Varga, Joseph v Inter Industrial Services Pty Ltd
[2009] VCC 1778
•18 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-03352
| JOSEPH VARGA | Plaintiff |
| v | |
| INTER INDUSTRIAL SERVICES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 December 2009 |
| DATE OF JUDGMENT: | 18 December 2009 |
| CASE MAY BE CITED AS: | Varga, Joseph v Inter Industrial Services Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1778 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – S.134AB Accident Compensation Act 1985 – injury to lower spine in course of employment – aggravation of underlying degenerative disease – whether consequences “very considerable”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S A Smith | Shine Lawyers |
| For the Defendant | Mr J L Batten | Lander & Rogers |
| HIS HONOUR: |
Preliminary
1 In approximately September 2004, when the plaintiff was working for the defendant, he had a short episode of back and leg pain and noticed some wasting of his left thigh. He did not seek significant medical treatment and remained at work.
2 On 24 February 2005, the plaintiff suffered pain in his back and left leg again after heavy lifting at his employment. He consulted his general practitioner and a subsequent MRI investigation revealed disc protrusions at L3-4 and L4- 5 with some displacement of nerve roots at those levels.
3 It was generally accepted by the medical practitioners that thereafter the plaintiff was unable to resume his heavy labouring duties. He undertook a course of rehabilitation and retrained as a teacher, teaching mechanical studies to students at a secondary college. He is presently studying to obtain a Bachelor of Education.
4 He claims to suffer pain and a restriction in a range of activities and recreational pursuits as a result of his back injury.
5 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment on or about 24 February 2005.
6 Mr Smith, on behalf of the plaintiff, identified the body function said to be lost or impaired as the lower spine. The application is thus brought under subsection (a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of pain and suffering damages only.
7 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of impairments or losses of the body function of the spine.
8 The plaintiff was the only witness to be called to give evidence and be cross- examined. In addition, affidavits of the plaintiff, various medical and radiological reports, and clinical notes were tendered into evidence. I have read all the tendered materials.
9 On behalf of the defendant, Mr Batten outlined the position of his client in response to the application as follows:
•
At best, Mr Batten said the plaintiff had suffered an aggravation of an underlying degenerative process. He stated the plaintiff had symptoms in September 2004 and in accordance with the principles identified in Petkovski v Galletti[1] an assessment ought to be made of the extent to which the aggravation itself produced consequences which reached the “serious” level.
•
Mr Batten said the onus was upon the plaintiff to prove what consequences arose as a result of the particular incident.
•
Whatever the consequences, they did not meet the “very considerable” test as the Act required.
[1] (1994) 1 VR 436
Relevant Background
10 The plaintiff was born in 1963 and is currently forty-six years of age. He was born in Hungary and came to Australia at age seven. He was schooled to Year 10 and has spent his working life essentially in labouring jobs. Over a period of about twenty to twenty-five years, he worked as a motor mechanic with various employers. In approximately 1999, he joined a company, Alstom, and worked as a cable jointer and was involved in the installation of telecommunications cables at commercial sites. He described this as relatively light work. He accepted in cross-examination that he may possibly be able to do that work at the present time.
11 He was made redundant in that employment, and commenced employment with the defendant in December 2003. The defendant is a labour hire company, and the plaintiff was contracted to work at Volgren which was a company involved in fabrication of steel for buses. This represented a return to labouring for the plaintiff, and he stated in cross-examination that the job was not ideal for him, but he took the employment as there were no other jobs available.
12 In the 1990s he suffered some carpal tunnel injury to his wrist which was successfully treated with surgery. Apart from some minor injuries, he was otherwise in good health until September 2004 when he commenced to suffer pain in his back and left leg. He noticed that his thigh muscle had wasted, and as a result went to see his treating general practitioner, Dr Burr. According to that doctor’s clinical notes,[2] the plaintiff described an episode of low-back pain with pain radiating into his left thigh and leg. Straight leg raising was normal and Dr Burr diagnosed soft tissue low-back pain. He prescribed anti-inflammatory medication.
[2] Defendant’s Court Book (“DCB”) 70
13 According to the clinical notes of a treating physiotherapist,[3] when the plaintiff attended after injury in February 2005, he provided a history of “5/12 sciatic injury, dragging steel (1/7 has become worse)”.
[3] DCB 71
14 Save as aforesaid, he was in good health prior to 24 February 2005. He was able to perform heavy bending, lifting, bending and twisting without difficulty and undertook a range of domestic duties, including gardening and mowing the lawn. He described himself as a “weekend hacker” on the golf course. He stated that he played golf once a month or so, but was not a member of any club, nor played in any particular fixed competitions.
The Injury and its Consequences
15 On 24 February 2005, the plaintiff was retrieving heavy pieces of angle steel at Volgren’s premises in order to transport them to a fabrication area for cutting. He stated that the pieces of steel were large and heavy and he was not able to gain immediate access to them with a trolley as there was a bus parked in the area where they were stored. As a result, he had to carry the pieces of steel and did so during the course of the day, but when he returned home that evening, he began to feel pain in his lower back. The next morning he struggled to get out of bed and on 25 February 2005, went to see a physiotherapist at Narre Warren, and gave the history as referred to above.
16 He remained at work until approximately 1 March 2005 and according to Dr Burr’s clinical notes,[4] he consulted him on 3 March 2005 complaining of injury on 24 February. The clinical notes record improving left buttock and left low- back pain. It was noted the left leg was thinner and that earlier, in October 2004, the plaintiff had suffered low back pain. Dr Burr referred the plaintiff for a CT scan of his lumbar spine[5] which showed:
“Left posterolateral bulging of the L3-4 intervertebral disc extends into the adjacent neural foramen where it may affect the exiting L3 nerve root. Mild right posterior bulging of the L5-S1 intervertebral disc causes mild compression of the adjacent thecal sac.”
[4] DCB 70
[5] PCB 37
17 In March 2005, Dr Burr referred the plaintiff to Mr Brighton-Knight, orthopaedic surgeon, at the Monash Medical Centre. He noted:
“Fairly clear cut left L3 nerve root weakness causing weakness of his quadriceps on the left-hand side. His other neurologic examination is normal.”
18 He considered that the CT scan undertaken, confirmed nerve root compression. He referred the plaintiff for an MRI scan[6] which revealed:
“Left lateral disc protrusions are present at L3-4 and L4-5 with
displacement of the associated exiting nerve root. …”
[6] PCB 38
19 Mr Brighton-Knight saw the plaintiff again in May 2005 where he also noted there was disc herniation at L5-S1. He stated that the plaintiff had continued to improve and was feeling better after physiotherapy. He considered the plaintiff was suffering a largely degenerative condition but the condition reflected the plaintiff’s age. He did not consider the degeneration was as a result of a traumatic event and that the plaintiff was likely to have long-term back pain. He considered the plaintiff as no longer fit for heavy manual labour and that he ought to find employment in which he “uses his brain rather than his body”.
20 The plaintiff has not seen Mr Brighton-Knight since mid-2005.
21 In his report of 2 May 2006,[7] Dr Burr noted that the plaintiff had improved slowly with conservative management, although it was clear he could no longer do heavy work. He referred the plaintiff to the Victorian Rehabilitation Centre where he undertook a program to strengthen his back and to provide assistance in his rehabilitation. In his report of 15 September 2006,[8] Dr Burr noted the plaintiff had re-trained into the teaching environment and was managing the work well. He last consulted the plaintiff in November 2007[9] where again it was noted the plaintiff was coping well with his teaching.
[7] PCB 13
[8] PCB 14
[9] PCB 15
22 In a report of 6 September 2006 from the Narre Warren Physiotherapy Clinic[10] it was noted that the plaintiff had attended Mr Chris Schiebold on 25 February 2006.[11] On that date the plaintiff had complained of five weeks of left low- back and sciatic pain.[12] Mr Schiebold treated the plaintiff from February 2005 until September 2006 with an exercise regime to increase muscle bulk over the back and leg.
[10] PCB 19-20
[11] This should read 25 February 2005
[12] According to the clinical records the note refers to 5/12 or 5 months of low-back and sciatic pain
23 The plaintiff did not return to work with the defendant nor Volgren after 1 March 2005. At that time the contract that his employer had with that company ceased. In 2006, he undertook a Level IV training certificate at the Frankston TAFE to qualify him to teach mechanics at secondary school level, and he commenced at a local school in that year working twelve hours per week for approximately five months. At the beginning of 2007, he commenced work as an automotive teacher at Eumemmering Secondary College teaching automotive skills to Years 11 and 12. In that year he also worked as an integration aide on a trial basis. At the present time, he works full-time at the same College (now known as Hallam Secondary College) as a teacher. This involves approximately half time teaching in classrooms, and half time in preparation, meetings and the like. At the end of 2008, he decided to increase his qualification and commenced study for a Bachelor of Education at Victoria University through its campuses at Newport and St Albans. The plaintiff had applied for and been successful in participating in a “change of career program” directed to persons with trade qualifications to enter them to enter teaching. The course commenced in early 2009 and he expects, subject to passing the required examinations, to obtain a Bachelor of Education at the end of 2010. He estimated the salary for a first year teacher at $50,000 to $53,000 gross per year.
24 He accepted in cross-examination that he was interested to better his education and move into teaching which he enjoyed and from which he derived considerable satisfaction from. He stated in histories to various of the medical practitioners, including the general practitioner, Dr Burr, that he was able to cope with the teaching work. He presently teaches on a full-time basis and at the end of each three months attends Victoria University for a week at a time. He is paid as a full-time teacher throughout.
25 He does not have any current medical treatment, and has seen no other specialists or health professionals other than Dr Burr, Mr Brighton-Knight and the physiotherapist. He has not taken any medication, by prescription or otherwise, from the date of the incident through to the present.
26 The consequences of the injury are set forth in the plaintiff’s affidavits.[13] They include the following:
[13] PCB 7-9
•
Constant aching pain in his lower back with some radiation to the left side, the pain being worse in cold weather;
•
An inability to bend and move his back in the same manner as before injury;
•
Difficulty in maintaining one posture for any prolonged period, although he accepted in cross-examination he could drive a car for about an hour without discomfort. He states difficulty in walking on stairs or on uneven ground. Likewise, he has difficulty crouching, squatting or kneeling;
• Difficulty carrying weights over 10 kilograms; • Inability to carry out the heavier aspects of housework; •
His sporting and recreational activities are restricted. In particular, he is unable to play golf as before, nor play with his children;
• Prolonged driving of his motor vehicle causes pain; •
He is unable to enjoy the intimate relationship with his wife as he did before;
•
He claims that the loss of income suffered as a result of his injury has had a significant effect upon his lifestyle. He is not able to pay his mortgage off as he had wished, and his family cannot enjoy entertainment and holidays they would otherwise have been able to undertake.
27 In cross-examination, the plaintiff agreed that he was able to do most things in the garden, save avoiding the heavier lifting. He performed a range of handyman activity. He mowed the lawns, although stated that he did it slower and felt pain and had to lie down afterwards. He accepted the pain was not sufficient to require him to use medication, nor to go to a doctor. Some simple matters such as brushing his teach would cause back pain. He had not had any time away from teaching since he commenced that work because of back pain. He stated that generally he was able to do all the tasks around the house that he did before, but suffered pain as a consequence. He had previously undertaken an exercise program, but was too tired and too busy at the present time to perform those exercises. He noted that the muscle wasting he had observed in 2004 and 2005 had improved, although his left leg was still not the same as his right.
28 The plaintiff agreed that his new career path in teaching was a source of satisfaction.
Medical Evidence
29 I have referred to the opinions of the various treating practitioners. There is no issue between the parties that the plaintiff has “a light work back”. That is, he is not suited to his previous heavy labouring employment, and will be permanently restricted in that regard.
30 The plaintiff was examined by Mr Kevin King, orthopaedic specialist, in January 2009.[14] Mr King noted some mild to moderate limitation in back movement and, having considered the CT and MRI scans of 2005, noted the main changes at L4-5 and L5-S1 where there were small posterior disc bulges without disc prolapse. He said the appearances were consistent with age, occupation and history. Mr King was of the view that the injury of September 2004 was acute, but the plaintiff had made a complete recovery. In relation to the injury of February 2005, the plaintiff had suffered an injury to his lumbar discs and associated ligamentous structures, and that as a result, he had suffered pain from that time to the present in his low-back. Mr King noted the plaintiff was well-motivated and had re-trained as a teacher. He confirmed the plaintiff would be unable to return to unrestricted duties as a motor mechanic, but should be able to continue as a trade instructor into the foreseeable future.
[14] PCB 21-26
31 The plaintiff was examined by Mr Stanley Schofield, orthopaedic surgeon, in February 2009.[15] He obtained a history that the plaintiff continued to complain of low-back pain since February 2005, worse in the mornings, and associated with some stiffness. The plaintiff stated that he was unable to stand or sit for long periods but that his left leg was not painful. The plaintiff claimed he was unable to do the heavier housework or maintenance work. Movement of the spine upon examination was only mildly restricted. Mr Schofield arranged x- rays of his lumbar spine which showed loss of disc height at L4-5. He was of the opinion that the plaintiff had suffered a lumbar disc prolapse at L4-5, also involving the L3-4 level. There was gradual improvement in the plaintiff’s condition. He thought that there was ongoing evidence of radiculopathy in relation to the left leg muscles. He considered the plaintiff had suffered an aggravation of underlying degenerative disc disease in 2004, with an acute aggravation on 1 March 2005 (this should read 24 February 2005). Mr Schofield said the plaintiff was able to work as a trade teacher, but would not be able to return to his previous occupation.
[15] PCB 27-30
32 The plaintiff was examined by Mr David Conroy, surgeon, in March 2007 on behalf of the insurer. He also noted a relatively free range of movements and that the MRI scan showed disc protrusions at L3-4 and L4-5. He considered that the plaintiff had unresolved lumbar intervertebral disc injury with left-sided radiculopathy.
33 On behalf of the defendant, a report of the Victorian Rehabilitation Centre of 14 September 2005[16] was tendered. That report charts the course of the plaintiff’s treatment at the Centre over a four-week period in July 2005.
[16] DCB 15-22
34 Various reports of the vocational assessor, Recovre, were tendered into evidence.[17] Those reports refer to the rehabilitation undertaken by the plaintiff in order to re-train into the teaching profession. The plaintiff was compliant with all aspects of the rehabilitation and I accept without reservation he has made every reasonable attempt to re-train himself.
[17] DCB 27-53
35 The plaintiff was examined by Dr Mary Wyatt, occupational physician, in July 2005.[18] She noted the plaintiff had suffered a disc prolapse with pressure upon the exiting nerve root causing weakness in his left leg. Dr Wyatt’s report is now somewhat dated and not of great assistance.
[18] DCB 54-57
36 Dr James Rowe, occupational physician, assessed the plaintiff in October 2006.[19] He noted a good range of movement in the back and lower limbs. He accepted the plaintiff had clinically and radiologically evidence of disc derangement at L3-4 with some affect upon the fourth lumbar nerve root, causing weakness and wasting of the quadricep. Again, Dr Rowe stated it was not wise for the plaintiff to return to his previous employment, but should be capable of undertaking work as a trades’ teacher.
[19] DCB 58-61
37 Mr Daryl H Nye, neurosurgeon, examined the plaintiff on behalf of the defendant in June 2009.[20] He obtained a history of continuing symptoms of back pain from the incident, aggravated by physical activity and requiring him to perform domestic tasks slower than he had previously been able to do. He noted that the plaintiff had a significant level of degeneration in his lower spine and given the history obtained, he suggested that the L3-4 problem arose in 2004 with a component of L4 radiculopathy, which was consistent with the muscle wasting and weakness that the plaintiff had reported in September 2004. In the February 2005 incident, he considered the plaintiff had suffered an aggravation of the degenerative lumbar disc disease, particularly at L5-S1 consistent with the changes evident on the MRI scan, but without radiculopathy. He considered the plaintiff was able to work as a teacher on a full-time basis.
[20] DCB 66-69
Submissions on Behalf of the Plaintiff
38 Mr Smith pointed to the fact that over the period since injury in 2005, the plaintiff had suffered a significant loss of earnings. He assessed this as in the range of $15,000 to $20,000 per year. Even if the plaintiff was to complete his Bachelor of Education at the end of 2010, Mr Smith submitted that even accepting the plaintiff’s assessment of a starting salary at $50,000 to $53,000, this was still below what the plaintiff could expect to earn in labouring. His earnings to the end of June 2005 were $50,000 gross. As a result, and in accordance to the plaintiff’s affidavit,[21] that loss of income had a significant effect upon the plaintiff’s lifestyle. He was unable to pay off the mortgage on his house as he would wish, and there was a restriction in the recreational activities his family was able to enjoy.
[21] paragraph 5 of the affidavit of the plaintiff sworn 23 October 2009 at PCB 11
39 Further, said Mr Smith, the plaintiff was sufficiently upset and frustrated in not being able to work as a labourer that he required psychological treatment. His relationship with his wife was affected, particularly their intimate relationship.
40 Of most significance, said Mr Smith, was the range of consequences set forth in the plaintiff’s affidavit sworn 23 October 2008.[22] These consequences alone reached the “very considerable” level as required by the authorities, submitted Mr Smith.
[22] paragraphs 9-18 at PCB 7-9
Conclusion
41 I found the plaintiff an honest and straightforward witness. His credibility is enhanced in that he has undertaken a comprehensive rehabilitation program to train himself into a quite different area of employment as a teacher. I accept the medical opinion which suggests that he is able to work full-time as a teacher, and accept the plaintiff’s evidence that he enjoys teaching and it provides him with a new challenge.
42 I am satisfied that in the incident of February 2005 the plaintiff suffered an aggravation of an underlying degenerative disease in his lower spine. The incident of September 2004 was not a matter of significance given the plaintiff received very little treatment, and was able to maintain full-time heavy duties in his employment from that time until February 2005. In September 2004 the plaintiff did notice some wasting of his left leg and it would appear, particularly given the opinion of Mr Nye,[23] that the plaintiff was likely to have had a problem at L3-4 with some L4 radiculopathy at that time which caused muscle weakness and wasting. However, in terms of the consequences to the plaintiff, they were minor at that time.
[23] DCB 68
43 In February 2005, as a result of the aggravation in the lifting incident, the plaintiff suffered ongoing pain in his lower spine which has persisted in varying degrees to the present. The plaintiff’s complaints of pain are supported by the findings upon radiology and particularly disc protrusions at L3-4 and L4-5 with some displacement of the exiting nerve roots at those levels.
44 I accept the opinion of all the medical witnesses that the plaintiff would be unable to return to any labouring duties, but that he is well suited to, and capable of undertaking all the tasks of a teacher. I accept on balance that it is likely the plaintiff will complete his Bachelor of Education and be able to teach in an expanded role after he completes his degree in 2010. This will lead to a significant improvement in his pay structure.
45 It is clear, however, that the plaintiff is able to undertake a range of domestic and social activities, in particular he is able to do all of the maintenance and gardening work around the house that he enjoyed before the injury, although I accept that this takes longer than before, and results in some pain. The pain, however, is not sufficient to deter him from these tasks, nor seek treatment. Of particular significance, in my view, is that the plaintiff has had no treatment from his general practitioner since 2007, and no intervention from specialists since 2005. He currently does not have any physiotherapy nor associated treatment. He has taken no medication whatsoever since the incident. There is no evidence that he is unable to take medication because of any side- effects or the like. I conclude that the reason he has no current treatment, nor medication, is that the pain he suffers is not sufficient to warrant it.
46 Further, there is no medical opinion to suggest that at any time in the future the plaintiff is likely to require further treatment, either by surgical intervention, or conservative management.
47 The plaintiff is able to drive his motor vehicle generally without difficulty. He drives to and from work, and longer distances when he attends university. The muscle wasting which occurred from September 2004 has improved with the exercise program he has undertaken over the years. He is able to lift weight up to 10 kilograms without difficulty. He has attempted to return to golf, but has found himself unable to complete a round. However, upon his own admission, he was only a “weekend hacker” before the subject incident, and I do not perceive the loss of his interest in golf as being an issue of real substance in his life. He has had no time away from his teaching duties over the last several years because of any back problems.
48 In Sumbul v Melbourne All Toya Wreckers Pty Ltd,[24] Chernov JA said:
“…If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’. …”
[24] [2006] VSCA 292, at paragraph 24
49 However, as was said in Stijepic v One Force Group Aust Pty Ltd & Anor,[25] whether a worker returns to work in alternative employment is not determinative against whether he or she has achieved the “very considerable” level in terms of pain and suffering. It is only one matter to be taken into account, albeit a significant one.
[25] [2009] VSCA 181, at paragraph 47
50 Pain of itself, if on a continuous and debilitating basis, can be a very considerable consequence of injury. While I accept that the plaintiff does suffer ongoing pain in his lower spine, it is not sufficient to prevent him undertaking a whole range of activities of a domestic nature, and does not restrict him in any way in his current employment. Of significance is that such pain is not sufficient to warrant the plaintiff seeking medical treatment or medication.
51 I bear in mind the comments of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No2)[26], where His Honour referred to workers prepared to put up with pain, and get on with life, being treated less favourably than others with less fortitude. While I accept the plaintiff as an honest person, not making the most of his injuries, nonetheless, the pain he suffers and the consequences to him of the injury I do not assess, bearing in mind other cases in the range, as being beyond significant or marked.
[26] [2008]VSCA 260 at paragraph 3
52 I am not persuaded by the argument posed by Mr Smith that the plaintiff’s loss of earnings constitutes a significant consequence to him. While I accept in general terms the plaintiff has not earned the same wages since 2005 as he would have done absent the injury, he agreed in cross examination that the employment at the time was not ideal and I am not satisfied he would have continued in that employment. Further, the assessment of economic loss was cursory and without any real analysis of the precise loss. I was uncertain whether and to what extent the plaintiff had received weekly payments under the Act. The plaintiff, on the presumption that he will complete his Bachelor of Education in the next year or so, will be entitled to a higher wage structure and there would seem little difference in the wages of a labourer at the present time and a teacher, although again there was no comprehensive financial analysis. Further, in my view, the loss of earning capacity falls to be analysed under S134AB(38)(e) and (f) and thus as “pecuniary loss damages”, rather than as “pain and suffering damages” under S134AB(37).
53 Given the matters to which I have referred, I am not satisfied that the consequences to the plaintiff of the incident of February 2005 are sufficient to reach the “very considerable” level in respect of pain and suffering. Accordingly, the plaintiff’s application fails. I shall make consequent orders.
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