Varapodio v Tatura Milk Industries Limited
[2012] VCC 1400
•14 September 2012 (revised 21 September 2012)
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT WANGARATTA
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00718
| MARIO VARAPODIO | Plaintiff |
| v. | |
| TATURA MILK INDUSTRIES LIMITED | Defendant |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2012 | |
DATE OF JUDGMENT: | 14 September 2012 (revised 21 September 2012) | |
CASE MAY BE CITED AS: | Varapodio v Tatura Milk Industries Limited | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1400 | |
REASONS FOR JUDGMENT
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Catchwords: Serious injury – Back injury – Pain and suffering consequences – Whether statutory test satisfied – s.134AB Accident Compensation Act 1986.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti with Mr G. Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr W.R. Middleton SC with Ms R. Kaye | Wisewould Mahony Lawyers |
HIS HONOUR:
1 Mario Varapodio worked for the defendant as a cheese production operator from February 1995. His duties included the lifting and manual handling of milk products including cheese, butter and other ingredients. Over time he suffered occurrences of back pain. Mr Varapodio said that, "In 2006 my back broke down with the heavy and continual lifting".
2 In January 2006, Mr Varapodio attended his general practitioner, Mr Stephen Hook, who obtained a CT scan of the lumbar spine. It showed a "moderate sized L5-S1 posterocentral disc protrusion causing mild thecal impingement [and] a small L4-5 posterocentral disc protrusion causing minimal thecal impingement". These findings were confirmed in an MRI report on 25 October 2011 which noted, "The disc protrusions have not resolved and there is slightly more contact with the left S1 root on this occasion".
3 Mr Varapodio's pain continued to worsen. It affected his activities of daily living. His work duties were restricted, but after being required to perform repeated heavy lifting tasks, he went off work in November 2011. He has not worked since. Mr Varapodio seeks leave pursuant to s.134AB of the Accident Compensation Act 1986 for leave to commence proceedings limited to pain and suffering damages in respect of the injury to his back suffered in the workplace up to and since 2006. The critical issue for determination in the application is whether the consequences of Mr Varapodio's back impairment satisfies the statutory test.
The injury and treatment
4 Dr Hook referred Mr Varapodio to Dr Paul Verrills, a specialist in pain medicine. In September 2006, Dr Verrills administered "bilateral medial branch blocks at L3, 4 and 5, and radiofrequency neurotomy at L4-5 and L5-S1 facet joints bilaterally". Mr Varapodio's pain persisted although he continued working. Physiotherapy offered no relief. He regularly took Nurofen and Panadol for pain relief. The pain in his back and left leg became increasingly debilitating. In 2010, Dr Verrills gave him "an injection of cortisone and local anaesthetic".
5 Later that year, a neurosurgeon, Mr Maartens, recommended conservative treatment for a further period before surgery was contemplated. Pain medication increased to 200 mg of Tramadol twice daily and Valium. In 2011 and 2012, Mr Varapodio's condition "worsened" and he suffered "from constant and ongoing pain" in his lower back which could be aggravated by activity.
6 Mr Varapodio commenced monthly sessions with a myotherapist, Ms Amanda Shannon, and more regular treatments from an occupational rehabilitation specialist, Ms Sushill Sharma, who applied heat treatment and used a TENS machine. Mr Varapodio continues with Tramadol and Nurofen for pain relief and Zoloft to help deal with his anxiety. More recently he has been prescribed Panadol Osteo.
7 Other treatment options discussed have included:
a. further injections by Dr Verrills;
b. a two-level fusion at L4-5 and L5-S1 with Mr Maartens, in respect of which he obtained a second opinion from another neurosurgeon, Mr Graeme Brazenor. Both suggested deferring the decision because of Mr Varapodio's age and the additional pressure the operation would place on other discs.
8 Mr Varapodio has continued with conservative treatment "walking and with the use of back brace" as recommended by Mr Brazenor. Mr Varapodio terminated the myotherapy treatment but resumed after his back pain deteriorated.
Work and other affected activities
9 Mr Varapodio attempted to continue at work on restricted duties. He said that his employer required him to perform heavy tasks which he said were "clearly outside his capacity". This involved "climbing up and down stairs to a platform and tipping buckets of skim powdered milk weighing in the vicinity of 10 to 15 kg into a vat". Mr Varapodio ceased work shortly after in November 2011. His employer informed him that there was no "suitable duties for me and they were only able to take me back on at work if I was able to perform my pre-injury duties".
10 After he ceased work, Mr Varapodio participated in a traffic management course as part of a rehabilitation program offered by the insurer. He has also sought employment in various other fields without success. He wants to work but is not sure of his capacity to perform particular jobs. He enjoyed working, including performing extensive overtime, and the socialising at work. He misses these aspects.
11 Mr Varapodio says that his domestic, social and recreational activities have been significantly affected by his back pain. Mr Varapodio says he continues "to suffer from constant and ongoing pain in my lower back" which is aggravated in certain circumstances with symptoms down his left leg and down into his foot.
12 The consequences of his back injury have included the following:
a. in his evidence, Mr Varapodio became emotional when talking about the effect of his injury on his ability to participate in activities with his wife and two sons and with his wider family, and particularly with his nine brothers. His parents had come to Australia from Italy, and their children, including Mr Varapodio, had grown up on the family farm, now run by a brother as an orchard. Mr Varapodio described activities including making sausages and salamis, wine and tomato sauce, and work at the family farm. Mr Varapodio is no longer able to wholeheartedly participate in the family activities and feels that he “does not pull his weight”;
b. at home, Mr Varapodio still maintains a small vegetable patch and mows the lawn. The garden has been curtailed to reduce the maintenance required. He prunes his six olive trees and washes the family cars;
c. driving for "prolonged periods" increases his back pain;
d. he assists with domestic chores but these are limited;
e. his participation in family and other social functions is much less;
f. his sleep is affected. When he wakes his back is very stiff and he feels tired due to lack of sleep;
g. intimate relations with his wife remain "considerably restricted";
h. he avoids participating in boxing, karate and ball sports he previously pursued with his children;
i. he was unable to enjoy a family holiday to Italy in 2011 and only continued because of his family.
Plaintiff’s response to treatment
13 There was no suggestion that Mr Varapodio was not a credible witness or an accurate historian. He has, in my view, attempted to follow the treatment regime suggested by the doctors. This has included the medial branch blocks and radiofrequency neurotomy and cortisone injection. Because of Mr Varapodio's age (42), surgery is not a viable option at this stage.
14 The future treatment suggested by the doctors involves:
a. a return to employment as soon as possible performing appropriately restricted tasks;
b. a self-exercise program including walking;
c. reduction of his reliance on prescription medication. Some doctors have suggested he avoid what orthopaedic surgeon Mr Michael Brighton-Knight described as misguided "multiple interventional practitioners such as naturopaths, osteopaths, chiropractors" who perform "physical manipulations and interventions", and that there be "no further radiological investigations".
15 Mr Brazenor, a neurosurgeon, told Mr Varapodio in May 2012 that Mr Varapodio’s statement that, "He is no better since he left work last year, simply cannot be true". He told Mr Varapodio's wife to take her husband's Valium tablets and "drop them into the nearest waste paper bin as she passes" and to send her husband's "recliner chair to the tip" and for him to sit only in "straight back chairs".
16 Mr Brazenor told Mr Varapodio that he thought, "We can make this man pain-free". He suggested a walking program of four equal walks every day starting with 10 minutes each day building up to 30 minutes with "one full hour of lying down after each walk". Mr Varapodio attempted to comply with this regime for six weeks, although it occupied about five to six hours each day and gave him no relief. Mr Varapodio found certain aspects of the program worsened his pain. He modified the program and continues to take a single walk of 30 to 40 minutes each day.
17 Dr Hook and other doctors at the Wyndham House Clinic general practice in Shepparton continued to certify Mr Varapodio as fit for modified duties with restrictions. These restrictions have remained unchanged since at least January 2012, and probably before the time Mr Varapodio went off work in November 2011. These restrictions relate to prolonged sitting and standing and other matters referred to in the "return to work program dated 19 October 2007".
18 The certification notes, "He is not likely to suffer further injury under the circumstances and should be reassured to this effect so as to encourage active rehabilitation. I have no problem with him working 38 hours and 15 hours of overtime. He is to report any change in pain levels or problems”.
19 In a letter to the defendant dated 18 August 2011, Dr Hook referred to these restrictions, commented about working hours and concluded, "Currently he tells me he is managing well under these instructions”. The inclusion of these matters in the current certificates, some 10 months after Mr Varapodio ceased work, do not seem appropriate. Dr Hook's most recent report is dated 7 September 2012. It notes that, "Mario was always keen to return to work but it was the workplace that ceased his employment".
Medical opinions
20 Dr Hook considered that Mr Varapodio "is fit for light manual and sedentary work initially part-time up to 20 hours work per week. Restrictions should also take into account that he cannot sit or stand for long periods. A recent attempt at holding traffic-directing road signs for road works proved unsatisfactory due to being unable to manage the prolonged standing. He is able to drive a vehicle for a moderate period of time but would have difficulty with a heavy vehicle. His social, domestic and recreational activities have also been significantly affected. I believe his injuries and incapacities as described above are ongoing and unlikely to improve in the foreseeable future. He has undergone much and varied treatments including analgesic, anti-inflammatories, nerve blocks, myotherapy, physiotherapy and rehabilitation. All these have been of limited help. Surgery is considered a last resort and he has consulted several orthopaedic surgeons regarding this. I believe his prognosis as described above shows some limited work capacity. He will never return to his work prior to 2006. I believe his pain will persist and possibly worsen. He may require surgery in the future”.
21 I consider that these statements are the most accurate description of Mr Varapodio's present capacity. There is in fact little dispute among the treaters and examining doctors.
a. Mr Nicholas Maartens referred to the "possibility" of Mr Varapodio's back problems "eventually settling spontaneously" but said:
"Despite saying this, the prospects for this occurring do not seem very optimistic. The only treatment available to him would be to undergo a two-level anterior lumbar interbody fusion. Considering his young age, before offering him the surgery I am asking my colleague, Associate Professor Graeme Brazenor, to first give a second opinion”.
b. Mr Brazenor noted upon examination of Mr Varapodio, "Spasm of his lumbar erector spinae muscles, so I believe him when he says he has pain”. On 18 May 2012, Mr Brazenor certified Mr Varapodio as unfit to return to work for 28 days, and then "Fit to work in the brace ... at a non-bending job". He said Mr Varapodio's "days of doing a bending at the waist job are over".
c. Mr Kenneth Brearley, a consultant orthopaedic surgeon, saw Mr Varapodio at the request of his solicitors on 15 August 2012. Mr Brearley said that:
"There is little wonder that this brutally heavy work [with the defendant] resulted in this man's serious back problems ... He is incapable of doing any heavy labouring type work and this is permanent. As mentioned above, he should in the future completely avoid manual labour or any work which does involve heavy or repeated lifting, bending and stooping. This will certainly limit his job opportunities ... He needs ongoing conservative treatment with physiotherapy during exacerbations of pain. He does require a pain management program for he needs to reduce his current drug therapy and in particular Tramadol ... In the medium term he will almost certainly have exacerbations of his back pain and probably gradual worsening as he grows older. He will need to carry out carefully selected employment”.
d. Mr David Brownbill, a consultant neurosurgeon, examined Mr Varapodio at the request of his solicitors on 15 August 2012. He considered that the injury and associated impairment of Mr Varapodio's spine "is likely to restrict him in relation to social, domestic and recreational activities to a moderate degree and I consider such incapacity will continue for the foreseeable future".
e. Mr Michael Brighton-Knight saw Mr Varapodio upon referral from Dr Hook on about 1 April 2010. He said, "I think it is very important that he does not reference his work as a source of pain because in fact retaining employment will be one of the key features to managing his pain. I have made it very clear to him that I do not believe that work has caused his spine to wear out”.
f. Mr Brendan Dooley, an orthopaedic surgeon, saw Mr Varapodio at the request of the workers compensation insurer on 16 March 2011. He concluded his report by saying:
"Almost every doctor this man has seen has advised that he should cease his current work which involves repetitive lifting, which is the cause of the persisting symptoms in his thoracolumbar spine. The probabilities are that he will largely or fully recover following cessation of this type of work and doing alternative lighter work”.
g. Dr Owen White, a neurologist, saw Mr Varapodio at the request of the defendant's solicitors on 17 January 2012. Dr White stated:
"At this stage it is my opinion that he is probably fit to continue that work, although there is the risk of degenerative change proceeding with ageing over the next few years. It is unlikely that anything will actually render him pain-free ... There is evidence of nerve root entrapment to explain his left leg pain ... I do not detect any functional component, significant psychological reaction beyond some slight anxiety related to his current position or indication that he is in any way, shape or form falsifying his statements. He appears to be well motivated”.
h. Mr Ian Jones, an orthopaedic surgeon, saw Mr Varapodio at the request of the defendant's solicitors on 13 August 2012. Mr Jones said:
"I believe that some of this patient's current complaints of back pain and stiffness and referred pain into his left leg are related to the degeneration and disc protrusions at the L4-5 and L5-S1 levels ... I am not able to detect any particular signs of functional component to his presentation ... This patient's back condition restricts his ability to repeatedly bend his lower spine. Lifting of weights from a bent position would be limited to approximately 3 kg. In a standing position he would be capable of lifting weights of 5 kg without the likelihood of aggravating his back complaint”.
Conclusions
22 Mr Varapodio was 26 when he started work with the defendant. He performed heavy work for over 10 years before his back problems required significant medical intervention. These problems did not resolve over time as previously flare-ups had. He has lived with significant back problems for the last six years. His pain medication, Tramadol, was recently replaced with a prescription of Panadol Osteo six 65 mg with the instructions from Dr Hook, "Two tablets three times a day when required".
23 Mr Varapodio has reduced work opportunities at present and has not found work since the defendant had no further work for him in November 2011. He is restricted in the type of employment he can pursue. His education and literary skills are limited. He has always undertaken heavy manual work.
24 Mr Varapodio's other activities at home and with his immediate and extended family have been affected to a significant degree. He tries to remain positive and active. This increases his pain and his need for pain medication. He has been a compliant patient and gave Mr Brazenor's exacting walking regime his best effort. His continued walking program is not insignificant.
25 Mr Varapodio's treating general practitioner is not optimistic. He has obtained a range of specialist opinions. It is likely at some stage a lumbar fusion will be the only possibility of improving Mr Varapodio's condition. None of the examining doctors doubt his genuineness or the physical causes of his back pain.
26 In the circumstances, I consider that the consequences to Mr Varapodio of the injury to his spine suffered over many years of working with the defendant might fairly be described as "very considerable". Accordingly, the patient will have leave to issue a proceeding limited to pain and suffering damages in respect of the workplace injury.
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Certificate
I certify that these 8 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 14 September 2012 and revised on 21 September 2012.
Dated: 21 September 2012
Caroline Dawes
Associate to His Honour Judge Anderson
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