Trajkoski v DMG Industries Pty Ltd
[2009] VCC 562
•15 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
SERIOUS INJURY DIVISION
DAMAGES AND COMPENSATION LIST
Case No. CI-06-03978
| LJUBE TRAJKOSKI | Plaintiff |
| v | |
| DMG INDUSTRIES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3, 6 and 7 April 2009 |
| DATE OF JUDGMENT: | 15 May 2009 |
| CASE MAY BE CITED AS: | Trajkoski v DMG Industries Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0562 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – s.134AB Accident Compensation Act 1985 – no need to “disentangle” – Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Ansett Australia Ltd v Taylor [2006] VSCA 171; Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167; Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Talevski v Fulop Trading Australia Pty Ltd & VWA [2007] VCC 833; Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527– grant of leave for recovery of damages for pain and suffering follows grant of leave for loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Lewis SC with | Patrick Robinson & Co |
| Mr R Forsyth | ||
| For the Defendant | Mr M Titshall QC with | Thomson Playford Cutlers |
| Ms M Britbart | ||
| HIS HONOUR: |
Introduction
1 This is an application by way of Originating Motion seeking leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages in respect of a lower back injury allegedly suffered by the plaintiff in the course of his employment with the defendant on 15 June 2000 (“the injury”). On that day, the plaintiff alleges that he was lifting a number of heavy boxes when he developed sudden and severe back pain (“the incident”).
2 S.134AB(19)(a) of the Act provides that I must not give leave to bring the proceedings unless satisfied on the balance of probabilities that the injury suffered was a “serious injury”.
3 S.134AB(37) of the Act, so far as relevant, defines “serious injury” as follows:
“serious injury means –
(a) permanent serious impairment or loss of a body function . . . (c) permanent severe mental or permanent severe behavioural
disturbance or disorder.”
4 The body function relied upon by the plaintiff for the purpose of paragraph (a) is his lower spine.
5 The plaintiff seeks leave to bring proceedings in relation to consequences with respect to both pain and suffering and loss of earning capacity: see s.134AB(38)(b) of the Act.
6 S.134AB(38)(j) requires me to assess whether, at the present time, the plaintiff has a serious injury.
The Issues
7 It is in issue that the incident occurred and, if so, whether the plaintiff suffered the injury. Even if the plaintiff suffered the injury, it is in issue as to whether the plaintiff suffered a “serious injury” as defined in s.134AB(37) and (38) of the Act.
8 Should I decide that the plaintiff has suffered a “serious injury” as defined in paragraph (a), there is no need for me to determine whether the plaintiff has suffered a “serious injury” as defined in paragraph (c).
The Plaintiff’s Evidence
9 The plaintiff relied upon two affidavits sworn by him dated 16 May 2006 and 24 March 2009. He also gave viva voce evidence through an interpreter.
10 The plaintiff was born in Macedonia on 17 August 1962 and thus is now aged forty-six. He went to the equivalent of Year 12 level at school and then qualified as a fitter and turner before migrating to Australia in 1993. He is married with two sons aged fifteen and twelve.
11 The plaintiff commenced employment with the defendant in 1994 as a forklift driver and machine operator and this is the only job he has had in Australia. He states that his English language skills are not good – a vocational assessment carried out in July 2007 by Margaret Leitch showed that he had English reading skills equivalent to those of a nine-year old. The plaintiff states that the work was heavy. He worked long hours – on average 12 hours a day, six days per week. At the time of the incident, he was earning approximately $47,000 gross per annum.
12 The plaintiff states that in 1999 his back was somewhat stiff and sore and he consulted his general practitioner, Dr Mike Mazzoni, of Dandenong City Clinic. He understood that he had a muscle strain, and he cannot recall having any time off work.
13 Then, he alleges the incident occurred and he suffered the injury.
14 He did not consult Dr Mazzoni until 1 August 2000. He states that the reason for the delay in seeking medical attention was that he thought his back pain would settle down as it had on the previous occasion, but in fact the pain kept increasing. He states that between the incident and 1 August 2000, he was working at a slower pace and obtaining assistance when required.
15 After August 2000, the plaintiff had substantial periods off work and worked on a part-time basis rather irregularly until he was dismissed in November 2003. He has not worked since. He was dismissed on account of smoking in the workplace after two prior warnings. The plaintiff is now in receipt of a disability pension and does not believe he could do any manual work, the only work for which, he says, he is suited.
16 The plaintiff states that his back injury prevents him from sitting or standing for long periods, that he has difficulty walking long distances and on bad days he needs to lie down to obtain pain relief. His social life and activities around the home are, the plaintiff states, severely restricted by the injury. He states his lower back is constantly painful and that he has a sharp, stabbing pain there. He also experiences spasms in his lower back and referred pain into his right leg. He stated that about eighteen months ago his back became so stiff that he could not walk. He takes Avanza, Panadeine Forte and Mobic, and also uses Voltaren Gel to help ease his back pain.
Medical Evidence
17 As mentioned, the plaintiff attended Dr Mazzoni, his general practitioner, on 1 August 2000 complaining of lower back pain subsequent to lifting boxes at work. In a report of 26 April 2006, Dr Mazzoni states:
“A presumptive diagnosis of a soft tissue injury of the lower back was
established and he was prescribed an anti-inflammatory agent.”
18 Dr Mazzoni certified the plaintiff as unfit for work for two days.
19 He noted in the report that the plaintiff had previously consulted him on 16 February 1999 complaining of lower back pain, and again on 3 March 1999 with a recurrence of the lumbar back pain. He organised an x-ray on 4 March 1999. A report upon that stated:
“Lumbo-sacral spine. There is a very slight scoliosis concave to the right. There are no bony abnormalities demonstrated. The disc spaces remain well preserved. There is some minor degeneration of the L5/S1 facets. The S1 joints appear within normal limits.”
20 The plaintiff did not attend on Dr Mazzoni again, and on 3 August 2000, consulted Dr Marco Sorsok at the Silverton Medical Clinic at Noble Park North. Dr Sorsok arranged a CT scan of the plaintiff’s lumbosacral spine on 4 August 2000 which showed a mild central disc bulge at L4-5 but no significant disc disease or canal stenosis was demonstrated. Dr Sorsok remained his general practitioner until 4 November 2002. Dr Sorsok diagnosed the plaintiff as suffering from discogenic back pain with referred left leg pain, which he stated were caused by the incident. He stated that the plaintiff had developed reactive depression since the incident, caused by his inability to work, and he prescribed an antidepressant. He imposed severe restrictions on the plaintiff’s work capacity – he was not to lift more than 2 kilograms, there was to be no repeated work for more than an hour and he was to have frequent rest intervals. He was hopeful that returning to work would improve the plaintiff’s depression. The last report from Dr Sorsok is dated 27 November 2002.
21 Dr Sorsok referred the plaintiff to Mr Amiroel Razif, orthopaedic surgeon, who examined him on 23 October 2000. Mr Razif took a history from the plaintiff of chronic backache for the past three years. He also took a history of the plaintiff’s backache flaring-up over the preceding three months following the lifting of heavy boxes at work. In a report to the plaintiff’s solicitors dated 19 September 2001, he states, with respect to his examination on 23 October 2000:
“When seen he still had persisting signs of discogenic pain causing a marked restriction in his lumbosacral spine movement and no neurological abnormality noted. …
… it would not be advisable for Mr Trajkoski to undertake any physical work that would involve stressing of his lower back as with bending and lifting.”
22 Mr Razif again saw the plaintiff on 15 March 2002, 5 April 2002, 6 July 2002 and 2 September 2002. He arranged a CT scan of the plaintiff’s lumbar spine on 18 March 2002 which showed a mild L4-5 disc protrusion but no other obvious abnormality in the other lumbar spine levels.
23 On 27 August 2002, he arranged an MRI. A report upon this showed:
“At L4/5, there is a small central disc protrusion, which does not cause neural compromise. The central canal, lateral/subarticular recesses and foramina remain satisfactory.
At L5/S1, there is a small central disc bulge, with a central annular tear. Again, the central canal, lateral and subarticular recesses remain satisfactory. The L5/S1 foramina are slightly reduced but remain adequate bilaterally.
. . .
CONCLUSION
Minimal degenerative disc disease of the lower lumbar spine, without evidence of mechanical nerve root compromise.”
24 Mr Razif, in his last report to the plaintiff’s solicitors of 17 February 2003, stated:
“As mentioned in the previous report Mr Trajkoski’s lower back problem is due to his chronic lower lumbar disc degeneration which one would expect that with time and conservative treatment should resolve enough for him to be able to cope with restricted work not involving activities that would tend to lever and strain his lower back.
When he was last seen despite his ongoing complaint of lower backache and some restriction and stiffness in his lower back there was no sign of any neurological involvement and he was able to move around quite freely.
One would expect that with time Mr Trajkoski’s back condition should settle enough for him to be able to cope with most sedentary activities and restricted work not involving heavy lifting as mentioned previously.
However the fact that he continued to complain of persisting backache more than a year after he was initially seen and the fact that there were signs of over reaction indicating the possibility of psychological overlay being present might indicate a less than satisfactory long term prognosis.”
25 The plaintiff again changed his general practitioner, first consulting Dr Zev Barr on 4 November 2002, who is his present general practitioner. He has been seeing him since November 2002 at least monthly. As well as providing a number of reports, the latest dated 26 March 2009, Dr Barr gave viva voce evidence before me. Dr Barr was far from impressive as a witness and is probably best described as “bumbling” and “muddled”. He referred the plaintiff to various specialists. He diagnosed the plaintiff as having disc damage at L4-5 and L5-S1 levels where ruptures were confirmed. He based this upon a discogram performed in February 2006. It was his view that there was a causal connection between the plaintiff’s work with the defendant and the present condition of his lumbar spine. He expressed the view that the plaintiff is not fit for any work requiring ongoing repetitive or prolonged or exertive use of the cervico-thoraco-lumbar spine and handling of weights over 5 kilograms. It was his view that the plaintiff’s injuries had stabilised with a pattern of severe relapses, such as occurred on 28 June 2007 when the plaintiff presented in great pain, stiffness and spasm, which required opiate analgesic injections. In a report of 26 March 2009, he states:
“This man is in need of ongoing medications, therapy and specialist care, particularly when ridden by relapse involving excruciating pain and spasm.”
26 Dr Barr referred the plaintiff to Dr Victor Wilk, a musculoskeletal physician. He saw the plaintiff on 27 December 2002, 17 January 2003 and 28 May 2003. He noted that when first seen, the plaintiff was taking Panadeine and Panamax tablets four times a day, Cipramil for depression and Celebrex tablets for inflammation.
27 In a report of 11 August 2004 to the plaintiff’s solicitors, he noted:
“MRI scan lumbar spine dated 27 August 2002 showed desiccation of the L4/5 and L5/S1 discs with high intensity zone in the posterior annulus at L5/S1 and associated minor posterior disc bulging at both levels.”
28 He further states in the report:
“From my initial assessment I considered that he was suffering from non specific lower back pain but probably associated with the disc degenerative changes in his lower lumbar spine at L4/5 and L5/S1. I felt that there was a significant element of psychological distress expressed as abnormal illness behaviour and I tried to reassure him and explain to him the nature of the condition. …
On review on 17th January 2003 he was not improved. I performed local injections over the lower lumbar facet joints at L5/S1 on 3rd February 2003 and there was some mild improvement over the next few weeks. …
When last reviewed on 28th May 2003 he was not really improved. … Overall, I considered that he had made some mild improvement in his range of motion over the six months that I had seen him, but overall his pain had not changed much.
Mr Trajkoski cooperated with the examination and history and examination findings are consistent with the stated cause. This man strained his lower back at work lifting heavy boxes on 15th June 2000 and has had persisting lower back pain and referred pain in the legs since then. Examination findings confirmed that he had stiffness and muscle spasm across the lower back which was consistent with the disc degenerative findings on MRI scan. There was no evidence of radiculopathy of the lower limbs.
Capacity for Employment:
When last seen he was struggling to work thee days per week on a part time light duties basis and I considered that he was probably not fit to do much more than that. …”
29 Dr Barr referred the plaintiff to Mr Armin Drnda, consultant neurosurgeon. He examined the plaintiff on 27 October 2003. In a report of 27 October 2003 to Dr Barr, he states:
“On examination he had significant reduction of movements in his lower back with stiffened muscles. All movements in his lower limbs caused a degree of pain and it was difficult to assess him, however I would say that he had normal muscle power, reflexes were normal and straight leg raising test was basically negative, although there was pain in his gluteal region and lower back. There were no signs of radiculopathy on either side.
I reviewed his CT and MRI scans which showed a mild disc protrusion at L4-5 and L5/Sl. It is a central mild protrusion without neural compromise. Composition of the disc on the MRI scan is mildly effected with still a degree of hydration there.
I think Mr Trajkoski has chronic myofascial syndrome which is very difficult to treat after more than three years of pain. He should continue with regular physiotherapy and hydrotherapy as well as regular exercise. He also needs to have support from a psychologist. Operative treatment is not indicated.”
30 Dr Barr referred the plaintiff to Mr Peter Wilde, orthopaedic surgeon. He saw the plaintiff once, on 2 November 2005, and has provided a report to his solicitors dated 30 January 2006. He states in it:
“I told Mr. Trajkoski that he was suffering from discogenic backpain; which would not benefit from surgical treatment. As he had already undertaken considerable conservative treatment there was probably little further treatment that I could recommend for him. …
. . .
With regard to employment I suggested that he look for alternative employment in more sedentary forms of work. Realistically, given his lack of English this will be very difficult for him, if not impossible.
. . .
It is my opinion that employment resulted in aggravation of lower lumbar degenerative disc changes. There was no clinical or radiological evidence of radiculopathy affecting the lower limbs. Despite adequate conservative treatment, he continues to experience persistent and severe pain. It is difficult to explain the stated ongoing symptoms and stated lack of improvement over a period of five years on the basis of purely physical organic pathology. The reason for the severity of his persistent pain is that he has developed a complex lumbar pain syndrome due to an abnormal neurological response with psychological overlay which further aggravates the symptoms.
. . .
When I saw Mr. Trajkoski on 2/11/1005 he had no capacity for pre-injury employment and will never have. He has a capacity for light duties/sedentary employment with restrictions applied, such as no bending, lifting and twisting.”
31 Dr Barr referred the plaintiff to Mr Brian Barrett, orthopaedic surgeon. He first saw the plaintiff on 14 December 2005. He has provided five reports and also gave viva voce evidence.
32 Following his initial examination on 14 December 2005, he stated, in a letter to the plaintiff’s solicitors dated 12 January 2006:
“In my opinion Mr Trajkoski has sustained significant and painful ruptures involving the L4-5 and L5-S1 lumbar discs, during a repeated heavy lifting activity in the course of his employment on the 5th of June 2000.
These disc injuries have been confirmed at two separate CT scans and an MRI investigation of the lumbar spine and have certainly not improved following prolonged conservative treatment.
Following this examination on the 14th of December 2005, I consider that the next diagnostic step was a lumbar discogram radiological investigation, to confirm the diagnosis, to gauge the severity of these lumbar disc injuries, to pinpoint precisely the source of his pain, to check on the state of the adjacent lumbar discs and finally to plan the most appropriate treatment. …”
33 On 15 February 2006, a lumbar discogram x-ray examination was conducted on the plaintiff. A report upon this discogram stated:
“L4/5 DISC:
The disc space height is preserved. The Intradiscal pressure is mild to moderately reduced. The annulus is disrupted with a large posterior fissure extending through the full width of the annulus and contrast leaks into the anterior epidural space. There is a positive pain correlation (rate 6/10) although it is not as strong as at the L5/S1 level.
L5/S1 DISC:
The disc space height is reasonably well preserved. The Intradiscal pressure is reduced and there is lateral and posterior full thickness annular disruption with contrast entering the anterior epidural space. There is a positive pain correlation (rated 8/10).”
34 Mr Barrett stated that the discogram confirmed the opinion contained in his report of 12 January 2006.
35 In a report of 5 June 2008 to the plaintiff’s solicitors, Mr Barrett stated, following a further examination on 3 June 2008:
“In my opinion Mr. Trajkoski sustained significant and painful ruptures involving both the L4-5 and L5-S1 lumbar intervertebral discs, coming on after repeated heavy lifting activities in the course of his employment on the 5th June 2000. Since my previous medical report dated 12/1/2006, a lumbar discogram x-ray investigation has confirmed this diagnosis and precisely pin pointed the source of his disabling pain to both the L4-5 and L5-S1 lumbar disc ruptures.
Lumbar disc ruptures of this type have no capacity to heal or repair, which accounts for his ongoing and long standing symptoms and disability, now, some 8 years since their initial onset.
In reply to your specific questions I wish to state:-
1. Ongoing injuries consists of painful ruptures involving the 2 lower lumbar intervertebral discs at the L4-5 and L5-S1 levels, injuries that have no capacity to heal or repair.
2. The alternative of operative fusion across these 2 ruptured intervertebral discs has been discussed with Mr. Trajkoski in February 2006 and again on 3/6/2008 and he is understandably apprehensive regarding this alternative.
3. At my various examinations of Mr. Ljube Trajkoski between December 2005 and June 2008 he has had no capacity whatsoever for any return to employment, however light and part time that might be, owing to the severity of his ongoing symptoms and disability.
4. Prognosis for improvement of his symptoms are minimal, these injuries have no capacity to heal or repair and the only possibility of significant improvement of his pain is appropriate operative treatment. However, this would not restore his working capacity, but would be likely to improve his symptoms.
5. Disability of Mr. Trajkoski is profound and severe and unlikely to significantly improve into the future. His disability is a result of his work injuries of the 15/6/2000.
6. Diagnosis is that of painful ruptures involving his 2 lower lumbar intervertebral discs.”
36 In re-examination, Mr Barrett confirmed that the disruption of the nerves in the outer casing of the annulus would cause pain.
37 Three specialists have provided medico-legal assessments of the plaintiff for his solicitors and I turn to consider these.
38 Mr Stephen Leitl, orthopaedic surgeon, examined the plaintiff twice at the request of his solicitors, on 20 July 2007 and 4 July 2008. He had the benefit of viewing the two CT scans, the MRI and the discography referred to above.
39 In a report of 23 July 2007 to the plaintiff’s solicitors, he states:
“He has suffered L4/5 and L5/S1 disc injuries and aggravation of lumbar spondylosis as a result of the general nature of his workplace duties, and more specifically the workplace injury on 15 June 2000.
In my view the incident of 15 June 2000 produced L4/5 and L5/S1 disc injuries from which he has not recovered.
In my view the physical basis of his continuing pain and incapacity can be traced to the disc injuries at L4/5 and L5/S1, and the aggravation of lumbar spondylosis at these levels.
In my view he has no capacity to undertake work for which he is fitted by age, training, or experience, and has no capacity for preinjury or suitable employment. His language skills are poor, another factor contributing to his likely future unemployability.
His prognosis for recovery is poor. …
I note Dr Wilde’s comments that ‘.... he has developed a complex lumbar pain syndrome due to abnormal neurological response with
psychological overlay which further aggravates his symptoms’. I agree that there has been a secondary response to his condition of unemployment and poor future job prospects but believe that his continuing symptoms are adequately accounted for by the disc injuries demonstrated at L4/5 and L5/S1.”
40 In a report of 7 July 2008 to the plaintiff’s solicitors following the re- examination on 4 July 2008, he notes evidence of:
“Right paraspinal vertebral muscle spasm”.
41 He stated:
“His prognosis is poor because the disc disruptions have no propensity to heal, and so he will be left with his current symptoms of chronic back pain and bilateral leg pain for the foreseeable future.”
42 He also noted:
“He presented as a genuine individual. His tests for non-organic behaviour (head compression test and simulated rotation test) were negative.”
43 Mr Kenneth Brearley, general surgeon, examined the plaintiff at his solicitor’s request on 4 March 2009 and has provided a report of that date. In it he notes that the plaintiff did not appear to be exaggerating his symptoms or disability. He further states:
“As a result of the repetitive and very heavy lifting at work he sustained a serious low back injury which is continuing to cause low back pain and right leg pain intermittently.
Diagnosis
Mechanical lumbar pain due to intradisc rupture of the L4/5 and L5/S1 intervertebral discs. The lumbar discogram has shown clearly demonstrable large fissures in the posterior aspects of both of these intervertebral discs with resultant disc prolapse and nerve root irritation responsible for his ongoing back pain and his right-sided leg pain.
The very heavy repetitive lifting which he did has been responsible for rupture of the lower intervertebral discs and the sequelae. Had this repetitive heavy lifting not taken place there is no likelihood that he would be having any back or leg problems at this time.
He is disabled with regard to manual labour. He is completely unfit for such work and this is permanent. He is permanently limited to lighter work in the future.
Prognosis
This is poor. There is no likelihood of any improvement in the foreseeable future. His symptoms have been present now for about eight years or more and improvement is exceedingly unlikely. In fact his condition is stabilised.
There is not likely to be any serious deterioration in the future and there is no likelihood that he will require surgical treatment or interventional therapy.
Theoretically he would be able to do some light work part-time. He would need to avoid repeated bending and stooping and lifting beyond 5kg. He would need to be able to sit or stand as he wished. He could work part-time only at least for the foreseeable future. This would comprise three hours work a day for three or possibly four days a week.
His language difficulties however are marked and he has had no training in administration or IT or any light work. Thus given his age, his education, his work experience, his difficulty with English and his ongoing disability, there is no prospect at all that he will be offered any paid employment in the future. He thus has no current work capacity.
. . .
It is the injury of June/July 2000 which prevents him from engaging in his preinjury employment or alternative employment. I am unable to find any psychological or functional factors in his presentation ;and I believe that his injuries and resultant disabilities are organic in nature and clearly explicable on the basis of the history and the investigations; in particular the lumbar discography which shows definite L4/5 and L5/S1 intradisc ruptures.”
44 Dr Helen Sutcliffe, occupational physician, saw the plaintiff at the request of his solicitors on 2 July 2007 and has provided a report dated 19 July 2007. In it, she notes bilateral lumbar muscular spasm. She further states:
“From the history obtained and following examination and perusal of the investigation results and the accompanying reports I believe that Mr Trajkoski sustained disc derangement at two levels in the lumbar spine during a lifting injury in his workplace in June or July 2000 when he was lifting boxes at work.
. . .
I also believe that taking into account the very substantial nature of the work related injury with 2 level disc disruption, that Mr Trajkoski has no capacity for employment taking into account his age, his background, his lack of English fluency or literacy, his education and prior work experience.
He has no capacity for manual employment currently and permanently, and I believe that he has no capacity for part time or full time regular general employment given the nature of the injury, his age, background, poor English literacy and fluency, his education and past work experience.
I believe that the pain is organic in nature and that there is no non organic component to his pain and suffering.
. . .
The prognosis is poor, and with established persistent pain there is unlikely to be improvement after this length of time, and there is no likelihood of resolution of the disc derangement in the future.”
45 The defendant arranged examinations of the plaintiff by five specialists with respect to his lower back, and I now turn to consider their reports.
46 Mr Ronald Quirk, orthopaedic surgeon, examined the plaintiff on 13 September 2000. In a report of 14 September 2000, he expressed the view that the plaintiff was suffering from soft tissue injuries to his lower back. He was prepared to concede that the plaintiff’s employment was “a significant contributing factor” to this condition. He expected the plaintiff’s incapacity “to resolve completely within a month or so”. He did, however, state that “there may be some degree of permanent impairment”. He, of course, had not seen the CT or MRI scans of 2002, nor the results of the discography.
47 Dr Ralph Poppenbeek, occupational medicine consultant, examined the plaintiff on 27 November 2000, 4 April 2001 and 13 August 2001. In a report of 30 November 2000, following his examination on 27 November 2000, he states:
“I believe Mr Trajkoski presents with long-standing lower lumbar spine disc degeneration. The CT scan changes at only the L4-5 level is suggestive, but not diagnostic of an acute injury at some stage. The mild central bulge noted however, is probably more consistent with disc degeneration than acute protrusion. I think this is likely to have been a pre-existing condition, but appears to have been aggravated by the patient’s work in June this year.
The patient states that in June he had more lifting of heavy boxes than usual and the method of shifting a barrel of material from his machine is important. These factors indicate that there is significant work contribution, this contribution is aggravation of a pre-existing condition.”
48 In a report of 5 April 2001, following his examination of 4 April 2001, he states:
“Accordingly, I feel that sufficient time has elapsed for work contribution to have ceased. I think that non-work factors, including psycho-social factors, are responsible for the patient’s current state.
. . .
I believe the patient has a current work capacity and I estimate that this work capacity is full-time work with some restrictions. He should avoid prolonged or repetitive forward bending and heavy lifting in excess of 10kg continuously. He will need to change work posture from time to time.”
49 In a report of 22 August 2001, following examination on 13 August 2001, he states:
“I found Mr Trajkoski to be a pleasant, cooperative historian of slim build as previously noted. Mobility was satisfactory with a mild limp favouring the left leg consistently.
. . .
I believe there was significant work contribution at the time of onset of symptoms in terms of aggravation of a pre existing condition. However, the patient does not appear to me to have a severe problem with his back, yet impairment reported is severe. Examination findings show inconsistency, but even still no significant abnormality. …
At this late stage after 10 months of complete rest, there is debatable ongoing, significant work contribution from physical work injury. I believe the stated impairment is a combination of motivational and psychological factors colouring the physical impairment from the constitutional lumbar disc degeneration.”
50 Dr Poppenbeek has not examined the plaintiff for almost eight years. Further, he has not seen the recent radiological tests.
51 Mr William Doig, orthopaedic surgeon, examined the plaintiff on 8 March 2002 and has provided a report of 12 March 2002. In it he states:
“From his history this man did sustain an injury to his back, probably
about the middle of June of 2000. This is a disc injury.
His employment was the significant contributing factor, as he stated he was picking up three or four fairly heavy boxes at the time.
I believe it has resulted in an incapacity for employment.
I do not believe he could undertake his pre-injury employment and certainly at the time that I saw him, I thought that he was quite incapable of doing any work, not because of his particular orthopaedic complaint, but it seemed to me he was very depressed. This is outside my line of work and I feel he should be seen by a Psychiatrist, who can talk to him in his own language.
From an orthopaedic point of view he may be able to do light work, where he does not have to do any lifting of anything over about four or five kilograms and does not have to do repeated bending.”
52 He further stated in the report that he did not see any “non-work related factors”. He also suggests that Dr Poppenbeek’s opinion as to the plaintiff’s work capacity given twelve months previously would no longer be held by Dr Poppenbeek. In a further report dated 12 December 2002, he notes having seen the reports of Mr Quirk and Dr Poppenbeek. He states:
“His history was a little trouble in his back before the middle of June 2000; that at that stage he was picking up three or four heavy boxes and hurt his back. … His diagnosis is of disc degeneration in his lumbar spine. … I believe his condition was caused by his employment. … The duties he is presently performing of packing three days a week, four hours a day, appear to be reasonable.”
53 Mr Hugh Weaver, orthopaedic specialist, examined the plaintiff on 9 October 2002. In a report of that date he states:
“Mr. Trajkoski clearly presents with both clinical and MRI evidence that he is suffering from a substantial persisting problem of lower lumbar intervertebral disc degeneration. The comment would be made at the outset that he would have no difficulty whatsoever in arguing that his employment activities have represented a significant contributing factor to his situation; indeed, he will be justified in receiving ongoing treatment at the expense of the WorkCover system and I would have to indicate at the outset that his back problem represents a considerable problem for a number of reasons.
I refer to the proposition that Mr. Trajkoski himself is a man who obviously normally undertakes work of a fairly physical character, anyway. Concern is also expressed regarding his fairly inadequate English, something which is probably explained in large part by the proposition that he works amongst a large group of essentially non- English speaking individuals, anyway.
It therefore follows that this man is not only experiencing currently a substantial low back problem which is work related, but he is going to prove very vulnerable to further episodes of injury which might trouble him in the work place. Any further injuries which he does experience will clearly impact even further upon his ability to remain in employment on a long term basis.
I am hardly surprised to learn that he is currently working for no more than four hours a day, three days a week, and that he is being restricted to relatively light duties. Probably the best that can be hoped for is that, if Mr. Trajkoski’s situation does improve at least partially, then he might get back to something like full time work. Nevertheless, he is not going to be capable of undertaking work of a heavy character. …
. . .
In other words, this man is probably teetering upon the point at which he might end up having to go off work, for prolonged further periods, at any time. …”
54 Finally, the defendant’s solicitors had the plaintiff examined by Mr Graeme Brazenor, neurosurgeon, on 1 February 2008. In a report of that date he states:
“At the end of supine examination I sat Mr Trajkoski up to 90o of lumbosacral flexion on the couch without apparently causing him pain. I consider that this was incongruous with his alleged restriction to 40° of lumbar standing position.
. . .
This man suffered a minor injury to the L4/5 disc at some stage, and it may indeed have been in the incident that he describes at work on 15th June 2000. Certainly local doctor medical records would support Mr Trajkoski’s account of the injury at work being the one responsible for the disc protrusion shown on CT and MR scans.
Nevertheless this man’s work history since the injury is surprisingly poor, particularly in the period after August 2002 when scans show that the injury had virtually healed.
The finding of posterior extravasation of dye during discographic injection of the nuclei of the L4/5 and L5/S1 discs on 15th February 2006 does not have obligatory connotations of ongoing pain or disability, except insofar as it suggests that the bearer of that discogram would be well advised to refrain from repeated bending at waist or lifting from below his/her waist level in view of the degenerative changes in the lower two lumbar discs.
Curiously Mr Trajkoski’s activity levels and general health do not seem to have improved over the four years that he has been off work, and I suspect that a magnetic resonance scan currently would show only degenerative changes in the L4/5 and L5/S1 discs; the central disc protrusion at L4/5 very likely will have healed by the present time.
If we place this in concert with Mr Trajkoski’s obvious malingering behaviour during examination today, it is my considered opinion that this man has been fit for full-time employment since the magnetic resonance scan of 27th August 2002, provided, provided that he is not asked to do a job involving repeated bending at the waist, the repeated lifting of objects from below his waist level, or the lifting of objects (such lifting sanctioned only when it does not involve bending at the waist) in excess of 15kg. In other words I believe that there are machines which this man could have operated full-time since August 2002 until the present. Alternatively he could be a security guard walking around a large shopping centre, or a security patrol man doing a ‘beat’ around factories at night.
I do not consider that this man has a serious injury within the meaning of the Act, insofar as there is not a shred of evidence to suggest that he is incapable of full-time employment at a job appropriate to his education and training. “
55 Previously, on 19 June 2007, Mr Brazenor had provided a report to the defendant’s solicitors who asked him to comment upon radiological reports upon the plaintiff. He did so in a letter of 19 June 2007 to the solicitors. In this letter, somewhat strangely, he states:
“I therefore consider Mr Barrett’s letter of 20th February to be an accurate restatement of the findings of the discogram, and I think that his conclusion that it is highly likely that the patient’s clinical pain was coming from the L4-5 and L5-S1 levels is supported by the findings of this discography. … The findings on the discogram could equally arise from gradual degenerative change in the spine, in the absence of trauma, or conversely from degenerative changes significantly contributed to by industrial trauma. The differentiation of these two situations will be, as always, on the basis of: history; a record of the patient’s attendances at doctors, physiotherapists, chiropractors and the like; and examination findings recorded sequentially over a period of time.”
56 To complete the medical picture, I turn to consider psychiatric evidence.
57 The plaintiff was referred to Dr Albert Kaplan, psychiatrist, by Dr Barr. He first saw him on 2 September 2004 and thereafter on an unspecified number of occasions. In a report of 1 February 2005 to the plaintiff’s solicitors, he notes that in June 2004 the plaintiff was referred to a Serbian speaking psychiatrist and also that he had been treated by a Serbian speaking psychologist over a period of two years prior to Dr Kaplan seeing him. I do not have reports from either of these.
58 In the report Dr Kaplan states:
“Mr. Trajkoski has developed an Adjustment Disorder with mixed anxiety and depressed mood (reactive depression and anxiety). This condition probably initially developed in response to the stresses he experienced in the course of his work and has become far more severe as a result of his physical injury, his chronic pain, his inability to work and the physical limitations imposed upon him by his pain. He has developed a low frustration tolerance and his volatility has had a damaging impact upon his relationships with his wife and children. He has suffered from insomnia, his appetite has been affected and his libido has diminished. His memory and concentration have become impaired and he has become socially withdrawn.
Mr. Trajkoski is likely to remain prone to depression and anxiety as long as his pain persists and as long as he is unable to rehabilitate himself back into the workforce and resume his normal lifestyle.”
59 Dr Muhamed Nathar, consultant psychiatrist, examined the plaintiff on 13 March 2009 at the request of his solicitors. In a report of 14 March 2009, he concludes:
“Your client is suffering from two psychiatric conditions. He has a chronic Major Depressive Illness with symptoms of anxiety. He also has a Chronic Pain Disorder in which psychological factors are amplifying his physical problems.
It is my opinion that his psychiatric conditions have arisen following his back injury of June/July 2000. Accepting that his physical problems are still currently a continuation of the original back injury, then there is a major component of his psychiatric reactions being secondary to the physical injuries. On the other hand, he also alleged that he was unsympathetically treated at work after his physical injuries occurred and was abused and made to do work beyond any physical restrictions advised by his doctor. Accepting these matters as factual, then they would add a primary component to his psychiatric injuries. His psychiatric injuries are therefore consistent with the stated cause.
This man has had chronic psychiatric problems for many years now. There had been some assistance with psychological counselling in the past. Lately, he has been prescribed anti depressant medication. I doubt whether further frequent and/or intensive psychiatric or psychological treatment will make much difference to his chronic, debilitating psychiatric problems. The Avanza anti depressant medication should be continued, probably indefinitely to control any possible worsening of his anxiety and depression. I noted in Dr Barr’s report that he had already been trailed (sic) on other anti-depressant medications in the past such as Cipramil. Therefore, what he needs now is maintenance therapy to keep him functioning at the best possible level with little prospect of psychiatric improvement in the future.
I would say that from the psychiatric viewpoint, the prognosis is extremely poor. …
In terms of work capacity, I believe that the severity of his psychiatric injuries alone in the way it has been described above would have caused him to have total and permanent psychiatric work incapacity. …”
60 The defendant did not have the plaintiff examined by a psychiatrist.
Discussion and Conclusions
61 It is first necessary to consider whether the plaintiff suffered a compensable injury – see Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317, at paragraph 7.
62 Did the incident occur? Firstly, the plaintiff swears that the incident occurred. He struck me as a witness who was endeavouring to tell the truth and, in my view, was not shaken in cross-examination on whether the incident occurred as he alleged. Treating and examining doctors generally accepted that the plaintiff injured his back in the incident. Several doctors in their reports state that the plaintiff was not exaggerating his symptoms and was co-operative. Dr Brazenor is the sole medical examiner to suggest that the plaintiff was “a malingerer” and, in the circumstances, I disregard this comment.
63 Finally, by letter dated 20 May 2004, Wyatt Gallagher Bassett Workers Compensation Victoria Pty Ltd wrote to the plaintiff “for and [on] behalf of the Victorian WorkCover Authority”. The letter was headed:
“Date of Injury : 15/06/2000
Accepted Injury/Injuries : Back and Psychiatric disorder On the 14th of November 2002 and the 11th of February 2003, Wyatt Gallagher Bassett Workers Compensation Victoria Pty Ltd accepted liability for your claim pursuant to Sections 98C and 98E of the Accident Compensation Act 1985 (the Act) in relation to the accepted injuries listed above, which you sustained during the course of or due to the nature of your employment with DMG Industries P/L on 15/06/2000.”
64 Ansett Australia Ltd v Taylor [2006] VSCA 171, at paragraph 40, referred to the serious consequences of such an admission for a defendant.
65 In all the circumstances, I am satisfied that the injury as alleged occurred in the incident as alleged was suffered in the incident as alleged.
66 What is the injury? On the basis of the medical reports referred to above, I am satisfied that the plaintiff is suffering from a disc injury at two levels, L4-L5 and L5-S1. Mr Barrett described “discogenic pain” as:
“Pain that is generated by the disc itself and it’s a horrible dull ache in the back, into the buttocks, sometimes into the groins and front, and may be down the thighs a little bit.”
(p.55 Transcript).
67 Radiological tests confirm this. Apart from his treating doctors and doctors from whom the plaintiff obtained medico-legal reports, Mr Doig and Mr Weaver, who examined the plaintiff for the defendants, both diagnosed a disc injury in 2002. Dr Poppenbeek refers to the plaintiff’s disc degeneration. None of these three doctors, of course, had seen the latest radiological tests. Even Mr Brazenor, in his report of 1 February 2008, in stating that the result of the discogram “does not have obligatory connotations of ongoing pain or disability”, indicates, as I read it, the possibility of discogenic pain, but his opinion seems to be clouded by the fact that he sees the plaintiff as a malingerer.
68 I note that Mr Leitl also states that the plaintiff is suffering from aggravation of lumbar spondylosis.
69 Some of the medical reporters state that there are no non-organic factors involved. Others state that there are. So far as the latter are concerned, the comments of Ashley JA in Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167, at paragraphs 19 to 29, are relevant. I note, of course, the provisions of s.134AB(38)(h) of the Act. The comment of Ashley JA, at paragraph 161 of Jayatilake, is also relevant:
“Once accept[ed] that the appellant sustained compensable injury which was, more probably than not, injury to an intervertebral disc in an already degenerate lumbar spine, there is reason to accept the probability of a continuance of symptoms at the level and with the impairment which was present before the picture became clouded by a non-organic overlay. The same should probably be said, at least in this case, if I had characterised the injury as an aggravation of pre-existing but essentially symptomless lumbar degeneration.”
70 I note the pertinent comment of Buchanan JA in Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230, where His Honour stated, at paragraph 25:
“This was not a case that required the disentangling of the effects of physical and psychiatric conditions. Rather, the question was whether or not the respondent suffered from complex regional pain syndrome, which did have an organic or physical basis. … I consider that the medical evidence taken as a whole warranted the conclusion that the respondent’s foot injury produced a complex regional pain syndrome, that is, real, chronic and disabling pain, which was physical, not psychiatric, in origin. …“
71 Was the injury suffered in the incident? I note that from the outset, the overwhelming thrust of the medical evidence is that whatever injury to his lower back the plaintiff suffered, it was “materially contributed to” by the incident – see Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602, at 616, per Ashley JA. In fact, some of the medical reports go even further and regard the incident as “a significant contributing factor” to the plaintiff’s injury. The x-ray of 4 March 1999 compared with later radiological tests supports the view that the injury was suffered in the incident. I accept that the injury was suffered in the incident.
72 I next turn to consider whether, so far as paragraph (a) is concerned, the injury was a “serious injury” as defined in s.134AB(37) and (38) of the Act, In dealing with this issue, it is appropriate to consider all the evidence before me and not just the medical opinions to which I have referred – see Jayatilake, at paragraph 17, per Ashley JA.
73 Prior to the incident, the plaintiff was working long hours – on average 12 hours per day, six days per week – and there was evidence before me that he had little time off work, even though he did have some lower back trouble. It is clear that he had a good work ethic. The situation is dramatically different after the incident. The plaintiff gives evidence of his attempts at work with the defendant following the incident until he was dismissed whilst still on light duties in November 2003.
74 The comment of Ashley JA in Grech, at 620, of treating “the external manifestation of an illness” as “injury” is particularly relevant. This incapacity for work on the part of the plaintiff who had a good work ethic and whom I accept as a credible witness is relevant in considering medical evidence which is not particularly supportive of the plaintiff.
75 I turn to consider the plaintiff’s work capacity. Mr Titshall, one of Her Majesty’s Counsel, who with Ms M Britbart appeared for the defendant, submitted that the plaintiff had a light work back and was capable of various forms of employment. Mr Brazenor, who saw the plaintiff only once on 1 February 2008, is the only doctor who examined the plaintiff in recent times to suggest that the plaintiff is capable of full-time work. All other doctors who have examined the plaintiff in recent times are of the view that the plaintiff is totally unfit for work on account of the physical condition of his lumbar spine since he is really only capable of manual work.
76 I note that as long ago as 9 October 2002, Mr Hugh Weaver, who examined the plaintiff for the defendant, had concerns about the plaintiff’s long-term working capacity.
77 I note the opinion of Margaret Leitch, occupational therapist, that:
“No occupation for which Mr Trajkoski is likely to qualify meets the definition of ‘suitable employment’ and this situation will continue indefinitely.”
78 I conclude that the plaintiff at present has no working capacity and that this is permanent.
79 The plaintiff stated that at the time of the accident he was earning up to $900 gross per week, that is approximately $47,000 gross per annum, and this figure was not disputed by the defendant. This sum “most fairly reflects the worker’s earning capacity had the injury not occurred” for the period 3 years before and 3 years after the accident: see subsection (38)(f). Given that the plaintiff, in my view, now has no earning capacity, and that this is permanent, there had clearly been a loss of earning capacity in excess of 40 per cent.
80 The plaintiff has clearly satisfied s.134AB(38)(e), (f) and (g). The plaintiff has also, in my view, satisfied s.134AB(38)(b) and (c), so far as loss of earning capacity consequences are concerned.
81 Having so found, I also find that the plaintiff has suffered a serious injury with respect to pain and suffering consequences. In my view, this is the correct construction of s.134AB(38)(b) read in the context of s.134AB(17). Further, this approach is in keeping with that of other judges of this Court in recent times. I particularly refer to the judgments of His Honour Judge Strong in Talevski v Fulop Trading Australia Pty Ltd & VWA [2007] VCC 833, at paragraphs 80 to 84, and of His Honour Judge IJK Ross in Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, at paragraphs 96 to 105. I adopt their reasoning.
82 Having found that the plaintiff has suffered a “serious injury” as defined in paragraph (a) with respect to both pain and suffering and loss of earning capacity, there is no need for me to consider whether the plaintiff has suffered a “serious injury” within the meaning of paragraph (c).
83 I give leave to the plaintiff to issue proceedings for the recovery of damages with respect to both pain and suffering and loss of earning capacity.
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