Sumner v Victorian WorkCover Authority
[2022] VCC 402
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-21-03755
| MICHAEL JOHN SUMNER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 March 2022 | |
DATE OF JUDGMENT: | 31 March 2022 | |
CASE MAY BE CITED AS: | Sumner v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 402 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury – injury to the lower back – pain and suffering damages – whether the plaintiff has satisfied the threshold test for serious injury in respect of pain and suffering damages – credit of the plaintiff – whether the claimed consequences are a result of an injury at work
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to the plaintiff to bring proceedings to recover pain and suffering damages for injury to his low back as a result of the accident which occurred on 31 December 2018 in the course of his employment with the employer.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I McDonald QC with Mr A Macaskill | Henry Carus & Associates |
| For the Defendant | Ms M Cameron | Wisewould Mahony |
HIS HONOUR:
1The plaintiff brings an application by way of Originating Motion dated 1 September 2021. The plaintiff applies for leave pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) in respect of an injury to his lower back which occurred on 20 December 2016 (“the first incident”) and 31 December 2018 (“the second incident”) or in the course of his employment with the defendant company, known as Swan Street Auctions and Sales. The plaintiff’s period of employment with Swan Street Auctions and Sales was from June 2016 to 19 March 2020, when the plaintiff’s employment was terminated.[1]
[1]DCB 8
2This application requires the plaintiff to satisfy the test set out in s325 of the WIRC Act.
3The plaintiff seeks leave to bring proceedings for pain and suffering damages in respect of an injury to his lower back arising out of or in the course of his employment. The Court is required to determine the consequences of the injury to the plaintiff’s lower back before leave can be granted. In this case, one of the issues is whether or not the consequences complained of by the plaintiff are a result of an injury arising out of or in the course of his employment.
4Mr McDonald QC, counsel for the plaintiff, stated that the claim for serious injury was under paragraph (a), as in a physical injury to the plaintiff’s lower back.
5The following evidence was adduced in the course of the hearing:
· The plaintiff gave evidence and was cross-examined.
· The plaintiff tendered the following documents:
§Exhibit A, the Plaintiff’s Court Book (“PCB”) pages 3 to 104 and pages 110 to 134 inclusive.
· The defendant tendered the following documents:
§Exhibit 1, the Defendant’s Court Book (“DCB”) pages 3 to 19 and pages 26 to 56 inclusive.
§Exhibit 2, My Doctors Clinic, Surfers Paradise, patient health summary and clinical notes for the plaintiff.
§Exhibit 3, five videos: two videos on 22 February 2021 and three videos on 2 May 2021.
§Exhibit 4, social media photographs and messages between the period of 22 February 2021 and 17 May 2021.
6Ms Cameron, counsel for the defendant, identified the following issues in this application:
(a) the plaintiff is unable to aggregate the injuries received in the falls of 2016 or 2018 or the injury in the course of the employment by manual handling. The plaintiff must identify which event caused the injury;
(b) the plaintiff’s credibility is in issue;
(c) any injury to the plaintiff’s back caused during his employment with the defendant employer is now resolved; and
(d) the case was a “range case”, in the sense that the plaintiff has to establish that the consequences are “at least very considerable”.
7The plaintiff’s credibility was challenged in the course of the hearing. Whilst the plaintiff did not impress me as a person who was forthcoming and entirely frank about his physical condition and the circumstances of his life, I accept that he is reasonably accurate in his description of his limitations and the consequences of the injury to his lower back. It was clear after the plaintiff was cross-examined that he was “getting out and about” more than he was prepared to state to the Court.
The Statutory Scheme
8The application is brought under the definition of “serious injury” contained in s325(1) of the WIRC Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of body function”.
9The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 1 July 2014;[2]
(b) the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
(c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) subsection 2(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being “more than ‘significant’ or ‘marked’”, and as being “at least very considerable”;
(e) subsection 2(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) in conformity with Barwon Spinners,[4] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss2(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[2] See s1 of the WIRC Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3] Barwon Spinners (ibid) at paragraph [33]
[4] ibid
10I am required to give detailed reasons which are as extensive and complete as the Court would give in the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by this application.
The Plaintiff’s background
11The plaintiff was born in 1987 and is now thirty-four years old. The plaintiff’s parents separated when he was young. He completed his education in the United States to Year 12 level.[5]
[5]PCB 10
12After he completed secondary school, the plaintiff returned to Australia to live with his father. He worked in the hospitality industry and operated a small DJ business on the Gold Coast. The plaintiff met his wife, who had a one-year-old daughter from a previous relationship. They have a son of the relationship, born in 2018. The plaintiff decided to leave the hospitality industry, as it did not fit in with a suitable family life.[6] The plaintiff completed TAFE courses in warehousing and traffic management.
[6]PCB 10
13In 2016, he commenced employment with Swan Street Auctions and Sales, a furniture wholesale and retail business. He worked full time at that place of employment until he was retrenched on 19 March 2020. The plaintiff separated from his wife. He moved back to the Gold Coast on about 3 March 2020.[7] At that time, he had sole custody of his son.[8]
[7] T 7 and 8
[8]PCB 9
14The plaintiff originally lived with his father on the Gold Coast. The plaintiff’s plan was to work in his father’s business in an IT‑related role.
15In November 2021, the plaintiff and his father had an irreconcilable breakdown. The plaintiff then moved to live in an apartment on his own with his son. His son is now four years of age. The plaintiff has not worked since he ceased his employment with Swan Street Auctions and Sales. The plaintiff’s evidence was that he currently is in receipt of Centrelink benefits and spends his days and time looking after his son.
Injury with the Defendant employer
16The plaintiff was employed by Swan Street Auctions and Sales between June 2016 and 19 March 2020. His role at that place of employment was as a storeperson and in despatch and sales activities.
17On his behalf, Mr McDonald QC stated that the plaintiff had three separate causes of action that he would rely upon. The first cause of action was manual handling in the course of his employment, which included the whole period of employment. The second cause of action was an incident which occurred on 20 December 2016.
18The plaintiff described “the first incident”, which occurred on 20 December 2016 in the following terms:
“I was working on a container that had been loaded onto the back of a truck. I fell from the back of this container whilst unloading various products.
I began to experience symptoms of back pain and referred pain into my right leg following the first incident. I consulted a chiropractor, underwent dry needling and was able to continue working.”[9]
[9]PCB 11
19The plaintiff further described “the second incident”, which occurred on 31 December 2018, in the following terms:
“... I was picking and packing online orders.
The second incident occurred on a Monday during the Christmas/New Years [sic] period. Mondays were our busiest day of the week due to the online orders received over the weekend. We were required to complete 3 times as much work compared to the rest of the week. We were required to pick and pack up to 50 orders on most Mondays. I was often required to work quickly so that I could cover staff taking their lunch breaks on the retail floor.
...
I was carrying two cast iron table bases down a set of stairs located in the warehouse when I slipped and fell. I landed on my tailbone. The area at the top of the stairs was dark as management constantly turned off the lights. The steps were old and I recall that there was black and yellow tape on the bottom stairs but not on the bottom steps, except maybe the last few steps.
I immediately experienced a significant onset of pain following the second incident. This pain was more severe compared to any back pain that I had previously experienced.”[10]
[10] PCB 11 and 12
20I find, on the balance of probabilities, that the second incident which occurred on 31 December 2018, is the relevant incident in respect of the application in this case. The plaintiff, when asked during the course of his evidence in this proceeding about which injury he was referring to, immediately responded “2018”. The preponderance of the medical treatment has all followed upon the incident which occurred on 31 December 2018.
21I accept that any back injury that the plaintiff has suffered at his place of work occurred on 31 December 2018, which has consequences until the present time.
Medical treatment
22It is not clear from the medical evidence in this case, or the affidavit of the plaintiff, precisely what immediate medical treatment he received as a result of the injury on 31 December 2018. In his first affidavit, dated 22 April 2021, the plaintiff states that he initially consulted a physiotherapist on 22 January 2019 for his difficulties, including walking with a limp.[11]
[11]PCB 12
23The plaintiff’s affidavit then immediately goes on to his referral to Mr Michael Johnson, orthopaedic surgeon.
24There is a medical report from Dr Richard Smith, general practitioner, dated 25 January 2019 that was tendered on behalf of the plaintiff.[12] Dr Smith does not descend to the treatment or consultations he had with the plaintiff immediately after the time of the accident. It is clear that the plaintiff had seen Dr Richard Smith prior to 8 January 2019. The plaintiff had an MRI examination performed at Victoria House Medical Imaging.[13] Dr Smith was the referring doctor. The result of that MRI examination is as follows:
“1. Mild posterior central L4/5 disc protrusion and annular fissure produces a mild central canal stenosis and produces mild bilateral subarticular recess stenosis of the traversing L5 nerves.
2. Mild posterior central L3/4 disc protrusion and annular fissure causing mild thecal sac indentation.
3. No residual or recurrent L5/S1 disc protrusion.”[14]
[12]PCB 37
[13]PCB 33 and 34
[14]PCB 34
25In Dr Smith’s report dated 25 January 2019, he prescribed the plaintiff with Palexia, 100 milligrams per day. Dr Smith referred the plaintiff to Mr Michael Johnson, orthopaedic surgeon.[15]
[15]PCB 37
26Mr Michael Johnson examined the plaintiff and prepared a report dated 15 February 2019. Mr Johnson took a history of the plaintiff having previously injured his back in 2017. I suspect this was meant to be the incident of 2016. He also took a history from the plaintiff of the injury on 31 December 2018. Mr Johnson’s report noted the following:
“l reviewed a recent MRI scan. This demonstrates disc degeneration at the L3-4 and 14-5 levels, with posterior annular tears. At the L4-5 level, there is bilateral L5 lateral recess stenosis.
I have told Mr Sumner that in the absence of any leg symptoms, I do not think that this is a situation that would do well with surgical treatment.
His MRI scan shows evidence of disc abnormalities at 2 levels in the spine and theoretically if he were to follow a surgical path, both of these would need to be addressed.”[16]
[16]PCB 40
27Mr Johnson referred the plaintiff to Dr Stephen de Graaff, pain specialist, for conservative treatment.
28The plaintiff then attended upon Dr de Graaff on 5 March 2019.[17] The plaintiff attended under the supervision of Dr de Graaff at the Epworth Rehabilitation Centre. His treatment included physiotherapy and hydrotherapy, combined with a psychological program at the Epworth. Dr de Graaff noted that the plaintiff originally did the pain management program. Unfortunately, the follow-through did not occur. This observation was in the letter Dr de Graaf had written to Dr Richard Smith.[18] In Dr de Graaff’s opinion, the plaintiff required a further gym and pool program in order to ameliorate his symptoms.[19]
[17]PCB 41
[18]PCB 46
[19]PCB 46
29After the plaintiff moved back to the Gold Coast, he attended on a general practitioner, Dr Stephen Clapham, on 26 June 2020.[20] The plaintiff was then prescribed Palexia, 100 milligrams a day. He was also prescribed Valdoxan for anxiety. Dr Clapham ceased the Valdoxan medication, but the plaintiff continued on Palexia until June 2021.[21] The plaintiff’s evidence was that he ceased taking Palexia after he was in receipt of the report from Dr Navin, a medico-legal practitioner, for the defendant.[22] The reason for the plaintiff ceasing to take the medication Palexia was that Dr Navin expressed concern about the plaintiff becoming opiate-dependent. The plaintiff also complained of a “foggy brain” as a result of the medication.[23]
[20]PCB 48
[21]PCB 49
[22] T15
[23] T16
30The plaintiff has taken Voltaren tablets for pain since June 2021, and uses Voltaren Gel. He continues the walking exercises as recommended by the physiotherapist and does some stretching exercises. On occasion, he engages in hydrotherapy in the pool which is within his apartment building on the Gold Coast.[24]
[24] T12
31In summary, the plaintiff’s treatment is conservative treatment as recommended by his medical practitioners. In cross-examination, it became clear that the plaintiff had returned to his general practitioner more recently. He had sought a prescription for Palexia on 16 March 2021 after he had reactivated his back injury in an incident picking up his wallet from the floor.[25]
[25] T13
Medical opinions
Dr Stephen Clapham, general practitioner
32Dr Clapham prepared a report dated 28 December 2021. In that report, he stated that he had consulted with the plaintiff between 26 June 2020 and 24 May 2021. There was no further report from Dr Clapham after the attendance by the plaintiff in March 2022. Dr Clapham stated that:
“In Queensland he continued with physiotherapy and hydrotherapy and an exercise program.
During his time under my care he weaned off Palexia.
A further MRI was performed and a copy of this is attached.”[26]
[26]PCB 49
33Due to the effluxion of time between the last visit by the plaintiff on 24 May 2021, Dr Clapham was unable to comment on the current level of incapacity relevant for the plaintiff. Dr Clapham’s opinion was that the plaintiff would require to undergo physiotherapy, hydrotherapy, and an exercise and strengthening program.[27]
[27]PCB 49
34The report on the MRI scan performed at Gold Coast Radiology on 8 January 2021 concluded as follows:
“There are desiccated L2-3 and L3-4 discs with posterior annular fibrosis tear. At the L4-5 disc, there is a broad based disc protrusion seen associated with the annular fibrosis tear. It does compress the thecal sac and certainly compromise and impinge the L5 nerves but more severe on the right just as they exit from thecal at this level.
No other nerve compression can be seen. There is multilevel facet joint arthrosis.”[28]
[28]PCB 51 and 52
35The plaintiff has not been referred by his general practitioner to any further orthopaedic surgeons.
Mr Russell Miller, orthopaedic surgeon
36The plaintiff was examined by Mr Russell Miller for the purposes of this litigation. Mr Miller prepared two reports, dated 16 November 2020 and 7 October 2021. In his first report, Mr Miller diagnoses the plaintiff as follows:
“Lumbar Spine
There has been an injury to the lumbar spine, which includes musculo-ligamentous strain, aggravation of degenerative disease, and specific disc pathology at the L3/4 and L4/5 levels. There is no evidence of radiculopathy, neurological deficit, or structural injury.”[29]
[29]PCB 83
37Mr Miller then went on to state that the plaintiff has had an adverse mental state reaction to the development of his injury. In Mr Miller’s opinion, this required assessment by a psychiatrist, in particular to look at anxiety, depression, and the development of a chronic pain syndrome.[30]
[30]PCB 84
38In his second report, dated 7 October 2021, Mr Miller notes the plaintiff’s complaints in respect of his lower back, as follows:
“This continues to be his major problem with low back ache, discomfort and pain. It radiates into the buttocks and thighs, but not further down the legs. There is no numbness, tingling or weakness in the legs. He regards his symptoms as being ‘about the same’ as when he was last reviewed by me. The above symptoms cause sleep disturbance.”[31]
[31]PCB 90
39After examining the plaintiff and noting that the plaintiff was taking Voltaren and Panadeine Forte to contain his pain, Mr Miller remained of the same opinion expressed in his earlier report.
40In Mr Miller’s opinion, the plaintiff will require ongoing conservative treatment of pain management and rehabilitation.[32] Mr Miller states that it is possible the plaintiff may benefit from spinal surgery.[33] However, the plaintiff was not inclined to proceed down the surgical path.[34]
[32]PCB 94
[33] PCB 94
[34] PCB 94
Professor Peter Teddy, neurosurgeon
41The plaintiff was examined for the purposes of medico-legal reporting by Professor Peter Teddy. Professor Teddy prepared a report dated 4 November 2021. Professor Teddy, in his report, stated his opinion in the following terms:
“1. Injuries
2. Present condition
3. Aetiology of Michael’s current condition
These three questions are considered together.
Michael’s present condition is described in the History section above. He has both psychiatric and physical injuries. The psychiatric injury must be the subject of assessment by expert psychiatric opinion. His physical injuries comprise back pain with no substantial evidence of radiculopathy. His imaging demonstrates multilevel, mild facet arthropathy and (mild) degenerative changes noted at L3/4 and of the L4/5 disc. Although impingement on the L5 nerve roots is reported at the L4/5 level, this does not appear to be manifest clinically in the majority opinion of those who have been able to review him by direct physical examination. Views as to the precise nature of the physical injury by expert orthopaedic opinion, vary between the extremes of no substantial back injury such that the accidents were unlikely to have caused any such injury (Mr Dickinson) and mixed aetiology with specific disc pathology at L3/4 and L4/5 but no radiculopathy and a concomitant pain syndrome with anxiety and depression (Mr Miller).
Psychiatric reports describe (in common with almost every psychiatric report I have read in recent times) a combination of adjustment disorder with mixed anxiety and depression. These are variously described as being in association with his physical injury or as resulting from it.
On the balance of probabilities, one would describe his physical injury as being an exacerbation of a mild pre-existing lumbar spondylosis. The 2016 injury, although apparently symptomatic thereafter, was of relatively minor contribution and the 2018, somewhat more substantial. In an otherwise healthy 30+-year-old male, one would normally regard the circumstances of injury to be unlikely to produce the degree of incapacity professed in the absence of any clinically or radiologically substantive findings. Mr Sumner clearly had major domestic and psychological issues through 2019 and 2020, and to a large extent, these continue to the present time. There was also a bi-directional breakdown in his working relationships with colleagues and senior staff.
I believe that Mr Sumner’s injuries are probably a combination of soft tissue/musculoskeletal injury combined with an exacerbation of mild underlying lumbar spondylosis (facet arthropathy and L4/5 disc degeneration). As a result, he has back pain with no evidence of radiculopathy. He has a chronic pain syndrome, and he has psychological issues that compound the effects of injury. Whether his psychological state precipitated poorer outcome following a modest back injury, or whether his psychological state has resulted from an original, physical back injury must ultimately be decided by expert psychiatric opinion.”[35]
[35]PCB 103
42I find that Professor Teddy’s opinion in relation to the physical injury to the plaintiff’s back is that it is an aggravation of a pre-existing lumbar spondylosis which was more substantially affected by the 2018 accident. It is also clear that Professor Teddy is of the opinion that the plaintiff’s overall symptoms and condition is complicated by the psychological state or the Chronic Pain Syndrome, as he describes it.
Dr Clayton Thomas, rehabilitation and pain consultant
43The plaintiff was examined on behalf of the workers’ compensation insurer by Dr Clayton Thomas. He prepared a report dated 2 February 2021. In his report, Dr Thomas notes that he was not provided with the MRI imaging. At that stage, there were two MRI scans having been performed on the plaintiff’s back in 2019 and 2021.
44Dr Thomas stated as follows:
“Notwithstanding the absence of any imaging, noting that he predominantly has backache only, albeit right sided, it is likely that he is suffering from pain arising from the lower lumbar spine and one or other levels of the lower lumbar spine. This therefore having been present for over two years represents symptomatic spondylosis of his lumbar spine.
I would accept that the fall onto his bottom on steps has led to this condition. Without imaging, it is not possible to determine if this is an aggravation of a previous problem or not but in any case his current condition has remained.”[36]
[36]PCB 132
Associate Professor Damodaran, consultant psychiatrist
45The plaintiff was examined by Professor Damodaran for medico-legal purposes for and on behalf of the defendant insurer. Professor Damodaran prepared a report dated 25 November 2020. Professor Damodaran noted that the plaintiff had been receiving medications to assist with his depression. He noted that the plaintiff had not seen a psychiatrist. He took a history from the plaintiff of emotional difficulties in his developmental period, and also a family history of borderline personality disorder, which possibly suggests a significant biological vulnerability.[37] Professor Damodaran’s opinion was:
“Based on the available information and examination, I am of the opinion that Mr Sumner is suffering from adjustment disorder with mixed disturbance of emotion and conduct, which is currently in partial remission, along with chronic pain disorder associated with the general medical condition.”[38]
[37]PCB 124
[38]PCB 124
Dr Michael Epstein, psychiatrist
46Dr Michael Epstein examined the plaintiff for medico-legal reporting in this case. Dr Epstein prepared two reports, dated 6 October 2020 and 12 October 2021. In his first report, Dr Epstein expressed the following opinion:
“From a psychiatric point of view he has developed a chronic Adjustment Disorder with depressed mood as a consequence of chronic pain, discomfort and disability. His quality of life has diminished leading to the breakdown of the relationship with his wife, his inability to work on a continuing basis full-time and his inability to continue with his usual recreational activities.
In the absence of any significant improvement with regard to his back condition it is unlikely that his mental health symptoms will improve. His mental health condition alone does not prevent him returning to work.”[39]
[39]PCB 63
47In his later report, dated 12 October 2021, Dr Epstein stated:
“His mental state has been still contributed to by his chronic back pain but also by dealing with issues arising from having to find accommodation and having to find work and an income to support himself and his son.
He has a long history of issues with anger management that flared up again in October 2019 placing his then job in jeopardy, this appears to be a long-term character trait that is unrelated to the work injury.”[40]
[40] PCB 77
48Dr Epstein then noted that his diagnosis was that the plaintiff still suffered from a Chronic Adjustment Disorder with Depressed Mood as a consequence of chronic pain, discomfort and disability, and this has been added to by the recent breakdown of his relationship with his father and the difficulties relating to accommodation and employment. Dr Epstein noted that the plaintiff’s mental health condition alone does not prevent him from returning to work.[41]
[41]PCB 77
49I note here that the plaintiff is not seeking a serious injury certificate on the basis of mental health disorder. The two psychiatrists who have examined the plaintiff in this case do not say that the pain or Chronic Pain Syndrome is psychiatrically based. Both of those psychiatrists accept that it is physical pain emanating from the plaintiff’s low back that is causing him to suffer from the Chronic Adjustment Disorder with Depressed Mood. I note that both psychiatrists comment on the plaintiff’s difficult personality, which adds to the difficulty in their assessment of the plaintiff’s condition.
Dr Marcus Navin, occupational medicine physician
50The plaintiff was examined by Dr Navin for the purposes of medico-legal reporting on behalf of the defendant insurer. Dr Navin prepared a report dated 8 December 2020. In that report, he stated as follows:
“Mr Sumner presents as a person affected by opioid dependency with pain present at a high level upon wakening suggestive of opioid withdrawal. It is recognised that the use of opioid medication will act to increase pain at any other time. It may also impact negatively upon mood.
In the absence of any physical cause, apart from changes consistent with diffuse spinal discomfort, in the absence of any radiologically defined pathology in his spine, the ongoing use of opioids is not evidence-based. I posit that it may be harmful to Mr Sumner’s well-being. This aspect, and this report, can be provided to his current medical practitioner to facilitate with Mr Sumner’s care.”[42]
[42]DCB 14
51Dr Navin went on to state that he did not find any condition in the plaintiff’s spine that was causing his discomfort. He recommended that the plaintiff undertake diagnostic trials of a sacroiliac joint block, a lumbar triangle block, and a cluneal nerve block, which may improve his symptoms. I note that none of those procedures have been undertaken by the plaintiff.
52Dr Navin clearly is of the opinion that there is no radiological basis for any of the back symptoms complained of by the plaintiff.
Mr Ian Dickinson, orthopaedic surgeon
53The plaintiff has been examined by Mr Ian Dickinson for the purposes of medico-legal reporting. The reports were prepared for the defendant’s solicitors in this matter. The reports were dated 16 June 2021 and 23 March 2022. Mr Dickinson was able to examine the plaintiff in person for the purpose of his first report. His second report was prepared after an examination by way of Zoom. Mr Dickinson reviewed the radiographs in respect of the plaintiff. In particular, he noted the MRI scan which was performed on 7 January 2021. In Mr Dickinson’s opinion, the radiology did not show any nerve root compression. In Mr Dickinson’s opinion, there is no clinical or radiological evidence of any injury-related abnormality in the plaintiff.[43]
[43]DCB 36
54Mr Dickinson was specifically asked about any functional component in the presentation of the plaintiff. He stated as follows:
“There is a functional component. Mr Sumner presents with an appearance of indifference in relation to his complaints. There is no evident physical abnormality. Some of the physical findings described under ‘Examination’ are generally inconsistent and are not consistent with any significant injury.”[44]
[44]DCB 37
55In his more recent report dated 23 March 2022, which was based on a Zoom examination on 16 March 2022, Mr Dickinson stated as follows:
“Mr Sumner presents with a complaint of lumbar pain associated with right leg pain.
He has evidence of degenerative disease at L3/4 and L4/5 discs. He does not have any evidence of any cause for any neurological complaint or condition in the right leg.
Mr Sumner had complained of pain down the back of his right leg. This could occur as a result of a condition of the L5/S1 disc impinging on the S1 nerve root. It is noted that in Mr Sumner, there is no abnormality of the L5/S1 disc, and there is no impingement on the S1 nerve root. There is no impingement on any of the other nerve roots either.
There is no explanation for a complaint of ‘sciatica’ meaning pain of neurological origin in the leg.
Sometimes patients can have pain from other components of the lumbar structures such as apophyseal joints, disc annulus and other soft tissue structures and these will cause pain in a diffuse but not neurological pattern into the leg. These conditions are usually transient, and have not continued to apply in Mr Sumner. Mr Sumner’s lumbar pain can be explained on the basis of his degenerative disease in L3/4 and 4/5. His leg pain can only be explained as originating from one of these other structures described above.”[45]
[45]DCB 52 and 53
56Mr Dickinson repeated his view that the plaintiff demonstrated a functional component in his complaints.[46]
[46]DCB 54
Analysis
57On the preponderance of the medical evidence, I find that the plaintiff aggravated his underlying lumbar spondylosis in the incident on 31 December 2018.
58Dr Navin’s opinion was that the plaintiff was becoming opioid dependent. He also recommended certain procedures to be undertaken to either assist the plaintiff in his symptoms or, alternatively, eliminate the causes of his symptoms. None of those procedures have been undertaken. In that regard, I find that Dr Navin’s opinion has not been fully explored by him after such procedures could have been taken.
59In Mr Dickinson’s opinion, the plaintiff has no physical basis for his complaints. However, in his second report, he went on to give an explanation as to why the plaintiff may have a physical basis for his complaints and symptoms.
60It is clear from the reports of Mr Michael Johnson, Dr Stephen De Graaff and Professor Peter Teddy, that the plaintiff has aggravated an underlying lumbar spondylosis in the incident of 2018. Only Mr Miller, out of the medical practitioners, recommended surgery to the plaintiff’s lower back. All of the medical opinions recommend the continuation of pain-relieving medication, physiotherapy-directed exercises, and hydrotherapy to ameliorate the plaintiff’s low back symptoms.
61I find the plaintiff has aggravated his underlying lumbar spondylosis in the incident in December 2018.
Credibility of the Plaintiff
62I have previously referred to the comments made by the psychiatrists in respect of the plaintiff’s personality. He is an unusual person in his presentation. This does not mean that he was deliberately deceitful or not attempting to give an accurate description of his symptoms arising from his low back injury.
63Ms Cameron very skilfully cross-examined the plaintiff about his abilities to partake in tenpin bowling, mini golf, dancing, and attending concerts and a Burning Man party.
64The basis for all of that cross-examination was the subject of the documentation tendered in exhibits 3 and 4 in the proceeding. I accept that the plaintiff was and is able to engage in more social activity than he had disclosed in his two affidavits sworn in support of his application for serious injury in this case. I do not accept that his reluctance to disclose his full social activities in his affidavits amounts to a complete destruction of his credibility.
65The plaintiff has, in his evidence, stated that he went off Palexia “cold turkey”, as he described it, immediately after he received a report of, he thought, Dr Dickinson, though in fact it was Dr Navin. That piece of information is corroborated by the report of his general practitioner, Dr Clapham. Again, Ms Cameron skilfully cross-examined the plaintiff about his evidence that he was taking Palexia on a regular basis subsequent to June 2021. It was clear that the plaintiff did not have prescriptions for Palexia in that period. I accept, however, that the plaintiff has taken Voltaren and used Voltaren Gel to ameliorate his pain symptoms in the lower back. The plaintiff continues to engage in hydrotherapy and exercises that he had been shown by physiotherapists to deal with his back pain syndrome.
66In conclusion, I accept that the plaintiff, whilst not being fully frank about the extent of his social activities due to his low back pain, does nevertheless properly describe limitations and pain levels that he does suffer as a result of his back injury.
Consequences to the plaintiff of the back injury occurring on 31 December 2018
67The plaintiff swore two affidavits, dated 22 April 2021 and 16 March 2022, in support of his application for a serious injury certificate in this case. There was no supporting affidavit by his current girlfriend or his father.
Sleep
68In his first affidavit, the plaintiff stated that due to his ongoing pain, he has difficulty getting to sleep, and once asleep is often woken by pain.[47] He stated that as a result of being constantly tired, he is lethargic and irritable. In his second affidavit, the plaintiff confirms that his sleeping difficulties continue as a result of his low back pain.[48]
[47]PCB 13, paragraph 30
[48]PCB 21, paragraph 15
69I accept that in a young person aged thirty-four, as the plaintiff is, to have his sleep patterns interrupted to the extent of being woken up due to low back pain is a very considerable consequence.
Pain
70The plaintiff complains of effectively constant back pain, with occasions of greater pain occurring either with activity or for no particular reason. An example of that was his evidence when he said he bent down to pick up a wallet, and he had very severe pain that caused him to go to bed for three days. He then sought out his general practitioner to recommence the use of Palexia, a drug that he had previously weaned himself off due to his concern about opioid dependency.
71The plaintiff, in the latter part of 2021, had been taking Voltaren tablets and using Voltaren Gel to ameliorate his pain symptoms. He continues to do hydrotherapy in the pool at the apartments. He also does exercises in order to maintain the mobility of his back and to lessen the pain symptoms.
72The plaintiff was criticised because he does not seek medical attention from practitioners. The preponderance of the medical evidence in this case is that there is no surgery suitable for the plaintiff. The plaintiff’s medical advice has been to do just what he is doing: that is, taking medication for pain, and continuing with the exercises and hydrotherapy.
73I accept that the level of pain and the treatment that the plaintiff is receiving for his pain symptoms is at the lower end of the range of the possible injuries and symptoms of pain to be contemplated in the granting of a serious injury certificate. I accept, however, that in the plaintiff’s case, his complaints and experience of pain is, at least, a very considerable consequence for him.
Medication
74The plaintiff has previously been prescribed Palexia. He continued to use Palexia on a regular basis to ameliorate his pain symptoms until he read the report of Dr Navin. The plaintiff then ceased taking Palexia, and now takes Voltaren as a pain-relief medication. He also uses Voltaren Gel on his back to assist with his pain symptoms. In the more immediate past, the plaintiff has resumed taking Palexia after an incident of a sharp rise in pain resulting from bending over to pick up his wallet.
75I accept that the plaintiff has a need to take pain-relieving medication on a consistent and constant basis in order to manage his symptoms. I find that the necessity to ingest medications on a regular basis is a very considerable consequence, particularly taking into account the plaintiff’s age.
Lack of mobility and self-care
76The plaintiff has given evidence that due to his low back injury he has difficulty with self-care. I note that the plaintiff now lives on his own, together with his four-year-old son. His evidence was that his girlfriend does a lot of the heavier domestic duties such as washing et cetera. I do not accept that the plaintiff is so restricted in movement that he is unable to shower and toilet himself properly. I do accept that the plaintiff is unable to engage in any sports or climbing on play equipment with his son.
77I note here that the plaintiff was shown, for a very short period of time, bowling at tenpin bowls and engaging in mini-golf. The one bowl shown in the video did display that the plaintiff was unable to bend to the extent of executing a bowling action. As he stated in his evidence, he was still on Palexia at that time.
78The plaintiff also was shown, in a very short film, dancing at a festival. To my observation, the dancing was not of such a vigorous nature that I could conclude that the plaintiff had full movement of his lower back. Again, the plaintiff was still ingesting Palexia at the time of that video. The taking of Palexia would have masked the symptoms of pain associated with any movement of his back, both at the time of the dancing and the bowling.
79The plaintiff is a young man who, prior to his injury at work, was someone who could engage in surfing or basketball or snowboarding. I accept that now, due to his low back injury, he is unable to partake in those sports. I find that while he may exaggerate, in part, his lack of mobility, I am satisfied, on the balance of probabilities, that he is unable to partake in any of those sports or return to being engaged in those sports as his son grows up.
Work
80The plaintiff has not made a claim for loss of earning capacity in this application. That was an appropriate course. Nevertheless, he has now been unemployed since he ceased work with the defendant employer in March 2020. The plaintiff has been unable to obtain employment, despite attempting retraining in the IT field. I accept that the fact that the plaintiff has lost a job as a result of the injury to his back is a very considerable consequence.
Conclusion
81The attack on the plaintiff’s credit was principally based around the showing of the videos of him tenpin-bowling, dancing, and playing mini-golf. The film clips are very short in time and on two dates: 22 February 2021 and 2 May 2021.
82The Court of Appeal has given guidance to judges at first instance on the use of video film in assessing the credibility of a plaintiff.[49] The short videos in this case do not cause me to assess the plaintiff’s credibility as unworthy. I do accept that he has on occasion attended at social functions or concerts. However, it is clear that the plaintiff is not living a free and easy life, due to the low back injury and its symptoms of pain and limitation of movement.
[49]Church v Echuca Regional Health (2008) 20 VR 566
83I find, based on the reasons set out in this Judgment, in respect of the consequences of the low back injury to the plaintiff, that when taken together and individually, those consequences meet the statutory test for being more than significant or marked and at least very considerable. I also accept, given the time since the injury in December 2018 first occurred until the present, that the consequences complained of by the plaintiff are for the foreseeable future.
84I grant leave for the plaintiff to bring proceedings to recover pain and suffering damages for injury to his low back as a result of the accident which occurred on 31 December 2018 in the course of his employment with the employer, Swan Street Auctions and Sales.
85I will hear the parties on costs.
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