S1 disc prolapse compressing the left S1 nerve root which was not symptomatic and “not his major problem, which was the L5/S1 facet joint arthropathy”.[14]
[13] Ibid 67.
[14] Ibid.
19In May 2008, Dr Ordonez, the Assistant Police Medical Officer, reported to Victoria Police that Mr Smith was still “non-operational” due to his motor vehicle injuries that resulted in surgery.[15]
[15] Ibid 272.
20Upon review on 22 October 2008, Mr Malham noted that Mr Smith reported no low back pain or left leg pain, and was intending to return to full operational police duties.[16] On 5 December 2008, his treating general practitioner, Dr Karen Holzer, cleared him to return to full duties. Mr Malham assessed Mr Smith by telephone in February 2009, and Mr Smith stated that he had been performing full operational duties since mid-December 2008 with “no significant low back pain, left sciatica or left ankle pain”.[17] Mr Malham concluded that, having returned to full duties, Mr Smith had no incapacity for work, and had an excellent prognosis for future work.[18] During this period, however, Mr Smith continued to perform heavy duties at work.
[16] PCB 64.
[17] Ibid 30.
[18] Ibid 69.
21Mr Smith stated that he recovered from the back and left ankle surgeries and “got back to full duties and to playing sports”,[19] including weekly tennis and golf, as well as a season of football in 2011 or 2012. He suffered from intermittent flare ups of back pain.[20]
[19] Ibid 10.
[20] Ibid 29.
22He stated that in 2010 he was getting further back pain “which continued, because of the heavy duties I was required to do at work, which was ongoing”.[21]
[21] Ibid 11.
23The physical duties he performed at work at that time was described as follows:
That work involved numerous activities including snowmobile operations, four-wheel driving work, off-road motorcycling, winching and chaining work, chainsaw work and alpine duties/skills and navigational work.[22]
[22] Ibid 9.
24Mr Smith stated:
As time went on, these duties worsened my motor vehicle related injuries and caused additional problems.[23]
[23] Ibid
25On 21 January 2010, Mr Smith was injured by a number of offenders in an assault connected with his work. He suffered injuries to his right shoulder, right hand, right thumb, right cheek, head, chest and neck. He received threats from them, which worried him greatly. His psychological condition was worsened by what he considered to be inadequate handling of the prosecution by police management and inadequate support given to him by colleagues and by VWA. He complained about two colleagues and was further aggrieved by the handling of his complaint. He was referred to psychological counselling in 2012 and continues to receive psychological treatment from Dr Kate McSweeney on an ad hoc basis.[24]
[24] Ibid 30.
26In mid-September 2012, he injured his left knee and left ankle at work while operating a heavy chainsaw to clear fallen tree debris.
27On 24 October 2014, Dr Carter reported that Mr Smith was suffering from gradual onset of severe depression from late 2013 due to “multiple events occurring at work including physical assaults and threats against self and family”.[25] Mr Smith was deemed unfit for work by Dr Cook on psychological grounds on 24 October 2013. Dr Carter referred Mr Smith for psychological treatment with Dr Kate McSweeney and prescribed anti-depressant medication as well as Stilnox. Dr Carter noted that Mr Smith had no current work capacity due to his severe depression,[26] and had been deemed medically unfit to remain with Victoria Police.
[25] Ibid 71.
[26] PCB 75.
28In relation to his back problem, Dr Carter stated that Mr Smith had been able to return to work at numerous points in time after treatment,[27] but that she was referring him to Mr David de la Harpe, neurosurgeon, due to the ongoing nature of his back pain and the limitations it caused his mobility.
[27] Ibid.
29In October 2014, Mr Smith saw Mr de la Harpe for “severe back pain, relating to wearing a heavy gun belt at work, assaults and other work-related injuries”,[28] as well as prolonged sitting. Mr de la Harpe saw Mr Smith on 6 February 2015 with a complaint of ongoing back and left leg symptoms.[29]
[28] Ibid 11.
[29] Ibid 129-131.
30Mr Smith was medically retired by the police force in late July 2015 and his employment was terminated in August 2015. He stated that after this he was unable to return to work because of his “severe ongoing physical and psychological injuries”.[30] Mr de la Harpe performed an L5/S1 revision decompression and fusion surgery on 1 September 2015. Mr de la Harpe considered that Mr Smith would permanently be unfit for manual duties but may be able to return to some form of sedentary occupation. Mr Smith had further surgery in February 2020 to remove the metalware from the first back surgery.
[30] Ibid 12.
31Mr Smith’s left ankle symptoms worsened and in October 2014 he saw an orthopaedic surgeon,[31] Mr Andrew Beischer, who performed a left ankle arthrodesis on 19 June 2017. Dr Beischer reported that as a result of arthrodesis, Mr Smith would be unable to undertake employment that would require him to run or navigate steep terrain, and would find difficulty using stairs and ladders.[32]
[31] Ibid 30.
[32] Ibid 147.
32As at 22 August 2018, he was suffering “constant chronic severe back pain” which, when most severe, could require him to lie down. [33] The pain ran down the left side to the foot, and he had ongoing “chronic severe left ankle pain” which fluctuated and caused him to limp, [34] with numbness and pins and needles in the left foot and toes.
[33] Ibid.
[34] Ibid 13.
33Mr Smith stated that his mental state fluctuated,[35] sometimes dramatically; that he struggled with concentration and memory, and that on bad days he avoided leaving the house and was irritable at home. He spent three weeks as an inpatient receiving psychiatric treatment in 2017 and was resentful that he had received no mental health support from the police force or the insurer earlier.[36]
[35] Ibid
[36] Ibid 16.
34He stated:
Every day, even on ‘good days’, I struggle to get out of bed. I wake up with severe pain and feeling miserable about my constant pain, my situation and the way the Police Force and the insurer have treated me.[37]
[37] Op. cit. 13.
35The pain and suffering consequences of all of the plaintiff’s injuries are set out in detail at paragraphs 63 to 90 of his first affidavit. Some restrictions, such as poor sitting and standing tolerances, are attributed to his back and left ankle injuries. He attributed his limp to the injuries of his “left ankle, hips and back” as well as to pain.[38] He used to do home maintenance but now did very little. He was able to do light cleaning, vacuuming and cooking, but was doing them slowly, due to his “back, hips, left knee and left ankle”.[39] He suffered nightmares and flashbacks at night and was also troubled by severe pain in the “back, ankle, neck and hip areas”.[40] He stated that his driving was limited, but did not state by what. He stated that his sex life and all former recreational activities have been severely affected. He used to play tennis, golf, football and soccer, ride, and go to the gym. He could no longer run or jog, and stated that in the last few years, he had not played any sports “because of my injuries, particularly my back, left ankle and psychiatric injuries”.[41] He was still able to coach his children’s soccer team for two hours on a weekend for distraction, but had to rest for days afterwards due to “the physical pain”.[42] He was no longer able to travel, swim, ski or hike due to “my injuries and my pain”.[43] He was socialising less. He felt lethargic, useless and angry.[44]
[38] Ibid 14.
[39] Ibid.
[40] Ibid.
[41] Ibid 15.
[42] Ibid
[43] Ibid.
[44] Ibid 16.
36On 5 June 2020, Mr de la Harpe opined that Mr Smith would always suffer back pain due to his low back injury and subsequent surgeries and that he was permanently incapacitated for any return to work.[45]
[45] Ibid 134.
37In January 2021, Dr Carter reported a diagnosis of Post-Traumatic Stress Disorder (‘PTSD’) with severe Major Depressive Disorder, requiring medication and psychological treatment and warranting psychiatric input and possible in-patient treatment. She also diagnosed a chronic pain condition resulting from the multiple sites of surgery (shoulders, left knee, left ankle, back), for which he was taking medication, having osteopathy, using braces (knee and back) and orthotics. Dr Carter concluded:
Given the significant number and complexity of Derek’s injuries he is deemed to also be permanently incapacitated for any return to gainful employment.[46]
[46] Ibid 94.
38In her report dated 24 May 2022, Dr Carter noted that Mr Smith continued to suffer chronic pain from injuries to his ankle, hip, shoulder and spine, with intermittent exacerbations for which he was continuing to receive treatment as per her previous report,[47] although he was no longer taking anti-depressants and was relying on psychological counselling. Dr Carter noted that Mr Smith “has suffered enormously as a result of his work-related injuries and the treatment of them … his chronic pain limits what he can do … his loss of identity and role … his resultant psychological distress with the resulting lack of social engagement. This has had a devastating impact on his family and friends causing strain both emotionally and financially”.[48]
[47] Ibid 123.
[48] Ibid 124.
39As at 12 March 2021, Mr Smith stated that he continued to suffer lower back pain.[49] He continued to receive osteopathic treatment once per week for his lower back, left hip, and left ankle, which provided temporary relief from pain.[50] The lower back pain was a constant dull ache with left-sided sciatica, and the pain could become excruciating with any activity.[51] He continued to take pain medication prescribed by Dr Carter (Gabapentin, Panadeine Forte, Celebrex and Endone). He continued to experience fluctuating pain in the left ankle, worse when using stairs and during the cold weather. He was wearing a back brace when doing light cleaning at home, shopping and mowing the lawns, but avoided bending which caused him more back pain, and avoided walking long distances due to his left ankle pain.[52] Each day he was able to do activities only in the morning, then had to lie down for four hours due to back and left ankle pain, before picking his children up from school.[53] He was unable to complete the job of painting his house. He was woken at night by nightmares of being assaulted and also by back or left ankle pain.[54] He remained unable to undertake any sporting or recreational activities with his children, although he still coached them in soccer for a few hours each week. He remained socially isolated, even at training. He became easily agitated and angry and so avoided being with people.
[49] Ibid 19.
[50] Ibid 18.
[51] Ibid 20.
[52] Ibid 21.
[53] Ibid 22.
[54] Ibid.
40His back and left ankle pain resulted in extremely limited tolerances for sitting, standing, walking, twisting, turning, bending and lifting. He had not looked for work as he did not feel that he was capable of any work and had not been offered retraining by the insurer. Not working had eroded his self-esteem. He felt that he was unable to work due to the “physical and mental injuries” sustained while working for the defendant.[55]
[55] Ibid 25.
41As at 16 June 2022, Mr Smith indicated that his back and left ankle pain and sleep disturbance continued. His back pain or related thigh or calf pain would wake him about once a week. Bad dreams continue to wake him regularly.[56] He tries to avoid sleep medication (Endone, Stilnox, Valium) and so only sleeps about four hours per night, which impacts his mood and his ability to cope with his back and left ankle pain.[57] Due to his back and left ankle pain, he no longer skis, hikes, walks long distances, runs, plays golf, or cycles. He cannot drive long distances. His children no longer play soccer but he occasionally umpires his son’s football games. He continues to suffer occasional left knee pain and left shoulder pain with associated neck and eye pain, but considers that “the pain relating to those conditions is significantly overshadowed by the pain and restriction caused by my lower back and left ankle injuries”.[58]
[56] Ibid 33.
[57] Ibid 34.
[58] Ibid 36.
42Mr Smith’s partner, Kate Kelly, deposed to the fact that when they first moved to Mansfield in 2000, he was not physically restricted by any lower back complaints. He was able to ski, play tennis, cricket, football and golf. He did suffer bilateral shoulder pain and had surgery. After his first back surgery, Mr Smith got back to work and got himself relatively fit again. However, he was unable to recover to the same extent from his second back surgery in 2015 and his left ankle fusion in 2017. Currently, he appears to be in constant pain, mainly in the back and left ankle, although also in his left shoulder, neck and left knee. Some days, he is in bed when she returns from work, due to his back pain. He does light housework but can no longer do heavy domestic work or maintenance work around the house. He has trouble on stairs. If he goes to watch a football or netball game on weekends, he goes to bed for a few hours afterwards. He can no longer ride a dirt bike or ski due to his back pain. They cannot go camping or on holidays as he cannot tolerate sleeping rough or on a different bed. His sleep is disturbed at night by pain. He continues to struggle with his mental health.
Plaintiff’s medico-legal reports
Back, left ankle
43Mr Paul D’Urso, neurosurgeon, reported on 10 May 2021 receiving a history from Mr Smith of injuries to the lumbar spine in 1999,[59] of a subsequent aggravation of back pain while using an equipment belt daily, which led to surgery in 2006, and later fusion surgery. Mr D’Urso opined that using the police equipment belt as well as the physical activity performed as a police officer was a significant contributing factor to Mr Smith’s lumbar spine condition. He noted that Mr Smith was at risk of significant degeneration and/or prolapse at the L4/L5 level, the level above the fusion, which was likely to result in the need for further surgery. Mr D’Urso concluded that due to his back condition, Mr Smith was permanently incapacitated for operational police work, and would permanently be precluded from repetitive bending, twisting or lifting, using ladders, or from squatting, sitting, standing or squatting for long periods. It was possible he would be able to work up to 20 hours per week doing light duties within the above restrictions.
[59] Ibid 183.
44Mr William Edwards, foot and ankle surgeon, provided two medico-legal reports to Mr Smith’s solicitors. In his first report, he noted a history from Mr Smith that he stopped work in 2013 for “psychological issues to which his ankle contributed”.[60] Mr Edwards considered that the 2006 incident when Mr Smith rolled his ankle still materially contributed to his left ankle injury, as did the 15 September 2012 incident. He considered it likely that Mr Smith suffered asymptomatic arthritis after the 2006 injury which may have permitted him to continue his pre-injury duties but that his condition was aggravated by the 2012 incident. He concluded that the combined effect of the incidents rendered him unsuitable for his pre-injury duties,[61] although he may be suitable for sedentary or semi-sedentary work.[62] Mr Williams was provided with Mr Blackney’s surgical notes and reported that at surgery the findings indicated significant degenerative changes.[63] Mr Williams considered that it was likely that this degenerative change occurred prior to the fall in 2006, and became symptomatic after that fall. Had his left ankle remained asymptomatic, Mr Edwards considered that Mr Smith could have continued to perform his pre-injury duties. Considering his left foot/ankle alone, Mr Edwards considered that Mr Smith was fit only for sedentary employment, although from “his overall condition” he doubted that even this was possible.[64] He noted that as a result of his ankle problems Mr Smith would require persistent pain management and had suffered a very significant limitation of activities, being unable to play the sports he used to play, to perform home maintenance and housework, or to go shopping more than once per week. In a further report dated 8 March 2022, Mr Edwards repeated his earlier findings.[65]
[60] Ibid 193.
[61] Ibid 197.
[62] Ibid.
[63] Ibid 202.
[64] Ibid 197.
[65] Ibid 200.
45Dr Simone Ryan, occupational physician, reported on 31 May 2021 in relation only to Mr Smith’s back, on the basis of instructions to the effect that the back injury sustained in the transport accident in 1999 resulted in the need for surgery, but that Mr Smith returned to full-time operational duties. However, “some time between the early 2000s through to about October 2012 … Mr Smith’s back injury was aggravated by the wearing of a police equipment belt and other police equipment”,[66] to the point he required repeated back surgeries.
[66] Ibid 205.
46Mr Smith told her that he stopped work because of his back pain but also because of his psychiatric problems of PTSD from 2010 and a secondary psychological condition related to his back pain. Dr Ryan noted that Mr Smith was taking various narcotic and benzodiazepine medication and would benefit from consulting a pain physician. She concluded that the wearing of heavy police equipment during the course of his employment as a police officer was the most significant contributing factor to the development of his back condition. She noted that he had been medically retired in 2015 and could never return to his pre-injury employment. She concluded that Mr Smith would be unable to use ladders, repetitively bend, lift, twist or stoop, push or pull more than 5 kgs or undertake any repetitive manual work. His psychiatric condition may also contribute to an incapacity for work. She noted that Mr Smith had significant physical restrictions which would restrict him from engaging in sports and performing home duties.
Defendant’s medical and medico-legal reports
Left Knee
47Mr Clive Jones, orthopaedic surgeon, examined Mr Smith in relation to his left knee condition in November 2012 and opined that he was fit to work at the station full-time.[67]
[67] DCB 130-131.
48On 3 May 2016, Mr Jones noted that the left knee was stable, but that Mr Smith had undergone further back surgery in 2015 and had ongoing left-sided sciatic symptoms. Mr Jones opined that the back injury alone would make it impossible for Mr Smith to return to his pre-injury duties and that there were limited opportunities in his location for clerical duties.
49Dr Iain McLean, orthopaedic surgeon, reported on 13 June 2019 that Mr Smith suffered a twisting injury to his left knee while playing football in May 2012 and had surgery to repair a torn lateral meniscus.[68] He hyperextended the left knee in September 2012 while working to clear a road and had symptoms which led to a referral to physiotherapy. Thereafter, his left knee problems were overtaken by other significant problems to the low back with sciatica and pain and limitation of movement due to his left ankle injury and subsequent arthrodesis. Dr McLean concluded that Mr Smith was permanently incapable of returning to his pre-injury duties partly due to his left knee problems but mostly due to “his multiple accumulated injuries and psych-emotional factors”.[69] He opined that the left knee problem contributed to a limitation in social, domestic and recreational activities.
Psychiatric
[68] PCB 314.
[69] Ibid 319.
50In October 2012 and again in January 2014, the plaintiff was assessed by psychiatrist Associate Professor Mr Saji Damoradan as suffering from an adjustment disorder with mixed depressed and anxious mood in response to the issues arising from the 2010 assault,[70] and was considered to be totally incapacitated for all work on psychological grounds. It was anticipated that with appropriate treatment, he might achieve a full return to alternative suitable employment within 6 months. However in mid-August 2014, Dr Brendan Hayman reported that Mr Smith had a chronic adjustment disorder with depressed and anxious mood and no capacity for full-time alternative employment.[71] On 24 February 2015, Dr Don Senadipathy, consultant clinical and forensic psychiatrist, reported a diagnosis of chronic dysthymic disorder and opined that Mr Smith’s condition had not stabilised and he had no psychological capacity for any work.[72]
[70] DCB 112-113, 122-125.
[71] Ibid 145.
[72] Ibid 154-155.
51Dr Gregor Schutz, psychiatrist, reported on 1 July 2021 receiving a history from Mr Smith that he had no mental health problems until he was assaulted in 2010 while off duty and sustained physical injuries to his back, right hand and thumb.[73] Mr Smith described being very dissatisfied with the way Victoria Police handled the case against his assailants. He reported that his mental health symptoms developed in 2013 when his WorkCover claim was rejected. Mr Smith expressed the belief that there had been “about an equal impact to his depression from his physical injuries and the way he was treated in the workplace”. [74] Dr Schutz noted that he was no longer taking any medication for his mental health.
[73] Ibid 303.
[74] Ibid 306.
52Dr Schutz diagnosed a Major Depressive Disorder as well as PTSD secondary to the 2010 assault as well as to his exposure to numerous traumas during his employment. Dr Schutz noted that Mr Smith reported aggravation of his pain when he was upset or stressed. For this reason, Dr Schutz noted that:
… there may be additionally a psychiatric component to his pain best classified as Psychological Factors affecting a General Medical Condition.[75]
[75] Ibid 309.
53Dr Schutz concluded that as a result of his combined primary and secondary psychiatric impairments, Mr Smith was permanently incapacitated for all employment, and had already been out of the workplace for over 7 years. Dr Schutz opined that Mr Smith’s mood, anxiety and pain symptoms were interlinked, “with each worsening the other”,[76] and that his symptoms were likely to permanently impact his functioning and quality of life. Dr Schutz recommended further psychological treatment as well as referral to a psychiatrist for reconsideration of psychotropic medication.
[76] Ibid 311.
54In his supplementary report dated 6 September 2021, Dr Schutz indicated that, leaving aside his PTSD, half of Mr Smith’s Major Depressive Disorder was due to the 2010 incident and was likely to permanently preclude him from a return to any employment.[77]
Back, left ankle
[77] Ibid 313.
55Dr Daniel Lewis, rheumatologist, reported on 16 July 2015 that Mr Smith presented with longstanding clinical symptoms of lumbar dysfunction along with left ankle problems and opined that lumbar spine fusion surgery was a reasonable treatment for his back condition.
56Associate Professor Trevor Jones, orthopaedic surgeon, reported on 20 April 2017[78] that Mr Smith’s left ankle condition was work-related, compounded by septic arthritis after arthroscopy, and warranted left ankle fusion.
[78]DCB 166
57Mr Michael Dooley, orthopaedic surgeon, reported on 6 July 2022 that Mr Smith presented with a complaint of ongoing low back pain and left ankle pain.[79] Mr Dooley considered that Mr Smith suffered a soft tissue injury to the back in the transport accident and that this was the predominant reason for the back surgery in 2006, although it was possible that between 1999 and 2006 “some small aggravations of the underlying condition could have occurred in relation to the use of an equipment belt, prolonged sitting, and the adoption of awkward postures”.[80] He considered that in September 2012 Mr Smith sustained a soft tissue injury to the left ankle and lumbar spine, the latter involving some aggravation of underlying degeneration at the lumbosacral level. He considered it possible that, in part, some of Mr Smith’s ongoing back pain was caused by using holsters and an operational vest as well as by prolonged sitting, but that it was also caused by his psychological reaction to his situation, in particular to the 2010 assault and management by police of that matter. Mr Dooley considered that the left ankle sprain/roll suffered by Mr Smith while recovering from his 2006 back surgery revealed pre-existing degenerative changes and was of minor relevance in contributing to the current condition of his left ankle.
[79] Report of Michael Dooley dated 6 July 2022, 2.
[80] Ibid.
Findings and reasons
58I found Mr Smith to be a straightforward witness. He insisted that he returned to work the day after the transport accident in 1999, and that although he did suffer some injury to the back during that accident, his back condition worsened in the context of his heavy work duties in Mansfield, leading to the need for surgery in 2006. Whilst conceding that the assault he suffered in 2010 led to psychological problems, he insisted that his back problems (and related left ankle problem) were also a cause of his inability to work after 2013 and required further surgery in 2015 and 2020.
59I am satisfied that the plaintiff had pre-existing asymptomatic degenerative changes in the lumbar spine prior to 2001, that in the context of his work duties between 2001 and 2005 those changes became symptomatic, with complaints of low back pain from time to time, until in early 2006 he presented to Mr Malham with a four-month history of severe left-sided sciatica, associated with a “work-related problem with back, likely secondary to heavy gun-belt”,[81] and was diagnosed with an “extremely large” L5/S1 prolapse.[82] His treating doctor, Dr Holzer, also received a history of heavy and awkward lifting in early 2006.[83]
[81] PCB 174.
[82] Ibid 70.
[83] Ibid 154.
60Even Mr Dooley considered that Mr Smith may have suffered a small disc prolapse at L5/S1 in the transport accident which “likely … became much larger” in early 2006 and which may have been precipitated by chronic repetitive trauma”.[84] He also accepted that further aggravations of the back following the initial surgery, and occurring in the course of his employment, may have contributed to the later need for ankle fusion.
[84] DCB 303.
61This much larger prolapse required surgery in 2006 (as well as further surgery in 2015 and 2020). It is clear that the plaintiff rolled his ankle while recovering from his first back surgery, and that the ankle injury (which was a consequence of his back injury) led to surgery which was complicated by infection and septic arthritis. It is relevant that liability for the 2015 and 2020 surgery was accepted.[85]
[85] T 39.8-13.
62Whilst I acknowledge that some treating medical practitioners (Mr Malham, Dr Lewis, and Dr de Graaf) did not assess the causation of Mr Smith’s back problem, there was no need for them to do so, as they were primarily concerned with treating the injury with which he presented to them.
63I consider that the correct approach is to isolate the consequences attributable to the subject low back injury and the consequential left ankle injury and to determine the effect of these.[86] Mr Smith agreed that he suffered some limitation occasioned by the prior shoulder and neck injuries. On the evidence, I have had no difficulty disentangling these limitations from the impact of the back injury. I have also found no difficulty on the evidence in disentangling the psychiatric impairment from the sequelae of the back/ankle injury.
[86] Peak Engineering & Anor v McKenzie [2014] VSCA 67 [24]-[25]; Humphries v Poljak (1992) 2 VR 139,
140 (‘Humphries’).
64I consider that the low back injury and consequential left ankle injury are severely incapacitating in and of themselves.[87] The plaintiff has required a total of three serious surgeries to his lower back together with further procedures to repair the leak of CSF following the original microdiscectomy in 2006. He suffered a very substantial problem with his left ankle requiring arthrodesis, which has left him with extremely limited motion of the left ankle, and the potential that he will require a subtalar fusion.[88]
[87] Humphries (n 86); TAC v Katanas [2017] HCA 32 [25].
[88] PCB 189, 198.
65The pain and suffering consequences outlined above by the plaintiff were confirmed by his partner, Kate Kelly. I note that in spite of any neck/shoulder and psychiatric injuries, the plaintiff was able to play football as late as 2011. He is totally unable to undertake that activity at present due to his back and ankle limitations.
66Prior to the aggravation of his lumbar spine condition in the years leading to 2006, he was able to perform full policing duties.[89] Although he actually ceased work partly because of his psychiatric injuries, the medical evidence from Mr D’Urso,[90] Mr de la Harpe,[91] and Dr Ryan is to the effect that his back injuries alone would prevent him from returning to pre-injury duties.[92] This is also true of the consequential left ankle injury.[93]
[89] T 5.29-36.20.
[90] PCB 187.
[91] Ibid 143.
[92] Ibid 214.
[93] Ibid 197.
67Moreover, I consider on the evidence that due to his permanent back/left ankle impairment the plaintiff has either very substantial or complete incapacity for suitable employment. I note that Mr de la Harpe considered that the plaintiff is “permanently incapacitated for any return to gainful employment”.[94] Mr D’Urso considered that, at best, the plaintiff permanently “may have some capacity to perform light part-time employment within restrictions” for a maximum of 20 hours per week.[95] Given that the plaintiff has not worked other than as a policeman since 1994, I consider that the work related back injury (and consequential left ankle injury) is a cause of his permanent incapacity for suitable employment.
[94] Ibid 134.
[95] Ibid 188.
68It follows from the above that I am satisfied that the plaintiff meets the narrative test for serious injury in relation to the pain and suffering and loss of earning capacity consequences of the permanent impairment of his lumbar spine taken together with the impairment of his left ankle.
Conclusion
69Leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of the injury to the back/left ankle suffered during the course of employment with the defendant.
70I reserve the question of costs.
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