Toll v Nestlé Australia Ltd
[2014] VCC 618
•15 May 2014
=-
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-02027
| DEAN TOLL | Plaintiff |
| v | |
| NESTLÉ AUSTRALIA LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 8 April 2014 | |
DATE OF JUDGMENT: | 15 May 2014 | |
CASE MAY BE CITED AS: | Toll v Nestlé Australia Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 618 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar spine – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v v Orica Australia Pty Ltd (2006) 14 VR 602; Kruisselbrink v Nationwide Maintenance Services Pty Ltd v Nationwide Maintenance Services Pty Ltd [2010] VSC 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with Mr S Carson | Maurice Blackburn |
| For the Defendants | Ms K Galpin with Mr R Stanley | Wisewould Mahony Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the first defendant, particularly during 2006 (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable”, and “more than significant” or “marked”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
12 The plaintiff relied upon three affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged forty four, having been born in August 1969. He is married with five children. The three youngest children, aged nine, seven and six, live with the plaintiff and his wife.
14 The plaintiff attended school to Year 11. Prior to starting work as a process worker with the first defendant in about 1990, he held down jobs as a cleaner and forklift operator.
15 From 1994, the plaintiff worked with the first defendant as a technical officer, generally working a 40-hour week. His work was often fast paced and during the period of employment, frequently there were blockages causing machines to be jammed roughly thirty to forty times per shift. The plaintiff had to clear the blockages by pulling boxes out of the machine. In performing that task, he would be standing and had to stretch out and lean over the machine to retrieve the boxes (“the work duties”).
16 The need to unjam boxes went on for easily a good twelve months.[3]
[3]Transcript “T” 58
17 The plaintiff experienced back pain from time to time, but accepted that as part of what was often strenuous physical work. However, in about mid 2006, he started to notice stronger pain in his lower back area, more to the left (“the injury”). Whereas before the pain would generally come and go, this pain was more constant and seemed to be slowly worsening, with unjamming boxes being a particular problem.
18 In cross-examination, the plaintiff confirmed the work duties caused his back injury and he did not have any problems with his back before working on the machine.[4] He agreed he had seen his doctor in March 2005 and July 2006 for a work-related right shoulder injury.[5]
[4]T20
[5]T25
19 The plaintiff could not recall complaining at Corowa Clinic of low-back pain or pain going down into both thighs in November 2003, nor could he remember making a similar complaint in July 2006. He then agreed that it had bothered him for many years that he would get back pain for no apparent reason. It might be right when he attended Corowa Clinic in July 2006 that he had such a bad episode that he could not go to work. It would be correct he told the doctor that he worked as a machine operator and “does not feel that strains [his] back”.[6]
[6]T44
20 The plaintiff explained in re-examination that there was no task other than unjamming boxes that affected his back working as a technical officer.[7]
[7]T58
21 The plaintiff believed he reported the injury in about October 2006 when it was clear his back was not getting better. He saw the company doctor, Dr Milliken, who advised him he had strained some muscles, and the plaintiff was prescribed Voltaren, and also physiotherapy.
22 That treatment did not help much and the plaintiff started to feel pain down into the left groin area and down the back of his left leg to his knee and his leg felt weak.
23 The plaintiff was referred to a neurosurgeon, Mr McMahon. The plaintiff was given an epidural injection, which helped with the pain for about twelve to eighteen months or so until the relief seemed to fade away and the pain returned.
24 The plaintiff confirmed the onset of pain was in late 2005, early 2006. He had physiotherapy at Dr Milliken’s suggestion. He may have then had a few days off work here and there but not enough to put in a WorkCover claim.[8]
[8]T21
25 In cross-examination, the plaintiff was shown two Claim Forms signed by him. The first in October 2006 described acute low-back pain mopping the floor. The second, signed in May 2007, set out an injury to the low back scrubbing the floor.
26 Following the scrubbing incident, the plaintiff returned to light duties doing mainly office work, not working full 8-hour shifts.[9] He continued these duties until he returned to full time, normal duties after an epidural injection in January 2008.[10]
[9]T32
[10]T32
27 At that time, the plaintiff asked Dr McCurdy for a clearance to work the more profitable 12-hour shifts but he did not think that was a good idea and the plaintiff returned to 8-hour shifts.[11]
[11]T34
28 The plaintiff also agreed that when he saw Mr McMahon in October 2007, he was working four days per week, eight hours per day with a lifting restriction of 10 kilograms as certified by Dr Milliken.[12]
[12]T33
29 The plaintiff agreed he worked in normal duties, managing for over two and a half years from January 2008 without seeing a doctor. During that time, he was occasionally taking medication. He explained however, the pain is always there – “it’s about managing it”. Towards the end of the day, he is always sore but he “does not want to sound like [he] is whinging about it all the time”.[13]
[13]T35
30 The plaintiff agreed the pain from mopping described in the first Claim Form did not come on gradually. He was also carrying out the work duties at that time. Although he did not make a claim in relation to the work duties, “it all stemmed back” from those duties.[14] He was not undertaking the work duties at the time he felt pain, he was mopping the floor.[15] He did not know why he did not mention the work duties in his Claim Forms.[16]
[14]T24
[15]T28
[16]T40
31 The plaintiff agreed the standard procedure was to report an injury at work. He did report problems with the work duties but he was not sure to whom. He explained that the paperwork had changed.[17]
[17]T26
32 The plaintiff could recall attending hospital on 17 October 2008, having been struck in the back. He had an x-ray at that time. The pain then may have been in a different area. He could not be sure.[18] He attended Dr Stuart nine days later with back pain and reported an improvement when seen by her again on 11 November 2008.
[18]T36
33 The plaintiff continued at work, although he was struggling. The pain would build up over the course of the working day. He came home in a great deal of pain, needing to rest as much as possible out of work hours so he could do his work duties.
34 The plaintiff was eventually given some lighter administrative duties in about early 2010, which he did for a year, and he then returned to the line carrying out manual work as before. These duties caused a build up in his pain.
35 Fortunately, the line was improved such that blockages were less frequent, although there would probably be about three or four jams each shift, whereas previously there would be thirty to forty blockages. However, by February 2012, the plaintiff’s pain increased to the extent he had to cease working.
36 When he swore his first affidavit in October 2012, the plaintiff’s treating surgeon thought he also had a hip problem aggravating his back pain.
37 As at that date, the plaintiff continued to have back pain all the time and it was just a matter of how intense or how strong it was. His groin pain and pain down the left leg was still present and it tended to fluctuate, along with his back pain. He also had hip pain. His left leg had a constant ache, along with numbness, and there was also numbness in his left big toe.
38 Bending or twisting type movements tended to make the pain worse, as did prolonged postures. Occasionally, the pain also flared up for no obvious reason.
39 When the pain was particularly bad, there was not much the plaintiff could do at all. He had to lie down and rest and wait for the pain levels to subside. That could take a couple of hours or sometimes even a day or two.
40 Most activities were then compromised. The plaintiff still tried to do most things but he paced himself and/or waited for a day when he felt he was up to the task. He often took Nurofen if he had to do something more strenuous such as mowing the lawn.
41 The plaintiff was also compromised in how he was able to interact with his children. He had to be careful not to have a flare up as that meant he would be limited in what he could do. He still tried to join in but more physical play was simply not possible and that saddened him greatly.
42 Sitting for prolonged periods in a car was not at all good for the plaintiff’s back and referred pain. Driving to Melbourne, he had to stop the car and get out for a break and was in a good deal of pain by the time he arrived.
43 The plaintiff’s sleeping was not good. His pain made it hard to get to sleep and he usually woke in pain. He took a hot shower and did stretching and moved around before he could get himself going in the morning. Intimate relations with his wife were also compromised by pain.
44 The plaintiff was then only taking Nurofen and tried to avoid it if he could but that was not frequently possible as his pain levels got too much. His wife also massaged him from time to time and that gave him some short-term relief.
45 The plaintiff was then off work and worried about his working future and the financial future of his family. His injuries certainly had not improved and it was a case of pacing himself and nursing his back as much as possible.
46 The plaintiff’s life was certainly not the same as it was before the injury and he worried what might happen if things got worse and he was no longer able to keep up with physical employment. It was then really a case of wait and see and he had to accept that pain was now something he had to live with every day.
47 In his second affidavit sworn in April 2013, the plaintiff deposed he had become aware of Dr Marks’ report dated 2 April 2012 in which it was noted the plaintiff moved a fish tank on or about 8 December 2011 (“the fish tank incident’).
48 The plaintiff could now recall the fish tank incident. He remembered a sharp pain and increased pain lasting for a day or so. That flare up was similar to those which he had suffered from 2006, in that pain would flare up from time to time depending on how he moved his back and/or if he placed any strain on it. It was not his recollection the pain then was of any more significance than that.
49 The plaintiff attended the hospital after the fish tank incident. He was then given an anti-inflammatory injection. He had leave for Christmas and then saw his doctor in January 2012 when the epidural wore off. The plaintiff did not find that injection to be of any benefit.[19] He was then off work until February 2013.
[19]T41
50 The plaintiff disagreed there had been a deterioration in his condition due to the fish tank incident. His back problems all stemmed back to the work duties.[20] That was where the initial back problem came from. He did not have to do a lot to hurt his back and he has to be very careful what he does.[21]
[20]T39
[21]T56
51 The plaintiff received weekly payments for two weeks following the fish tank incident. Following Dr Marks’ examination, these payments were ceased. The plaintiff then made a claim pursuant to his income protection policy, advising the insurer he had been “canned by WorkCover” and he “needed the money in a hurry”. He could not get back to normal work at that stage.[22]
[22]T48
52 In his third affidavit sworn 20 March 2014, the plaintiff deposed he continues to experience pain in his low back which travels down to his left groin, hip and down his left leg. Sometimes it also seems to travel up his back. The level of pain varies but at least, a base level of pain is constantly present.
53 The plaintiff has since returned to work with the first defendant. He works with pain and difficulty but does so out of financial necessity. He is prepared to put up with the pain at work when the alternative is he does not have an income.
54 The plaintiff’s current sitting tolerance is about one to two hours before pain builds to such an extent he has to get up and move, such as when driving from Wangaratta to Melbourne. His standing tolerance is up to about two hours before the pain builds to a problematic level. Standing for this time is only possible if he is able to move about. If he had to stand still in one position, he would not last very long.
55 The plaintiff is limited in what he can do around the house. He has to avoid tasks involving bending and twisting of his back; for example, not try vacuuming or mopping as that would certainly flare up very significant back pain.
56 The plaintiff continues to be limited in how much he can interact with his children, with boisterous or physical play no longer possible. That situation upsets him as he feels he and his children are missing out on what should have been a normal and healthy childhood.
57 The plaintiff no longer plays golf, cricket or football. He last played golf in 2003. Until then, he was a member of the Corowa Golf Club, playing socially two to three times a week.[23] He has tried playing golf since the injury but he just does not want to pull up sore in his lower back.[24]
[23]T15
[24]T53
58 The plaintiff stopped playing football at the age of thirty four. He played A Grade cricket until the age of thirty two when his team disbanded and he did not really have the time to play because of his children.[25] Had he had time to play football, he would not have played anyway because he knew of the ramifications to his back.[26] Had his back not been hurt, he would have continued playing cricket as it was a game he could play when he was older.[27]
[25]T53
[26]T53
[27]T54
59 The plaintiff recently went ten-pin bowling with his children but he could not get down low to roll the ball. He has tried kicking a football and having a game of backyard cricket with his children but generally, he cannot do a lot with his children.[28]
[28]T17
60 The plaintiff is no longer having much treatment, not because his back is any better but rather he has got to the point where he questions what more can be done for him by doctors. He has realised that he has really no choice but to put up with pain as best he can.
61 The plaintiff is determined to push himself at work and equally determined to avoid medication if at all possible. However, he still takes four to five paracetamol tablets each week, generally two at a time.
62 The plaintiff has recently had a lower back injection at Dr Todhunter’s suggestion. As with previous injections, the plaintiff got relief initially but that slowly faded. That procedure enabled him to return to full-time work.[29]
[29]T41
63 The plaintiff is worried about the future. He is able to work but the reality is that all of his time is spent resting from work so he is ready to go back to work the next day and the next week. This is the cycle he is prepared to put up with in order to maintain an income. He is very worried about his ability to continue in this manner for an extended period.
64 The plaintiff is grateful he has an employer who is understanding of his limitations and is still prepared to give him employment, as he is not at all confident he would be able to obtain and/or hold down employment in the open job market.
65 At work, there are still issues with the machines but they have been a lot better for the last six years or so and they now are manageable. There now might be three or four jams a day whereas previously there were forty or more, following which the plaintiff had to stretch and lean over and unjam the boxes. The current process is more automated and the plaintiff does not have to “labour” like he used to.[30]
[30]T20
66 In addition to these duties, the plaintiff does the shutdown cleaning when required. He manages his job, including the end of week clean up.[31] He avoids mopping the floor because he knows what will happen if he does so.[32]
[31]T46
[32]T57
67 In cross-examination, the plaintiff agreed he had some improvement following the nerve blocks in February 2013, enabling him to return to work; however, the blocks were starting to wear out. The pain is still bad and he just deals with it.[33]
[33]T19
68 The plaintiff has been going pretty smoothly over the last year and a bit.[34] However, in re-examination, he described how it was a lot more of a struggle doing his job now compared to last year. He finds the last hour of a shift “starting to really get to [him]”. It is all stand up work, and working on a concrete floor does not help.[35]
[34]T44
[35]T59
69 The plaintiff does not believe there is any further help that can be offered to him by doctors. They seemed to think he had back pain and he would get over it. He does not seek medical attention anymore because he gets the same reaction all the time. Physiotherapy does not seem to work – he is not getting anywhere with the injury itself.[36]
[36]T60
70 The plaintiff presently takes a minimum of four to five Panadol weekly. At the start of the week, he takes three tablets at a time and tends to take a bit more as the week progresses.[37]
[37]T59
Video surveillance
71 There was a short film of 14 minutes, 17 seconds’ duration of the plaintiff’s activities on 7, 11 and 12 December 2012:[38]
[38]DVD, Exhibit 1
Date
Time
Event
7 December 2012 3:55pm Plaintiff shown unloading shopping/ schoolbag out of his boot. Holding bags in right hand, closes the boot with his left hand
Plaintiff walks inside his house
11 December 2012 8:51am Plaintiff shown driving
8:53am Plaintiff shown walking around with his wife and children at his sons’ primary school
9:03am Plaintiff shown exiting the primary school with his wife and son
9:05am Plaintiff shown talking to his wife leaning on the school fence resting on his left arm, then having a cigarette and walking off
9:07am Plaintiff followed as he drives down the street
9:17am Plaintiff walks up to and enters primary school
9:21am Plaintiff jogs down the steps from the primary school front office and exits the school walking down the street, then enters the passenger side of his car
9:23am Plaintiff filmed standing on the street
9:26am Plaintiff filmed carrying a 4-kilgoram tin of paint in his right hand and brushes/masking tape/other items in his left. Plaintiff leans into the passenger side of his car and enters his car
9:29am Plaintiff shown carrying 4-kilogram tin of paint in his right hand and brushes, masking tape and other items in his left hand. Plaintiff exits his car without supporting himself using either hand
10:27am Plaintiff filmed walking along the footpath with his wife having a cigarette
15 December 2012 12:57pm Plaintiff shown walking to his car from the school having a cigarette
12:58pm Plaintiff shown bending into his car
Plaintiff filmed standing around chatting to his son and another person having a cigarette
12:59pm Plaintiff bends down to tie up his son’s shoes
1.00pm Plaintiff bends down to tie up his other son’s shoes
72 On 7 December 2012, the plaintiff was shown carrying a school bag and some bags of groceries in his right hand. He denied the items weighed over 10 kilograms. He pointed out he had a visible limp throughout the film on that date.[39]
[39]T54
73 Whilst he moved slowly in this very short film, I did not observe the plaintiff limping.
74 The plaintiff agreed he was shown running down a couple of steps from the school office on 11 December 2012. He was later shown putting a 4-litre tin of paint on the floor of the passenger side of the car. He was shown getting in and out of the car without having support himself.
75 The following day, the plaintiff was shown with his wife and children, having just attended a drink driving course. He bent to tie his children’s shoelaces. He explained sometimes it was difficult to bend like that. He would not be able to bend to that degree all the time because of his lower back pain.[40]
[40]T55
Treaters
76 On 23 January 2008, Dr Milliken at the Border Occupational Medicine Service provided a letter in relation to the plaintiff’s absence from work from 30 April to 4 May 2007.
77 Dr Milliken confirmed the plaintiff suffered from a work-related back injury, with the last certificate in January 2007. The plaintiff did not return for review in February 2007, which he assured Dr Milliken was because the pain had eased. The file, however, was not closed.
78 The plaintiff redeveloped back pain in late April 2007 and as a result of that recurrence, took a week off work. The plaintiff did not think he would need to see a doctor as he thought the back pain he was suffering was a recurrence of his previous injury and he would not need another certificate.
79 When seen in May 2007, Dr Milliken diagnosed the plaintiff as having a recurrence of his back pain, and the plaintiff returned to work on restricted duties.
80 The plaintiff was to have an epidural the following day (24 January 2008). Dr Milliken noted the matter had not fully resolved and the plaintiff had resumed work on long-term restricted duties.
81 In Dr Milliken’s view, the fact the plaintiff did not attend any work from 30 April to 4 May 2007 due to back pain would seem consistent with the facts that he had outlaid that day.
82 Dr McCurdy at the Corowa Medical Centre first saw the plaintiff in relation to his back injury on 29 November 2007, when he gave a history of low-back pain since February 2006 from climbing into a jammed packing machine many times a day.
83 On examination, the plaintiff’s low-back pain was the worst it had been for months from prolonged sitting in the car after driving to Melbourne the day before to see Mr McMahon. The plaintiff’s symptoms were then left low-back pain radiating across his lower back and then often down his right hamstring.
84 The plaintiff was working four days a week on light duties with a 10-kilogram limit. He was not taking any pain relief medication, being worried to take non-steroidal anti-inflammatories because of the side effects. Following examination, Dr McCurdy arranged for the plaintiff to have some routine blood tests.
85 Dr McCurdy had seen the plaintiff four times since 29 November 2007, and was pleased to report significant improvement in his report of January 2008, having last seen the plaintiff on 28 January 2008.
86 The plaintiff reported in the previous three weeks he had been very well as far as back pain went and he felt one hundred per cent after the epidural steroid on 24 January 2008. The plaintiff advised he had already gone back to normal duties at home and wanted to go back to full-time work.
87 Dr McCurdy gave the plaintiff a certificate to try normal duties on the proviso he allowed time for adequate rest breaks, told someone if the pain returned and saw a physiotherapist for core strengthening exercises.
88 Dr McCurdy concluded that the plaintiff had battled with chronic recurrent low-back and right leg pain for the last two years. He had been diagnosed with an L4‑5 nerve root impingement on clinical grounds rather than imaging, which was reported as normal. He had made a significant improvement with rest, lighter duties at work and subsequently, an epidural steroid injection.
89 Dr McCurdy pointed out, as the last eighteen months had demonstrated, he had obviously deemed the plaintiff at significant risk of a recurrence of this injury and he should be encouraged to pursue advice regarding preventative measures from a physiotherapist.
90 The plaintiff later attended the Ovens and King Community Health Service in Wangaratta (“The Health Service”). There, he saw Dr Stuart on 27 October 2010, complaining of back pain, groin pain and leg pain. He advised there had been no injury, but he worked with heavy machinery and had similar back pain eighteen months earlier.
91 The plaintiff was later seen for gastroenteritis at the Health Service on 11 November 2010. He then reported his back pain had improved and he was back at work. He had been seen twice since at The Health Service and not mentioned his back.
92 Dr Stuart noted low-back pain was a common symptom and usually settled with conservative treatment but the plaintiff had only been seen at The Health Service once as of April 2011.
93 Dr Stuart reported on 7 February 2012, the plaintiff had low-back pain which he managed with physiotherapy and non-steroid anti-inflammatories.
94 Dr Stuart referred the plaintiff to Mr McMahon on 22 February 2012, noting he had seen the plaintiff four years earlier and recommended conservative treatment which had been relatively successful in maintaining his pain. Dr Stuart advised that the plaintiff had had physiotherapy, analgesia and non-steroidal anti-inflammatories and he was then taking Naproxen, Panadeine Forte and medication for migraine.
95 Dr Stuart reported in October 2012. She noted the plaintiff told her in February that year that he had had a history of chronic low-back pain. He got flare ups which settled. She noted that was the nature of back pain and therefore she would expect at times the plaintiff would not have the full capacity to work. The plaintiff had had some treatment that would hopefully settle his flare ups and this may allow him a full return to work.
96 Dr Stuart’s suggestion at that time was that the plaintiff might start work three days a week and perhaps with two hours, then work it up to more days a week and more hours. Hopefully, he would be able to return to full-time employment.
97 Dr Stuart pointed out the evidence suggested one of the biggest factors to returning to work after back pain or injury was that the person had a desire to do so. She was not aware of any psychological injury to the plaintiff, although he was certainly upset that his WorkCover submission was rejected.
98 In her most recent report of February 2014, Dr Stuart diagnosed mechanical left lumbosacral back pain; an opinion shared by Mr McMahon and Dr Brett Todhunter.
99 Dr Stuart thought the plaintiff had a capacity for employment, with the number of hours and days probably best judged by a rehabilitation specialist. She noted he would have exacerbations and at any time may be able to work less.
100 In November 2007, Mr McMahon advised Cambridge Insurance that he strongly recommended a lumbar MRI scan as well as a lumbar bone scan and sought funding for these investigations. He also sought funding for a trial of epidural injections in January 2008.
101 Mr McMahon wrote to Dr Stuart in August 2012. He noted he had seen the plaintiff some years ago and organised an L4-5 epidural which actually improved his symptoms for many months.
102 Mr McMahon noted that unfortunately over the last three years, the plaintiff’s symptoms had returned, currently reporting left sided paraspinal lumbar back pain involving the mid to lower lumbar spine, which occasionally radiated to the left buttock and posterior thigh. The plaintiff had also noticed some generalised left lower limb muscle wasting but no specific weakness.
103 The plaintiff had been unable to work since February 2012 due to ongoing symptoms.
104 On examination on 23 August 2012, there was limited straight leg raising, power was normal and reflexes revealed an absent right ankle reflex. Otherwise, reflexes were intact and sensation was normal. The plaintiff also had some mild generalised muscle wasting of his left lower limb. His hip joint examination revealed a slight irritable left hip with pain involving his loin and buttock.
105 Mr McMahon advised the recent lumbar MRI scan revealed some mild lumbar spondylosis. The main area of possible nerve root compression was on the left at L4-5 where the lateral recess was slightly narrowed by a small osteophyte which was causing some mild L5 nerve root compression at its origin.
106 Mr McMahon felt the plaintiff required further investigation and sent him off for a left buttock and hip MRI scan. He noted that if that proved to be normal, he would recommend a repeat L4-5 epidural.
107 In a subsequent report dated 26 November 2012, Mr McMahon commented that the plaintiff presented with left paraspinal lumbar back pain with radiation to his buttocks and thigh, which was probably related to left sided L4-5 lateral recess stenosis causing L5 nerve root compression at its origin. He thought another possible diagnosis was that of facet joint arthropathy involving one of the two lower lumbar facet joints.
108 Noting the good relief from the initial management with an epidural in 2007, Mr McMahon recommended the plaintiff undergo a further L4-5 lumbar epidural injection which was performed in October 2012. He also referred the plaintiff to Dr Todhunter.
109 Mr McMahon thought the plaintiff’s current symptoms were consistent with the work-related injury and suffering a lumbar strain injury and possible nerve root compression as the cause of his symptoms.
110 Mr McMahon considered the plaintiff was currently totally incapacitated from performing his previous work activities as a machine operator. If he responded well to the injection and pain management, Mr McMahon anticipated the plaintiff would be able to return to some work activities part time during 2013. That would include four hours a day, five days a week initially, with an increase in work hours over a two-month period. The plaintiff would also be able to be involved in light work activities with a lifting restriction of 5 kilograms and not being involved in any work that required repetitive bending below knee height or repetitively reaching upwards above head height.
111 Mr McMahon thought overall the plaintiff’s prognosis was quite good and he would envisage him being able to return to his previous work activities in a graduated fashion. That may not be until 2013, depending on his symptoms.
112 Mr McMahon noted the plaintiff’s medical treatment then included epidural injections and pain management, and there was no plan for surgery. However, if the plaintiff developed more in the way of lower limb sciatica, Mr McMahon thought he may need to consider a lumbar laminectomy and decompression of the lower lumbar nerve roots.
113 Mr McMahon concluded the plaintiff’s current management was quite satisfactory. He thought the plaintiff may benefit from physiotherapy and he would definitely benefit from pain management from Dr Todhunter.
114 In January 2013, Dr Todhunter thanked Mr McMahon for referring the plaintiff, who presented with left lumbosacral pain.
115 Dr Todhunter noted the plaintiff continued to work and function quite well. If he stood stationary for a period, his back would start to ache a lot but he was okay walking. He could not sit for more than ten minutes without moving due to increasing aching pain. He experienced some pain into the thigh but no pain below the knee. He did not have any red flag signs. His pain did worry him at night and he took Panadeine Forte.
116 Dr Todhunter noted the MRI scan showed multilevel disc changes and a degree of facet joint arthropathy affecting the left L5-S1 facet joints. There was no nerve root compression.
117 Dr Todhunter’s provisional diagnosis was mechanical left lumbosacral pain.
118 Dr Todhunter advised Mr McMahon he did not think it was worth repeating the epidural injection as it did not help. He thought it would be reasonable to undertake a left L4 to S1 facet joint denervation.
Investigations
119 Dr Milliken organised an x‑ray of the plaintiff’s lumbar spine on 6 November 2006.
120 It was reported that the lumbar lordosis was normal. There was no spondylolisthesis or spondylosis. There was no bone, joint or disc lesion. The paraspinal soft tissue and sacroiliac joints were normal.
121 Dr Milliken organised an MRI scan of the plaintiff’s lumbar spine on 12 December 2006.
122 The clinical notes indicated the plaintiff was a thirty seven year old male with lower back pain for investigation. There was a history of intermittent pain for one year with radiation into right leg. It was reported that the MRI was normal.
123 A bone scan organised by Mr McMahon to investigate right sciatic and left paraspinal pain at the L3 level was normal.
124 Mr McMahon organised an MRI scan of the plaintiff’s lumbar spine on 27 December 2007. It was reported it was a normal study with no change from the previous MRI scan.
125 Mr McMahon carried out an epidural injection at L3-4, L4-5 on 24 January 2008. He organised a CT scan guided injection at the L4-5 level on 4 October 2012.
126 Dr Stuart organised an x‑ray of the plaintiff’s pelvis and left hip in October 2012. It was reported there was reduction in joint space of the left hip joint. Some sclerosis involving the roof of both the acetabula was noted. Early degenerative changes were noted involving both hip joints.
127 Mr McMahon organised an MRI scan of the plaintiff’s lumbar spine in May 2012.
128 It was reported mild diffuse canal narrowing in the lower lumbar spine was secondary to constitutionally short pedicles. Disc height and signal was preserved throughout the lumbar spine and there was no focal disc protrusion. Moderate left L5-S1 facet joint arthropathy was noted with buckling of the ligamentum flavum. That led to minimal left L5-S1 foraminal stenosis but without compression of the exiting left L5 nerve root. There was no significant canal subarticular recess or foraminal stenosis throughout the lumbar spine.
129 There was a normal MRI scan examination of the left hip organised by Mr McMahon in September 2012.
Medico-legal examiners
130 The plaintiff was seen by Mr Barclay Reid, general surgeon, on behalf of Xchanging on 21 July 2011.
131 The plaintiff told him of suffering a low-back injury when performing the work duties, with the onset of pain mainly in the left lower side of his lower back around July and August 2006 with a gradual onset with no specific injury.
132 The plaintiff reported the injury on 26 October 2006 and saw Dr Milliken, who diagnosed muscular pain.
133 At the time of Mr Reid’s examination, the plaintiff had been on light duties for the past eighteen months doing office work and had not taken any time off.
134 The plaintiff then had back pain every day, which increased with activity, and pain in the back of the leg and the left groin. Since the machines had been improved and running well, the frequency of forceful pulling had reduced to about two or three times in an 8-hour shift; however, the plaintiff’s pain continued.
135 The plaintiff was taking Nurofen about once weekly and he also took Voltaren. He had physiotherapy until six months ago but found it was no help.
136 The plaintiff told Mr Reid there had been no previous problems with his back.
137 The plaintiff was married with children, then aged six, four and two. He had previously been a footballer until 2003 and a cricketer until 2004. He had not played any sport since 2004 and devoted his time to his family.
138 Examination of the plaintiff’s low back showed tenderness over the left sacroiliac joint and lateral half of the left groin. There was some restricted movement with mild pain at the extremes of movement. Straight leg raising was to 80 degrees on the right and 50 degrees on the left, at which stage the plaintiff felt pain. The nerve stretch test was positive. Mr Reid thought the pain in the hamstrings was coming from nerve root irritation in the lower back and that would be the S1 nerve root.
139 Examination of the left hip showed a full range of movement and the left sacroiliac joint showed pain on rotatory stress of the sacroiliac joint.
140 Mr Reid noted an MRI scan of the lumbosacral spine of December 2007 and a bone scan, with no abnormality.
141 Mr Reid thought, since the plaintiff had evidence of sciatic nerve root irritation or compression, while the MRI showed no abnormality in the spine, further investigations were required to determine a possible site of the compression. He suggested an MRI scan of the left buttock to show any compression on the sciatic nerve and a nerve conduction study of the sciatic nerve.
142 Mr Reid thought the plaintiff had injured his lumbosacral spine. Although there was no nerve compression and no disc involvement, there were definite signs of sciatic nerve root irritation. He thought it possible, in the face of an absolutely normal MRI scan of the spine, that the problem was due to some compression below the level of the exit of the nerve roots from the spine and possibly somewhere in the buttock.
143 Mr Reid thought the plaintiff had an injury of the flexor and abductor muscles of the left hip, as evidenced by tenderness at their regions, and pain on contraction of those muscles against resistance. The plaintiff had an injury to the erector spinae muscle insertion at the left sacroiliac joint.
144 In Mr Reid’s view, all three conditions stem from the single cause of leaning over the machine with back arched and arms fully stretched forward, pulling strongly on stuck cardboard boxes. He thought the plaintiff continued to suffer from conditions relevant to the alleged injury.
145 Mr Reid thought the prognosis was unclear because of the unknown cause of the left sciatic problem, and further investigations were required. He considered the plaintiff’s medical condition impacted upon his occupation in making it painful to work and causing the plaintiff to have modified duties. He was able to cope with daily activities except putting on his shoes and socks.
146 Mr Reid thought the plaintiff’s condition would worsen unless working conditions were modified. He then thought the plaintiff’s condition had not stabilised and that impairment would change for the better if his working conditions were changed.
147 The plaintiff was examined by Mr Stephen Doig on behalf of CKMLR in February 2014.
148 The plaintiff told Mr Doig he slowly developed back pain in late 2005 or early 2006 when he was doing work involving a lot of lifting and twisting when unjamming machines. The plaintiff advised of six months off work. He underwent an epidural, following which there was good relief and he returned to work. He continued to work with intermittent time off. Following a nerve block he had returned to work.
149 The plaintiff reported that over the last three to four weeks he had been considerably worse, with low-back pain radiating to the left groin. Four to five weeks ago he said he was actually not too bad. Regularly he ached at the end of the day. He was not having any current treatment and did his own stretching exercises regularly.
150 The plaintiff was still working full time on full duties as a technical officer with the first defendant. He was currently on an occasional Panadol, previously taking Panadeine Forte.
151 On examination, there was some tenderness to the left of the midline between L3 and L5. There was some spasm present there as well. There was some limited movement with discomfort at the extreme of ranges. There was no wasting and reflexes and power were normal.
152 Mr Doig noted the investigations had been reported to be normal.
153 Mr Doig concluded the plaintiff stated that he had what would be described as a gradual process type injury as a result of a number of years of heavy lifting and twisting. Mr Doig thought the mechanism of injury was consistent with that and as a consequence, he considered the plaintiff’s work had been a significant contributing factor to his current situation.
154 Mr Doig diagnosed a chronic low-back strain. He noted there was a comment at one stage that there may have been an impingement of the left L4-5 nerve root but there was no present clinical indication thereof.
155 Mr Doig considered the injury was consistent with the stated cause. He noted the plaintiff was then working full time on normal duties and was therefore capable of doing that. The plaintiff advised he had intermittent time off as far as his back was concerned, which Mr Doig thought was also consistent with his current presentation.
156 Mr Doig thought in the future it was probable the plaintiff’s back was going to continue to give him trouble and he would continue to have episodes of ongoing low-back pain whether anything else was done at that stage. As a consequence, in his view, the plaintiff did not have an incapacity for work as he presented at that stage but he may well have an intermittent incapacity for work in the future.
157 Mr Doig considered the prognosis somewhat guarded, in that the plaintiff was likely to have ongoing problems for the foreseeable future no matter what. He thought it may well be that the plaintiff requires a further injection of local anaesthetic and steroid at some stage. He thought the way the plaintiff presented, surgery did not really have a part to play in his ongoing management.
Claim documents
158 The plaintiff signed a Claim for Compensation on 2 November 2006 detailing an injury on 26 October 2006, mopping floors, causing acute lower to middle back pain. The plaintiff described previous pain in that area two months earlier but it was higher up the back. He noted a pulled scapular muscle and taking no medication.
159 The plaintiff signed a second Claim Form on 9 May 2007 detailing an injury to the lower back on 24 October 2007 when his back started aching while scrubbing floors. He noted six months earlier he had had pain in the same area of the back.
The Defendants’ medical evidence
160 Dr Barrett wrote to Physiofix in July 2006, thanking them for seeing the plaintiff for his lower back pain which had been coming and going for three years.
161 Dr Barrett noted the plaintiff had occasional radiation down the left leg; straight leg raising was negative. The plaintiff had been given anti-inflammatories and referred for physiotherapy.
162 The plaintiff attended North East Health Wangaratta on 17 October 2008, when it was noted he had abrasion/graze to the lower back from a fall post assault. He had also attended earlier that year on 23 April 2008 following landing on his buttocks whilst dancing, injuring his lower back.
163 A discharge summary form Wangaratta Hospital on 8 December 2011 set out a primary diagnosis of low-back pain. The plaintiff was –
“… moving a fish tank yesterday. Standing position twisting left to right. Now has some lower back pain, worse with movement. No neurology. Past history of compressed disc.”
Investigations
164 An x‑ray of the plaintiff’s lumbar spine was undertaken in October 2008. There was a limited study; alignment was maintained. There was preservation of lumbar vertebral body height. No fracture could be identified on the projections performed.
165 An x‑ray of the plaintiff’s pelvis and left hip was undertaken in February 2012.
Medico-legal examiners
166 The plaintiff was examined by Professor Vernon Marshall, general surgeon, in January 2008.
167 The plaintiff gave Professor Marshall a history of developing low-back pain at work whilst mopping the factory floor on 26 October 2006. He also reported an earlier episode of higher pain in the mid back on the left which was attributed to torn shoulder and back muscles and worsened by work activities in February 2006 over a period of time. He returned to work after three days and had continuing low-back discomfort and recurring pains on 9 October 2007, aggravated by work activities, ceasing work on 29 November 2007.
168 The plaintiff had then returned to work on restricted duties and was managing current work. He reported that his pain had improved; he still had pain in the low back but no pain down his right leg.
169 On examination, there was no deformity of the spine. There was a full range of thoraco lumbar spine movement. Straight leg raising was to 80 degrees bilaterally and there were no nerve tension signs. There were no neurological abnormalities.
170 Professor Marshall diagnosed acute low-back strain work injury with discogenic pain now resolving. He thought there was no clinical or radiological evidence of neuropathy.
171 Professor Marshall noted the plaintiff had progressive improvement since stopping work and had now returned to restricted duties and was coping. He had been appropriately referred for neurosurgical opinion and an epidural was suggested.
172 Professor Marshall thought the effects of work were still contributing to the plaintiff’s incapacity, which was now resolving. He thought the plaintiff should be able to progressively increase his activities associated with self maintenance strategies back to full duties over a further month to six weeks and he may benefit from epidural injection for persisting symptoms.
173 Dr Kevin Marks, occupational therapist, examined the plaintiff on behalf of Xchanging in April 2012 to assist the case manager to review the plaintiff’s medical and other health services and consider the weekly payments entitlement.
174 The plaintiff gave a history of suffering injury performing the work duties, with his back starting to get sore in October 2006.
175 After some time on light duties, the plaintiff returned to normal duties in January 2008 following an epidural injection. He was then good with no back pain for at least a year. He then started to get dull low-back pain again, leading up to seeing a doctor in Wangaratta in January 2012.
176 Dr Marks noted the plaintiff could not explain the length of time from when he returned to work and when he saw the doctor four years later. He denied any specific incident that might have caused back pain and also denied his current job was difficult or involved any heavy manual handling.
177 Dr Marks noted the plaintiff attended hospital with severe back pain on 8 December 2011 which came on after moving a fish tank the day before. The plaintiff, when asked, did not think this was related to his current back pain.
178 The plaintiff had not been back to work since seeing the doctor on 22 February 2012.
179 The plaintiff reported continuing to suffer left sided low-back pain that radiated into his left groin and occasional pain in the back of his leg and his left toe. He was not having any physiotherapy, nor taking any anti-inflammatories, although in the past he had taken Nurofen and Voltaren. On a typical day at home he did little other than some housework with difficulty. He was unable to drive a manual car.
180 Doing the dishes aggravated the plaintiff’s back because he had to lean over a low bench and he could only do the lawn in short bursts. He could not drive a manual, although he had not had a licence for two years. He was not doing any exercises.
181 On examination, there was a moderate reduction in range of lumbar movement with mild pain in all directions. There was vague tenderness over the right muscle mass but the plaintiff was not tender centrally over the disc spaces or over the right or left facet joints. Straight leg raising was reduced because of pain. There was no numbness. Reflexes were brisk and equal and there was a slight reduction on the right compared to the left calf and thigh.
182 Dr Marks noted the 2006-2007 injury, with an unclear diagnosis at that stage, with investigations being normal. There was eighteen months of pain before the plaintiff first saw a doctor in November 2007. He recovered after a short period after a steroid injection, and returned to full duties in February 2008.
183 Dr Marks thought it unlikely the plaintiff was suffering from discogenic back pain with such a short recovery and with no MRI evidence. It was also his opinion there was no evidence the plaintiff’s back pain was directly work related, although it possibly was.
184 Although the plaintiff was again describing similar symptoms, Dr Marks thought there did not appear to be any relationship to his current work, which the plaintiff said, was not of a difficult or heavy nature. He noted the plaintiff seemed to have first gone to the doctor about his back pain this year, coincidentally only a few weeks after he went to hospital with back pain that had come after an incident at home.
185 Dr Marks thought the plaintiff may be suffering from a simple low-back strain or discogenic pain from internal disc disruption. In his view, the actual cause was unknown but possibly due to the incident at home in December 2011. Dr Marks did not believe there was any evidence to suggest the back pain was work related.
186 Dr Marks thought the plaintiff was fit for modified pre-injury duties, starting with four hours a day. The plaintiff should not lift, push or pull greater than 5 kilograms and should also avoid long periods of standing or sitting.
187 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in September 2013.
188 The plaintiff told Mr Dooley about problems operating machinery and the onset of lower back pain in 2006, subsequent nerve blocks, continuing to work with Nestlé as a technical operator, now working eight shifts making cereal bags.
189 The plaintiff told Mr Dooley that after six hours he felt increasing pain, noting there was a lot of walking involved in his job.
190 The plaintiff reported constant ongoing low back pain and pain in the left groin and at times left lower limb, with also numbness at times. He took Nurofen for pain.
191 The plaintiff told Mr Dooley that in the past, he had been very active playing cricket and football but could no longer do so, and playing golf caused him pain and he had to pace most activities.
192 On examination, there was no deformity of the lumbar spine. There was tenderness of the left lower region. There was some restriction of movement but neurological examination was normal. The plaintiff’s left leg measured half a centimetre less than the right below the patella.
193 Mr Dooley noted the MRI scans of December 2006 and 2007 with no abnormality and the May 2012 scan, following which it was reported there was some degeneration of the left L5-S1 facet and mild narrowing of the spinal canal secondary to constitutionally short pedicles.
194 Mr Dooley thought the plaintiff had naturally occurring degenerative disc disease of the lumbar spine of a mild degree. He noted it was stated he may have some congenital narrowing of the spinal canal.
195 Based on the history, on balance, Mr Dooley believed during the course of his work the plaintiff had aggravated this underlying degenerative condition. Following such an aggravation, a patient may note ongoing intermittent low-back pain and/or in conjunction groin and/or buttock and some lower limb pain.
196 From the radiological reports, Mr Dooley thought there was no evidence of definite nerve root entrapment. On clinical examination, there was no evidence of objective neurological deficit affecting the lower limbs. Radiologically there was no evidence of a major disc prolapse and Mr Dooley noted the plaintiff had found that his symptoms improved with epidural injections and nerve root blocks.
197 Mr Dooley thought the appropriate ongoing treatment for the plaintiff was regular low impact exercise and sensible modification of activity. He considered the plaintiff’s technical operator job was appropriate and that at times, he would need to pace himself during his work just as he did at home.
198 Mr Dooley believed the plaintiff would not be able to carry out regular heavy physical work or regular active impact leisure pursuits. He thought there was no indication for surgery, noting the plaintiff presented as a sensible and genuine historian. He did not believe the plaintiff had an excessive psychological reaction to his situation.
199 In Mr Dooley’s view, the plaintiff would have difficulty carrying out regular physical heavy work or work that involved a lot of bending, lifting and twisting.
200 Dr Dominic Yong, specialist occupational physician, examined the plaintiff in early 2014.
201 The plaintiff told him of initially injuring his back performing the work duties in 2005. He then had treatment before a flare up in 2007-2008, after which he was referred to Mr McMahon. There were periods of restricted duties and his recovery was slow, with the plaintiff resuming normal duties about ten months later.
202 The plaintiff told Dr Yong he had had another flare up some time in 2011 or 2012. He was mopping floors while at work when he noticed increasing low-back pain.
203 The plaintiff stated his condition persisted and he continued to struggle. He thought he was off work for about twelve months, during which time he saw Mr McMahon and was then referred to Dr Todhunter.
204 The plaintiff had facet joint injections at L4-5 which assisted and in early 2013, he returned to work to perform his required duties and hours.
205 Since then, the plaintiff had minimal time off work due to back pain but still had ongoing symptoms. He denied any other flare ups, either at home or work.
206 The plaintiff advised he was taking paracetamol, four to five tablets a week, without any other treatment. He had pain in his low back which radiated into his left groin hip and leg, sometimes up the left back. The plaintiff told Dr Yong he could sit for an hour to two, stand for two hours and walking was not unreasonable.
207 On examination, there was tenderness to palpation. There was some restriction of movement and bilateral straight leg raising was to 50 degrees. There was reduction in light touch sensation over the left calf. There was mild reduction of power with left knee extension. There was no wasting of the lower limbs.
208 Dr Yong concluded the plaintiff had chronic back pain related to a facet joint arthropathy, noting he had reported recent improvement with an injection into the facet joint from Dr Todhunter. There were no features of a radiculopathy or neurocompression.
209 In addition to the original injury relating to the work duties and mopping the floor in 2011 or 2012, Dr Yong noted the report from Wangaratta Hospital which referred to the plaintiff attending with back pain after pushing a fish tank. Dr Yong thought that incident could be a contributing factor to the onset of increasing pain through late 2012, early 2013.
210 Dr Yong did not notice any functional component or any symptoms of overt psychological reaction.
211 Dr Yong noted the plaintiff was currently reported to be working full time doing normal duties as a technical operator at the plant which made cereal and that he did not require any particular work restrictions.
Overview
212 The first issue in dispute in this case was whether the plaintiff suffered a compensable injury during the course of his employment.
213 In line with the plaintiff’s affidavits and the proposed Statement of Claim, his case was put on the basis he had suffered injury by gradual process as a result of performing the work duties with the onset of low-back pain in late 2005/early 2006.
214 Counsel for the defendants submitted the plaintiff had not established that he suffered injury as a result of the work duties. It was submitted that the plaintiff was attempting to find a work process in 2006 that was different upon which to base his claim.[41]
[41]T67
215 Counsel for the defendants relied on comments made by the Court of Appeal in Haden Engineering Pty Ltd v McKinnon[42] as to the requirement to look at all objective material, including contemporaneous material, when considering whether there was a compensable injury, the consequences of which were serious.[43]
[42](2010) 31 VR 1
[43]T81
216 Counsel for the defendants submitted there was no mention in contemporaneous records of any complaint of back pain due to jamming of the machines until the plaintiff saw Dr McCurdy on 29 November 2007 when he then complained of problems with the work duties beginning in February 2006.[44]
[44]T81
217 Further, the work duties were not mentioned as being the cause of any back problems when the plaintiff lodged Claims for Compensation in 2006 and 2007 when he described injury mopping and scrubbing floors. It was submitted that these were ideal occasions in which to report any problems with the work duties.
218 Whilst there was a late complaint about problems with the work duties as counsel for the plaintiff conceded, Dr Milliken’s clinical note of 12 December 2006 is supportive of the plaintiff’s account of the date of onset of back pain, with him then noting intermittent pain for one year with radiation into the right leg. It was submitted this note was consistent with the plaintiff’s account that his symptoms from the work duties were at their height in February 2006.[45]
[45]T82
219 Further, the plaintiff confirmed in re-examination that nothing else gave him a problem at work at that time except the work duties.[46]
[46]T58
220 In Kruisselbrink v Nationwide Maintenance Services Pty Ltd,[47] Forrest, J considered the relevance of the circumstances of compensable injury in deciding an application pursuant to s134AB.
[47][2010] VSC 260
221 In that case, Forrest J stated that s134AB of the Act is a gateway provision which must be satisfied before a claim for damages can be brought. A finding that the plaintiff has a serious injury does not finally determine the rights of the parties. The focus is on the nature and effects of the compensable injury and not upon the cause of action the plaintiff may have.
222 His Honour noted that s134AB(16)(a) makes it clear that the enquiry is whether there is a compensable injury that occurred after October 1999 and whether the consequences of that injury are “serious”.
“… Otherwise the circumstances of employment, so far as they are relevant to the damages trial, form no part of the consideration … [of the issue] of serious injury. … .”[48]
[48](supra) at paragraph [46]
223 His Honour also held that the worker’s entitlement to bring a common-law claim is not dependant upon the identification of a cause of action in the s134AB application but rather establishing the existence of serious injury.[49]
[49](supra) at paragraph [82]
224 I am satisfied that the plaintiff suffered a compensable injury to his lumbar spine as a result of performing the work duties as he described to Dr McCurdy in November 2007, although he made no mention of any problems with those duties in any Claim for Compensation lodged by him.
225 I accept the two Claims for Compensation relating to mopping and scrubbing the floor were only minor aggravations and of short duration, as counsel for the plaintiff submitted, typical of an ongoing situation since the initial problems with the work duties. These aggravations ran a finite course and do not seem to have had a lasting impact on the plaintiff.[50]
[50]83
226 Further, all doctors who have been given a history of the work duties accept that duties of that nature would be causative of low-back pain.
227 Counsel for the plaintiff submitted the fish tank incident was another transient aggravation of the back condition related to the work duties.
228 However, I do not accept this submission for the following reasons:
229 Significantly, there is no evidence from any treating medical practitioner as to the impact, if any, of the fish tank incident on the plaintiff’s present condition.
230 Dr Stuart, who treated the plaintiff before and after that incident, made no mention of it in her brief reports and has simply assumed an ongoing contribution from the work duties, not commenting on the plaintiff’s ability to work full time in his normal job from January 2008, without significant treatment until that incident, following which the plaintiff attended hospital and ceased work for twelve months some two months thereafter.
231 Dr Todhunter simply noted the plaintiff hurt his back gradually rather than suddenly, working in around 2006 and had ongoing back pain since.
232 Whilst Mr McMahon has seen the plaintiff since the fish tank incident, there is no mention of it in his report. He simply accepted the plaintiff suffered ongoing left-sided paraspinal lumbar pain after being involved in a work-related accident whilst in the first defendant’s employment.
233 Other medical examiners, save for Dr Marks, have based their opinions as to causation on similar histories, not having been advised of the fish tank incident or years of full time work until early 2012, a short time after the fish tank incident.
234 Having been given the full history of the plaintiff’s progress since January 2008, the fish tank incident, the hospital attendance and injection thereafter and later, twelve months off work, Dr Marks did not did not believe there was any evidence to suggest the plaintiff’s present back pain was work related.
235 Dr Yong was given a totally different history by the plaintiff of a year off work after mopping duties in 2011 or 2012. Having been advised by the defendants of the fish tank incident, he thought that could be a contributing factor to the onset of the plaintiff’s increasing pain through late 2011 and early 2012.
236 After a period of restricted duties in 2007, from January 2008, the plaintiff had been able to work full time on his normal duties, save for what appears to be a period of about a year in the office from early 2010 to 2011. From January 2008, the plaintiff sought medical treatment on a few occasions for back pain unrelated to his work. He required no ongoing medication.[51]
[51]T70
237 Following the fish tank incident, the plaintiff’s situation changed dramatically, despite his denial as to the contribution of that incident injury to his ongoing condition. When he attended the hospital in December 2011, the plaintiff was given an injection. He had leave over Christmas and after a couple of weeks back at work, without any further injury or incident, he was unable to continue working for twelve months.
238 In the absence of contemporaneous medical evidence, accurate histories to doctors and the nature of the events following the incident, I am not satisfied the work duties are causative of the plaintiff’s present situation.
239 However, even upon an acceptance of the plaintiff’s evidence in this regard, I am not satisfied that the consequences of his present back condition meet the test of seriousness.
An aggravation
240 Further, counsel for the defendants submitted this was an aggravation case as the plaintiff told doctors in 2006 he had had the problem for three years, as Dr Barrett noted at that time.[52]
[52]T68
241 However, there was only one earlier isolated complaint to a doctor of back pain before 2006, in November 2003 at the Corowa Medical Centre. There were no ongoing attendances thereafter until a visit in July 2006.
242 In my view, this is not a case where the plaintiff had any significant ongoing back problem prior to performing the work duties as at the end of 2005, early 2006. He was working full-time unrestricted duties and not receiving any medical treatment or taking medication for a back condition.
243 Whilst the plaintiff at one stage seemed to agree he had had back pain on and off for years before performing the work duties,[53] the consequences of that pain were negligible prior to the plaintiff’s engagement in such duties.
[53]T43
Seriousness
244 Although there is some difference of opinion as to the significance of radiological findings, there is no dispute as to the nature of the plaintiff’s present lumbar condition which has been diagnosed as an aggravation of degenerative changes at L4-5/L5-S1 or mechanical back pain.[54]
[54]Mr Reid, in 2011, thought there might be sciatic nerve root involvement despite lack of radiological evidence. Mr McMahon differed in his interpretation of the MRI reports from the reporting radiologists
245 There is no suggestion by any examining medical practitioner that the plaintiff’s lumbar impairment does not have a substantial organic basis.
Consequences
246 Counsel for the defendants submitted causation was a significant issue but in the end the main defence was seriousness, with the plaintiff having some “grumbling pain” and consequences that are not serious.[55]
[55]T74
Credit
247 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[56]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[56](supra) at paragraph [12]
248 I found the plaintiff to be a credible, truthful witness who did not overstate the extent of his pain and disability. There was nothing on the very short video in my view which was inconsistent with his affidavits or viva voce evidence. Any bending was for short periods, such as when tying up his children’s shoelaces or putting a four kilogram tin of paint on the front passenger floor of his car.
249 There was no comment by any examiner of exaggeration or embellishment on exaggeration. To the contrary, a number of examiners noted the plaintiff was a genuine, straightforward person.
250 As Maxwell P said in Haden Engineering, the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).
251 Clearly, when the plaintiff swore his first affidavit in 2012, his condition was worse than at present. He was then off work and continued to be so until February 2013. He conceded some improvement after that time,[57] although deposing he returned to work due to financial necessity.
[57]T19
252 The plaintiff’s current complaints of pain are not as significant as they were in 2012. He continues to experience pain in his low back, which travels down to his left groin, hip and down his left leg. Sometimes it also seems to travel up his back. The level of pain varies but at least a base level of pain is constantly present.
253 The plaintiff’s medication intake is very limited, requiring only four to five Panadol a week. Treatment has been conservative, with two epidural injections and a radiofrequency denervation in February 2013 which has given him significant relief, enabling him to return to work full time in his previous job, albeit the role being now somewhat more automated.
254 There is nothing from Mr Todhunter as to what further treatment, if any, is required.
255 Mr McMahon is the only medical practitioner who thought if worsening leg symptoms occurred, there was a risk of surgery in the form of a laminectomy and a decompression.
256 I accept that the plaintiff has some tiredness and back pain following a day at work and needs to rest to be able to continue working. He has a continuing level of back discomfort; however, that has not prevented him working since February 2013 in his normal duties without modification or restriction. Further, he participates in clean ups at the end of each week.[58]
[58]T46
257 The plaintiff’s affidavit evidence that he can only stand for two hours is at odds with this work situation, where he is required to be on his feet standing all day at work.[59]
[59]T59
258 In these circumstances, I do accept the submission by counsel for the plaintiff that the plaintiff is able to work full time because he is a stoic.[60] Further, the plaintiff has had no need for any significant time off work.[61]
[60]T83
[61]T74
259 I accept the plaintiff’s back condition impacts to some degree on his ability to play freely with his children. There was no challenge to his evidence of an interference with intimate relations with his wife because of back pain.
260 I do not accept there has been any significant effect on the plaintiff’s sporting life, the plaintiff having given up competitive football and cricket in 2003, three years before the relevant injury. At that time, his cricket team had disbanded.
261 As the plaintiff told Dr Reid, he had previously been a footballer up until 2003 and played cricket until 2004 and had not done any sport since.[62] The plaintiff also gave up golf in 2003, some years before he carried out the work duties.[63]
[62]T79
[63]T75
262 I accept the plaintiff is restricted to some extent in his ability to do home maintenance and gardening.
263 Whilst the plaintiff mentioned sleeping problems in his first affidavit, there is no mention of continuing problems in this regard due to back pain in his most recent affidavit.
264 In Dwyer v Calco Timbers Pty Ltd (No 2),[64] Ashley JA stated:
“… in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”
[64][2008] VSCA 260 at paragraph 27
265 The plaintiff is still able to work full time in his pre-injury job. There is no suggestion that position is at risk. He requires no treatment and takes limited medication. There has been no suggestion of any further denervation procedures or other treatment, despite the plaintiff’s complaint that the relief obtained from the most recent procedure are decreasing.
266 Taking into account all the evidence, I am not satisfied the plaintiff has a serious injury.
267 Accordingly, his application is dismissed.
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