Smits v Victorian WorkCover Authority
[2021] VCC 1818
•18 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05814
| WILLIAM SMITS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 September 2021 | |
DATE OF JUDGMENT: | 18 November 2021 | |
CASE MAY BE CITED AS: | Smits v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1818 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of pain and suffering only – reliance upon paragraph (a) of the definition – injury to the low back – surgical intervention – extent of recovery – other health problems – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Mr S Carson | Arnold Thomas and Becker |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
(a)General background
1This matter comes before me by way of an application pursuant to both s134AB of the Accident Compensation Act 1985 and/or s328 of the Workplace Injury Rehabilitation and Compensation Act 2013. No point of any significance hinges upon the question of which Act applies but, as the two principal incidents of injury suffered by the plaintiff occurred whilst the Accident Compensation Act was applicable, I shall treat it as being the operative legislation and henceforth refer to it as “the Act”. I appreciate that the relevant employment carried on into the period when the Workplace Injury Rehabilitation and Compensation Act was operating.
2In bringing his application, the plaintiff relies upon paragraph (a) of the definition of “serious injury”. He is seeking leave to bring proceedings in respect of damages for pain and suffering only. I would refer to Transcript (hereinafter referred to as “T”) 2.
3The plaintiff relies upon two specific incidents and upon the course of employment. The plaintiff commenced the relevant employment in 1990. Whilst it may be that, at the time, his employer was known as Lloyd Helicopters, at some stage the title of the employer became CHC Helicopters. In subsequent correspondence in 2018, that entity acknowledged the plaintiff’s continuous service and contribution since 1996. Nothing of any great magnitude hinges upon the title of the employer, but it shall hereinafter be referred to as “CHC”. The plaintiff’s occupation was that of an aircrewman with Air Ambulance. He had previously worked in the Royal Australian Navy and with the National Safety Council of Australia, in each such employment being involved with search and rescue operations and the like. His duties included attending at traumatic situations and winching people from the ground up to and into a helicopter.
4On 31 December 2002, whilst trying to use the winch, he fell heavily in the helicopter and suffered significant lower back pain and pain in the legs. This shall hereinafter be referred to as “the first incident”. As shall be discussed, he subsequently underwent lumbar fusion surgery. Following that, he returned to work, initially on light duties, but progressing to full duties by January 2005.
5On 5 October 2012, the plaintiff suffered a fall in which, according to histories taken, he landed heavily on his buttocks when stepping backwards out of a helicopter. This shall be hereinafter referred to as “the second incident”. He suffered an increase of symptoms.
6In 2014, he was transferred from Air Ambulance duties, but continued work performing oil and gas field transportation. He ultimately ceased work on 13 April 2019.
7There is no dispute concerning the occurrence of the incidents. A complicating factor is the presence of mental health problems which, as I understand it, are the subject of a separate claim. However, they retain some relevance to this application.
8Mr T Monti QC with Mr S Carson of counsel appeared on behalf of the plaintiff. Mr C Miles of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(b)The Plaintiff’s background, education and employment prior to his employment with CHC
9The plaintiff is aged 63 years, he having been born in 1958. He was educated to Year 10 level and subsequently obtained no qualifications other than those related to his helicopter and rescue work. When a teenager, he enlisted in the Royal Australian Navy. He was initially a search and rescue diver and eventually became a crew chief on helicopters. He left the Navy in 1981 and continued his work as a helicopter crew chief with the National Safety Council of Australia. When that entity effectively came to an end in 1989, he started work with CHC and was again employed as an aircrewman on a full-time and permanent basis. CHC had a contract with Air Ambulance Victoria and the plaintiff performed duties similar to those in which he had previously been engaged.
(c)The Plaintiff as a witness
10I found the plaintiff to be a straightforward and reliable witness. I note that Associate Professor Miron Goldwasser, orthopaedic surgeon, who examined the plaintiff at the request of the defendant, described him as friendly and co-operative. Dr John Webb, consultant neurologist, whose report was also put in evidence by the defendant, stated that the plaintiff was a pleasant, cooperative man. When Mr Miles, counsel for the defendant, was making a brief opening of the case, no issue as to the plaintiff’s credit was foreshadowed. The same could be said of the closing address of Mr Miles, which concluded with the assertion that, whilst the plaintiff’s impairments are not trivial, they do not satisfy the statutory test.
11In summary, credit has not been an issue in this case and I find the plaintiff to be an honest and reliable witness.
(d)The State of the plaintiff’s health prior to the incidents
12Issues concerning the plaintiff’s mental health will be left to one side for the time being.
13It would appear that the plaintiff had some management of his spinal and skeletal health from the early 1990s, this being provided by Dr Joseph Krawec, chiropractor. Dr Krawec has reported that such treatment was on an irregular basis. This changed to treatment on a regular monthly basis following the first incident and the subsequent surgery.
14Professor Richard Bittar, who reviewed the plaintiff at the request of his solicitors on 12 July 2021, obtained a history that the plaintiff began experiencing back pain at work in mid-2002 after picking up a stretcher, but that his condition worsened following the first incident, this being described in some detail. Indeed, when discussing causation, Professor Bittar specifically stated that the injury which was suffered in the first incident remained a significant contributing factor to the plaintiff’s ongoing pain, disability and requirement for treatment.
15I am quite satisfied that any back symptoms which the plaintiff had prior to the first incident were quite minor.
(e)The Injury, its treatment, diagnosis and prognosis
16As stated, the first incident occurred on 31 December 2002. It is apparent that the plaintiff shortly thereafter saw a general practitioner, Dr Richard Cristofaro, who in turn referred him to Dr Graeme Brazenor, neurosurgeon. Much of the following is contained in Dr Brazenor’s detailed report of 4 May 2021. Dr Brazenor’s assistant, Dr Dagley, saw the plaintiff on 10 February 2003. Dr Brazenor first saw the plaintiff on 14 February. It is noted that a history taken referred to the plaintiff suffering injuries in mid-2002 when picking up a stretcher and earlier in December 2002 when picking up a drug box. These occurrences preceded the first incident. The history also included a reference to the first incident, which Dr Brazenor described as having “completed the process”. It was described as occurring on 31 December 2002 when the plaintiff was trying to pull in a patient who was dangling from the winch cable outside the helicopter cabin.
17Radiology had been performed on 3 February 2003 and showed a lytic spondylolisthesis at L5-S1. Dr Brazenor diagnosed that the plaintiff was suffering from congenital defects in the pars interarticularis. This slipping had begun comparatively late in life and had been occasioned by the plaintiff’s work duties in the eight months prior to Mr Brazenor seeing him for the first time. The prospect of a one-level interbody lumbar fusion with instrumentation was discussed. Ultimately, the plaintiff decided to go ahead with this and surgery was performed on 22 April 2003. From this, the plaintiff made what Dr Brazenor described as a perfect recovery, occurring more promptly than normal because of the plaintiff’s impressive pre-operative fitness. He was certified as fit to return to office duties as at 1 September 2003. There were some difficulties in this regard and in fact the plaintiff returned to suitable employment on 20 January 2004.
18On 30 April 2004, Dr Brazenor certified that the plaintiff could do a fitness test in relation to aircrew activities after a further three months. By this time, the plaintiff was undertaking a lot of swimming and walking, and x-rays showed that the fusion was firmly in place at the L5-S1 level.
19There were further delays in the plaintiff returning to full duties. On 25 November 2004, Dr Brazenor wrote a letter certifying that the plaintiff was fully fit to undertake a fitness test in a gymnasium and swimming pool and to undertake helicopter underwater escape training.
20The plaintiff returned for a review by Dr Brazenor on 6 February 2006, by which time he was back performing full crewing duties in helicopters and had been so doing for over a year. He was pain-free most of the time, but after a long 12-hour shift he noticed numbing pain in the sacroiliac region bilaterally and sometimes extending down the legs or into the abdomen. This was particularly brought upon by sitting in a bad seat in the helicopter or after working for long periods in cramped conditions.
21Dr Brazenor formed the impression that the plaintiff was experiencing pain from the next one or two levels above the fusion, but urged him to continue with self-management. Dr Brazenor thought that the plaintiff would “make it through another six years to get his 30 year long service in helicopters”.
22Dr Brazenor also noted that a CT scan on 7 May 2007 showed solid interbody fusion at L5-S1 with no complications, the only abnormality being early facet joint degenerative changes at L4-5. Concluding his report of 4 May 2021, Dr Brazenor stated that the plaintiff had not returned for a review since 2007.
23Dr Joseph Krawec, chiropractor, has treated the plaintiff for many years. In a report of 10 December 2019, he stated that, following the first incident and the plaintiff’s spinal surgery, he commenced seeing him on a regular monthly basis in order to maintain spinal structural health. Dr Krawec also had a history of the second incident, concerning which the plaintiff stated that he experienced severe spinal shock and severe local pain and discomfort in the lower lumbar region. As at the date of this report, Dr Krawec was still seeing the plaintiff on a regular monthly basis, adding that the plaintiff managed his pain by self-medicating with previously prescribed analgesics, namely Paracetamol and Diclofenac. Dr Krawec recommended that the plaintiff maintain a schedule of regular spinal treatment in order to prevent decreased mobility and ongoing increased lumbar pain.
24Mr Paul D’Urso, neurosurgeon, saw the plaintiff at the request of his solicitors on 12 February 2020. The materials with which he had been supplied included some from Dr Cristofaro, which material was in excess of 10 years old. It also included Dr Brazenor’s clinical file, which appears to have only covered developments up until 13 October 2004. Mr D’Urso took a detailed history, which included both the first and second incidents. He noted that the plaintiff said that he was suffering from low-grade back pain at 3.5/10, but with physical activity this could increase to 6.5/10. The plaintiff suffered intermittently from sciatic symptoms in both legs, radiating from the buttocks to the back of the knees, the right being worse than the left. Physical activity tended to aggravate symptoms. However, the plaintiff could sit comfortably for an hour and could walk without restriction. He was occasionally awoken at night because of symptoms. He could no longer perform physical activity without restriction in the way that he was once able to do.
25Mr D’Urso expressed the opinion that the lumbosacral fusion procedure appeared to have been technically successful and was sound. However, the second incident could well have caused disruption of the L4-5 intervertebral disc, adjacent to where the fusion had occurred. Mr D’Urso thought that up-to-date MRI imaging would be appropriate. In summary, he was of the view that the plaintiff suffered a workplace injury in the first incident and this precipitated the onset of back pain and sciatic symptoms, leading to the lumbar fusion. The second incident appeared to have aggravated the lumbar condition and possibly contributed to a further injury, which remained to be diagnosed. He described the plaintiff’s condition as having what would appear to be a mild effect on his social, domestic and recreational activities. The plaintiff did not have the capacity to perform unrestricted physical gardening or cleaning activity, or vigorous recreational or sporting activity.
26Further, Mr D’Urso stated that he would place restrictions on the plaintiff’s work capacity. He recommended that MRI imaging be performed so as to assess the plaintiff’s current status. In the meantime, the plaintiff should avoid repetitive bending, twisting and lifting activity. Mr D’Urso considered that the restrictions mentioned were likely to be of a permanent nature into the foreseeable future. In his concluding remarks, Mr D’Urso stated that, whilst the plaintiff’s condition appeared to have stabilised, contemporary imaging would be advisable.
27Mr D’Urso reported again on 1 September 2021. Whilst it would appear that he did not see the plaintiff again, he had been forwarded a report of an MRI scan of the plaintiff’s lumbar spine, such scan being dated 25 August 2021. He had also been able to access the images. Mr D’Urso expressed the opinion that the MRI scan of 25 August 2021 revealed a lateral L4-5 disc prolapse with some articular left L5 nerve root impingement. There was evidence of a degree of retrolisthesis at L4-5, with bilateral foraminal stenosis of the L4 nerve roots. The L5-S1 fusion without complications was noted. It would appear likely that the fusion at L5-S1 had contributed to a degree of degenerative progression, disc prolapse and foraminal stenosis noted at the L4-5 level.
28Commenting upon this, Mr D’Urso stated that the scan did reveal significant abnormality at the L4-5 level above the previous fusion. He thought that disc degeneration and a prolapse could well be causing a degree of back pain and sciatic symptoms, particularly in the left lower limb. The plaintiff was prone to a degree of degenerative progression of the L4-5 motion segment, which was likely to cause increasing symptoms with time. He was at risk of acute rupture of the disc, causing acute and severe neurological symptoms which could be difficult to determine and predict. The plaintiff was more likely than not to suffer further incapacity as a result of the original injury, which had necessitated the fusion. Should symptoms worsen, further surgical intervention could well be necessary. In that event, the preferred option of Mr D’Urso would be fusion at the L4-5 motion segment, should there be evidence of increasing symptoms related to the degenerative change that had developed.
29Professor Richard Bittar, neurosurgeon, had a Zoom meeting with the plaintiff on 12 July 2021. He took a history of some back pain in mid-2002, after the plaintiff picked up a stretcher, but referred to the worsening in and following the first incident. On that occasion, the plaintiff experienced an immediate onset of back pain radiating into both legs, and his symptoms progressively worsened thereafter. He also took a history of the second incident, when the plaintiff fell backwards while alighting from a helicopter. After several days off, he returned to work with ongoing back pain. The plaintiff was now complaining of constant lower back pain, which had a maximum severity of 7-8/10. This was exacerbated by bending, twisting, lifting, pushing or pulling, coughing, sneezing or straining. It worsened if the plaintiff sat for more than 15 minutes, stood for more than 10 minutes or walked for more than an hour. He also suffered from bilateral leg pain, the right leg being more severely affected than the left. This was an intermittent pain, dependent upon physical activity and typically lasted for approximately 30 minutes. The leg pain was less severe than his lower back pain and had similar exacerbating factors. The plaintiff was taking analgesic medications, including non-steroidal anti-inflammatory medications and paracetamol. He engaged in light exercise.
30Professor Bittar also took a history of the surgery performed by Dr Brazenor. At this time, there had been no imaging of the plaintiff’s spine since 2007. The diagnosis of Professor Bittar was the aggravation of spondylosis/spondylolisthesis and persistent pain following spinal surgery. He considered that the first incident remained a significant contributing factor to the plaintiff’s ongoing pain, disability and requirement for treatment. He referred to the possibility of further imaging of the lumbar spine and a review by a pain specialist and/or a neurosurgeon. Professor Bittar considered the prognosis to be poor, as the plaintiff had been significantly symptomatic for nearly 20 years and, irrespective of any further treatment, was most likely to continue to experience significant pain and disability in the long term. He had a partial incapacity for work, this being permanent. The plaintiff’s injury and symptoms were consistent with the mechanism of injury, subsequent spinal surgery and post-operative radiological changes. The identified restrictions which the plaintiff suffers are permanent.
31Professor Bittar reported for a second time on 10 September 2021. The purpose of this was to review the radiology report for the MRI scan of the lumbar spine performed on 25 August 2021. It would not appear that he saw the plaintiff again. He noted that the radiology report included comments relating to a paracentral and central disc protrusion at L4-5, with the radiologist suggesting that there may be some left-sided nerve root compression at that level, but not on the right side. There was a minor posterior disc bulge at L3-4 and facet joint change at L4-5.
32Professor Bittar considered those reported findings as being consistent with the plaintiff’s complaints of ongoing back pain and leg pain. The symptoms were most likely emanating from the L4-5 level and could be due to a combination of discogenic facet joint related pain and possibly also some nerve root irritation or compression. The findings were consistent with the plaintiff’s previous clinical presentation and with his previous injury and L5-S1 surgery.
33Professor Bittar considered that the findings were consistent with the development of symptomatic adjacent segment disease as a result of the L5-S1 fusion. Such findings suggested that there was a high chance that the plaintiff would require further spinal surgery in the form of an L4-5 fusion. Professor Bittar was of the view that the plaintiff had developed a significant disc prolapse and facet joint change at L4-5, the segment adjacent to the fused L5-S1 level.
34Given that these changes were not reported on previous imaging, apart from early facet joint degenerative changes, it was clear that the L4-5 level had deteriorated significantly over the past 14 years. This was highly consistent with adjacent segment disease due to additional stress placed on that level from the fusion at L5-S1. The problems at L4-5 were most likely related to the fusion at L5-S1 and could have been the cause of the further incapacity and pain that the plaintiff was experiencing.
35Whilst Associate Professor Miron Goldwasser examined the plaintiff at the request of the defendant on 18 June 2020, his subsequent report was also placed in evidence by the plaintiff. As recorded by Associate Professor Goldwasser, the plaintiff attributed the onset of his problems to the first incident. He described the surgery which he had undergone and his subsequent return to work. The plaintiff also described the second incident, when he fell approximately 1.5 metres from a helicopter, landing on his buttocks on the concrete helipad. There was a recurrence of severe pain in the same area as previously, but even more severe. Whilst some symptoms continued, the plaintiff learned to put up with the situation. This was the situation until his cessation of work due to Post-Traumatic Stress Disorder in early 2019.
36The plaintiff described constant pain, often low grade and in the range of 1/10 to 2/10, and constant pain in the lower back and buttocks of 2/10, but this could worsen to 7/10 or 8/10. He also complained of a moderate amount of pain intermittently in both buttocks, radiating from the back of his thighs to his knees. He stated that his sleep is often interrupted, and he changes position frequently. He takes medication to help him sleep. He takes over-the-counter medication for his symptoms, namely Nurofen and Panadol, averaging about 40 to 50 tablets per month, and averages about 20 tablets of Voltaren a month, which he takes when necessary. The plaintiff can look after himself personally and domestically, but has to pace himself. He is slower performing tasks such as gardening and lawnmowing, and splits such duties into several segments which he can manage. There has also been interference with his sexual activities and he believed that this was a factor in relation to the failure of his first marriage.
37Associate Professor Goldwasser did not have the benefit of any up-to-date radiology. He considered the injury suffered by the plaintiff to be consistent with the history given. He was of the view that the condition was unlikely to change substantially in the next year, with or without medical treatment. I should add that parts of Associate Professor Goldwasser’s report are clearly to be seen in the context of a Whole Person Impairment Assessment, which he was prepared to make in relation to the spine, and particularly the lumbosacral region. He did not feel that any apportionment was required. Whilst some different considerations apply, I note that he did make an assessment of permanent impairment at the level of 20 per cent.
38The defendant has had the plaintiff examined by practitioners in addition to Associate Professor Goldwasser. An early report put in evidence by it is that of Dr John Webb, consultant rheumatologist. The report is dated 10 April 2003, the date upon which Dr Webb saw the plaintiff. The history included that the plaintiff held a licence as a helicopter co-pilot, but was also trained in some medical aspects enabling him to help as a paramedic. Dr Webb took a detailed description of the first incident, including that, at the time, the plaintiff felt a severe sensation in his low back as if a red hot poker had been thrust into it. The plaintiff had a past history of seeing a chiropractor from time to time over the years. He had also had two incidents of considerably less severity during 2002, each time seeing a chiropractor with beneficial results.
39The plaintiff also gave details of his treatment by Mr Brazenor. At this time, the fusion had been mooted, but not performed. The diagnosis of Dr Webb was that the plaintiff was suffering from spondylolisthesis at the lumbosacral junction. His employment was a significant contributing factor to his problem. The first incident had exacerbated the condition and led to significant worsening and the production of pain, which had been ongoing. At the time, he did not have a capacity to undertake his pre-injury employment and Dr Webb thought that the surgery should be authorised immediately. The injury at work had caused the plaintiff’s problem to become severe, as it then was.
40Mr Daryl Nye, neurosurgeon, examined the plaintiff at the request of the defendant on 15 November 2004, reporting on the same day. Mr Nye took an appropriate history, particularly of the first incident. He was also aware of the spinal fusion surgery. Since the surgery, the plaintiff had undertaken walking and, subsequently, swimming. He had also been attending a gymnasium. The surgery had resulted in significant relief of back pain. The plaintiff took a modest strength analgesic when he did suffer the occasional low back discomfort or pain. Mr Nye noted a lengthy scar in the midline and in the lumbosacral region and a mild loss of the normal lumbar lordosis. A full range of thoracolumbar movement was demonstrated and executed in a pain-free manner. The radiology showed appearances of a very satisfactory and sound stabilisation situation.
41Mr Nye thought that the work incident had resulted in aggravation and the precipitation of symptoms, the plaintiff suffering from a pre-existing and predisposing condition, namely a Grade 1 spondylolisthesis secondary to bilateral L5 pars defect and with associated disc degeneration. The condition had responded extremely well to appropriate treatment, with the resulting sound fusion in satisfactory position. Mr Nye thought that the plaintiff would be fit to return to pre-injury duties, providing that the requirements of a physical assessment were satisfactorily fulfilled.
42Mr Kevin Siu, neurosurgeon, saw the plaintiff at the request of the defendant on 16 November 2020. Mr Siu took an appropriate history of the first incident. He also took a history of the second incident. In 2014, the plaintiff’s boss noticed that he was not functioning too well. From 2014 to 2018, he had a very light job, mainly keeping fit and being on standby. Currently, the plaintiff was doing things at his own pace and had background back pain, but no major impairment.
43On examination, Mr Siu could find no abnormalities. He observed that presently the plaintiff was not working due to a Complex Post-Traumatic Stress Disorder. He could detect no presence of any functional component or psychological reaction to the plaintiff’s physical condition. If the plaintiff was to return to physical work, he would have to avoid repetitive bending. Otherwise, Mr Siu could find no impairment or restriction.
44Mr Siu had a teleconference “examination” of the plaintiff, reporting to the defendant’s solicitors on 1 September 2021. Effectively, the same history of events, including the two incidents, was taken. Leaving to one side his mental health problems, the plaintiff said that he still had low back pain, but managed this with a regime that he had worked out for himself and which included considerable walking. He was taking Panadol and Nurofen when necessary. He exercised significant caution when doing such things as gardening. When his pain was bad, he self-prescribed with increasing doses of Panadol and other over-the-counter medications. In relation to the radiologist’s report of 25 August 2021, there was lumbar spondylosis at L4-5, but no compression of the L5 nerve root, and the S1 nerve root also appeared clear. Mr Siu described the plaintiff’s present condition, stating that he was having ongoing lumbar spondylosis, but managing very well with limitation of activities. Mr Siu thought that the plaintiff should not lift more than 10 kilograms and should be careful when shopping with his wife that he does not lift or twist. He should avoid heavy exertion. The plaintiff was no longer engaging in contact sports. His sexual activity was limited, with the possibility of aggravating his back pain. No functional component or psychological reaction to the physical condition was detected.
45The injury suffered by the plaintiff in the first incident seems to be comparatively clear. I accept that he suffered a lytic spondylolisthesis in the lumbosacral junction, causing nerve root compression. I accept that the first incident precipitated the onset of back pain and sciatic symptoms and that this led to lumbar fusion being performed. This is essentially the diagnosis of the operating surgeon, Mr Brazenor. It is an opinion that is echoed by Mr D’Urso, also a neurosurgeon. It is consistent with the opinion of Professor Bittar, a practising neurosurgeon. He diagnosed aggravation of lumbar spondylosis/spondylolisthesis and persistent pain following spinal surgery. It is also similar to the diagnosis of Mr Nye, neurosurgeon, who formed the view the plaintiff had suffered the aggravation of a Grade 1 spondylolisthesis, secondary to bilateral L5 pars defect, with associated disc degeneration. Indeed, the opinions of Associate Professor Goldwasser and Mr Nye are of similar nature insofar as the plaintiff’s condition and symptomology at the time of the surgery is concerned.
46I am also satisfied that the first incident has contributed, and continues to contribute, to the symptoms and disabilities of which the plaintiff complains. That is in addition to the contribution of the second incident. Having viewed the MRI scan of 25 August 2021, Mr D’Urso, who had taken a history of the second incident and had in essence suggested that there be up‑to‑date radiology, expressed the opinion that such radiology revealed a lateral L4/5 disc prolapse with some subarticular left L5 nerve root impingement and bilateral foraminal stenosis of the L4 nerve roots. He stated that it would appear likely that the fusion at L5/S1 had contributed to a degree of degenerative progression, disc prolapse and foraminal stenosis noted at the L4/5 level. Professor Bittar took a history of the second incident. He also examined the reports of the recent MRI. Professor Bittar made no comment upon the particular relevance of the second incident, but stated that the findings on the most recent MRI were consistent with the plaintiff’s clinical presentation and with his previous injury and surgery. Associate Professor Goldwasser, examining on behalf of the defendant, obtained a history of a flare‑up of symptoms following the second incident. He made no specific comment in relation to it. Mr Siu, examining on behalf of the defendant, took a history of the plaintiff suffering a recurrence of severe back pain in the second incident. The plaintiff has described it in some detail to medical examiners and has referred to increased symptoms thereafter. I accept that. I also accept the observations of Mr D’Urso in relation to the second incident having aggravated the plaintiff’s symptoms and as to what was found upon the MRI of 25 August 2021.
47Whilst the plaintiff had felt occasional twinges of back pain prior to the first incident, I am of the opinion that his pain and suffering emanates from the first incident, with some aggravating role played by the second incident. Whilst there may have been some pre-existing radiological changes, I am satisfied that they were largely, if not almost entirely, asymptomatic prior to the first incident. It is that first incident which produced symptoms of sufficient severity to warrant surgical intervention in April 2003 and the ongoing pain and restrictions suffered by the plaintiff. The second incident was the cause of increased symptomology.
48In short, I accept the diagnoses set out in paragraphs 45 and 46 above. I also accept that the second incident resulted in an aggravation of the symptoms which originated in the first incident.
49I am also of the view that the consequences of the injury are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Mr D’Urso expressed the opinion that the plaintiff’s restrictions in relation to employment and social, domestic and recreational activities are likely to be of a long-term permanent nature. Professor Bittar referred to the plaintiff’s prognosis as being poor, stating that he is most likely to continue to experience significant pain and disability in the long-term. His partial incapacity for work is permanent. Indeed, he stated that the plaintiff’s identified restrictions are permanent. I accept these opinions. I am satisfied that the consequences of the injuries suffered by the plaintiff are permanent within the meaning of the Act in that they will persist for the foreseeable future.
50Any consequences of a psychological or psychiatric nature shall not be taken into account. I appreciate that the plaintiff may have considerable problems of this nature associated with a Post-Traumatic Stress Disorder. However, it is not asserted that this condition is associated with his back injury, surgery and the like. I note that Mr Siu, examining on behalf of the defendant, was specifically asked as to whether he detected the presence of any functional component or psychological reaction to the plaintiff’s physical condition. His answer was simply “No”. Indeed, it was an answer which he gave in his initial report of 18 November 2020 and repeated in his report of 1 September 2021. Any consequences of the relevant physical injuries which are of a psychiatric or psychological nature shall not be taken into account, but it does not seem to me that there are any of significance.
51Insofar as the incidents resulted in the aggravation of a pre-existing condition, I accept that the plaintiff had been largely free of symptoms prior to the first incident. There had been a couple of earlier episodes of back pain which, in any event, seem to have occurred in the course of the plaintiff’s employment with CHC. Further, I note that the plaintiff had been having irregular chiropractic treatment since the early 1990s, by which time he was already employed by CHC. However, he had been largely symptom-free until the first incident, which was the immediate precipitating cause of the need for surgery. The second incident then caused further aggravation of the plaintiff’s condition.
(f)Other developments since the injury
52The plaintiff worked on with CHC until ceasing on 13 April 2019. His cessation of work appears to have been related to his Post Traumatic Stress Disorder and not to his back condition. He has not worked since. I note that the history taken by Professor Bittar was that, at the time that the plaintiff ceased work due to other factors, he was working full-time, but without any prolonged sitting and no heavy lifting, and minimal twisting. It would appear from the history taken by Mr Siu that, between 2014 and 2018, the plaintiff had a lighter job, but whether that was because of his physical injury or his Post-Traumatic Stress Disorder is not entirely clear. However, a letter from CHC, such letter being dated 20 January 2018, contains some relevant material. The letter, which was effectively a renewal of the plaintiff’s contract, contained the following appendix:
“CHC acknowledges your continuous service and contribution since 1996. CHC is also aware of the incident in 2002 resulting in a significant back injury. This resulted in agreed to restriction by the then Aircrew Manager that if engaged in SAR operations, CHC will take all reasonable steps to put in place a healthcare management plan so that exposure to the task of winch rescue operations will be eliminated in accordance with ongoing health maintenance. CHC is committed to maintaining this healthcare management”.
However, apparently because of a change of personnel, allegedly this agreement was not in fact honoured.
53Of course, the plaintiff is not seeking certification in respect of loss of earning capacity in the present application, but the relevance of the above letter is that it would seem to substantiate the proposition that, by agreement, the plaintiff had been engaging in modified work duties and that this had been, at least in part, related to the back injury.
54Perhaps the only other development of interest is that the plaintiff has in recent times moved to Buderim in Queensland and currently resides there. Technically he is still an employee of CHC, but, as stated, has not actually worked since 13 April 2019.
(g)Ruling
55I am satisfied that the plaintiff has discharged the burden of proof in relation to pain and suffering. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
56In his affidavit of 18 May 2020, the plaintiff has sworn that he has struggled with lower back pain ever since resuming full-time operational duties on 10 January 2005. He has sworn that his back pain had worsened considerably since the second incident of injury on 5 October 2012. He has at least some lower back pain that is present at all times, and it is only ever a question of how strong that back pain will be. In his affidavit of 18 August 2021, he has sworn that he has continued to suffer from very significant pain in his lower back and it is something that he experiences at all times. Constant pain is one of the indicia of serious injury which has long been accepted by the Court of Appeal as being of importance.
57Physical fitness was an important, if not essential, ingredient of the plaintiff’s normal working duties. The sporting activities and the like in which he participated were pursuits which gave him enjoyment, in addition to helping him maintain the level of fitness necessary for involvement in his particular occupation. Prior to the first incident, he participated in cross-country skiing some three to four times per year, frequently with workmates. He took part in water skiing. After the first incident he no longer participated in these activities. He has also had to cease horse-riding. He ceased riding his mountain bike on downhill trails and participating in contact sports. Prior to the first incident, for approximately 15 years he engaged in what is called Australian Action Taekwondo. Ultimately he gained a brown belt. Apparently this is a level of achievement which is quite difficult to obtain. He was unable to take part in any of these activities after the first incident. I would refer generally to T31‑2 and T42 and following pages. In summary, physical fitness and activities based upon it played a major and enjoyable role in the plaintiff’s life, and this has all been removed from him.
58The plaintiff effectively manages his own medication regime. He takes one packet of Nurofen or Panadol per fortnight. If he has to engage in something of a physical nature, he takes Panadeine Forte. He has received very regular chiropractic treatment. On a daily basis, he lies flat on the floor with a pillow under his knees and also has a lie down in the afternoon. Again, I would refer to T38 and following pages. In addition to his back pain, he is immobilised by leg pain once or twice a week.
59Various other aspects of everyday life can also be productive of pain, sometimes very sharp. Such pain can be triggered by sudden movements, coughing, sneezing and the like. Sitting brings on increasing pain after approximately 15 minutes, while standing will have the same effect after approximately 20 minutes. The plaintiff helps out only with light housework, and when he does so, he guards his back. Lifting usually flares up his back pain significantly.
60The plaintiff has also complained to medical examiners about interference with his sleep. For example, he told Associate Professor Goldwasser, examining on behalf of the defendant, that his sleep is often interrupted and he changes position frequently. Professor Bittar recorded a history of some sleep disruption and daytime tiredness, in addition to an impairment of sexual activity. These can all be matters of significance.
61It is also to be remembered that, for by far the greater part of his working life prior to injury, the plaintiff had for years engaged in key aspects of important and demanding rescue work. The injury suffered by him effectively put him on modified duties and unable to engage fully in the type of work which he had been previously performing.
(a) As stated one particular aspect of physical fitness and recreation in which the plaintiff engaged prior to suffering injury was martial arts. Depending on his rostering, he trained two to three times a week in what is called Australian Action Taekwondo and had been doing this for some 15 years prior to the first incident. It was his main form of fitness activity and his primary or main hobby that he performed outside of the workplace. He was advised by Mr Brazenor after his surgery not to participate in any full body contact sports.
62In conclusion, when all of the above is taken into account, it seems to me that the plaintiff has discharged the burden of proof and is entitled to leave to bring proceedings in respect of pain and suffering damages.
(h)Conclusion
63The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings in respect of pain and suffering damages. I shall hear the parties as to any further orders that are required.
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