Vasjuta v CSR Limited; Vasjuta v Grain Corp Pty Ltd
[2011] VCC 277
•17 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-02567 Case No. CI-07-03394
| STEFAN VASJUTA | Plaintiff |
| v | |
| CSR LIMITED | First Defendant |
| - and - | |
| STEVE VASJUTA | Plaintiff |
| v | |
| GRAIN CORP PTY LTD | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22, 23, 24 and 25 November 2010 |
| DATE OF JUDGMENT: | 17 February 2011 |
| CASE MAY BE CITED AS: | Vasjuta v CSR Limited; Vasjuta v Grain Corp Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 277 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R J Meldrum QC and | Clark Toop & Taylor |
| Mr A Hill | ||
| For the First Defendant | Mr P Elliott QC and | Monahan & Rowell |
| Mr PJ Ginnane | ||
| For the Second Defendant | Ms M Britbart | Herbert Geer |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the first defendant between June and August 2003 (“the first period”) and with the second defendant between 9 and 12 December 2003 (“the second period”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon three affidavits. He was cross-examined. Mr Han, orthopaedic surgeon, and the plaintiff’s general practitioner, Dr Abuel, were required for cross-examination. Professor Thomson was required for cross- examination by the first defendant.
6 In addition, all parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
7 The plaintiff is aged sixty two, having been born in the former Yugoslavia on 26 April 1948. He presently lives with his adult son in St Albans.
8 The plaintiff migrated to Australia at the age of three and was educated to Year 9 at St Albans High School. After leaving school, he did three years of an apprenticeship as a fitter and turner but did not obtain his qualification. He then did labouring work. Over the years since, the plaintiff has done mostly manual or factory work.
9 From July 1994, the plaintiff was employed by the first defendant. Initially, the plaintiff worked in Queensland at its sugar storage and baggage plant. In late 2002, he decided to move to Victoria to be closer to his children, and transferred to the first defendant’s premises at Yarraville.
10 In cross-examination, the plaintiff was asked about an injury to his back in July 2000. He explained that he did not go ahead with a claim relating to that injury because he did not need to because it came good and he did not have any time off work.
11 In his first affidavit, the plaintiff deposed he had done heavy work over the years and his work with the first defendant could be heavy at times, as it involved bagging sugar and the like. The plaintiff deposed that by August 2003, he had had enough of working for the first defendant and he accepted a package. His plan was to have a rest and then move back to Queensland. However, his children wanted him to stay in Victoria, so he decided he would return to Queensland in early 2004.
12 The plaintiff initially deposed that he finished employment with the first defendant on 29 August 2003. A few days later, on 1 September 2003, he awoke with severe low back pain. He saw Dr Abuel, who sent him off for an x-ray and a CT scan.
13 At that stage, the plaintiff was having back pain and very mild and occasional left leg pain. Dr Abuel sent him to see a neurosurgeon, Mr Han, whom the plaintiff attended in late September 2003. He was advised by Mr Han to continue his conservative treatment and that hopefully with rest his symptoms would settle. The plaintiff had physiotherapy treatment and his symptoms did indeed settle.
14 The plaintiff initially deposed that with rest his symptoms did settle. He then took a job with the second defendant.
15 In his second affidavit in the proceedings relating to the first defendant, the plaintiff gave a slightly different account of these matters.
16 The plaintiff deposed, that whilst working for the first defendant in Queensland, he sometimes had a niggle in his back but he did not put in a claim, nor did he lose any time off work.
17 The plaintiff explained in some detail the work he did with the first defendant at Yarraville from December 2002 to 29 August 2003. He described having a lot of trouble operating an automatic bagging machine. He also had to shovel the sugar into a skip and that task was difficult and hard. He had to pick up very heavy bags of sugar and empty the contents into a skip. It was difficult to pull and manoeuvre the bags in the reject chute, as it sometimes jammed. Further, the palletiser would go out of sync and the plaintiff had to pick up the bags and put them onto the pallet.
18 The plaintiff deposed he complained the machine was not operating correctly and his supervisors knew about it. In fact, he and other workmates were sent to an expo because they were having so many problems with the machine.
19 The plaintiff was also required to clean out the hull of a ship by shovelling sugar and gypsum into heaps for the bobcat and he was also required to scrape the ship’s hull.
20 Because of the heavy work with the first defendant, the plaintiff started to become very stiff in the morning, although he thought it might have been because of the cold weather. He was having problems with his back and problems with the lifting and the faulty machine. His back problem was worsening and he decided to quit work and take a package.
21 In cross-examination by counsel for the first defendant, the plaintiff explained there was more detail of his work duties in the second rather than the first affidavit, because he “did not like whingeing to people”. He agreed that that if the machines were working properly, there was not a great deal of lifting or physical work with the first defendant.
22 In cross-examination by counsel for the second defendant, the plaintiff confirmed the heavy nature of his work with the first defendant. Often the machines did not run properly and he was required to lift heavy items and he was in the ship’s hold for hours at a time, working at a rapid rate
23 In his second affidavit, the plaintiff repeated details of his treatment at that time, confirming he had physiotherapy and his symptoms settled down.
24 Further, he deposed that with rest, his symptoms did “settle a bit” and he then took a casual job with the second defendant.
25 In cross-examination by counsel for the first defendant, the plaintiff disagreed he used the expression “settled a bit” to bolster his claim against the first defendant.
26 The plaintiff confirmed he knew the claim procedure and did not put in a claim whilst with the first defendant. Throughout October/November 2003, he was looking for work and he then took a casual job with the second defendant.
27 The plaintiff agreed with counsel for the first defendant that he would not have gone to work for the second defendant if he had a bad back, knowing from previous experience grain work was heavy.
28 In cross-examination by counsel for the second defendant, the plaintiff agreed that his work with the first defendant was heavy. The machines often did not work properly and he was required to lift heavy loads. Further, he had to work in the ship’s hull for hours at a time at a rapid rate.
29 The plaintiff agreed that his back symptoms seemed to be getting gradually worse between June 2003 and when he took the package. Some days he would be a bit stiffer than others but it never stopped him from going to work or doing his work. He did not really have pain as well as stiffness.
30 The plaintiff confirmed it was these symptoms that made him decide to volunteer for a redundancy package. He did not feel the work he was doing was too much for him physically. It was the symptoms plus the cold weather.
31 The plaintiff was not thinking of redundancy. He did not think his back was that serious and that it might go away until he woke with severe pain on 1 September. He confirmed he was in so much pain that day that he could not walk. The plaintiff confirmed that for the whole of September he had been having continuous pain in his lower back and some pain in his left leg.
32 The plaintiff thought he possibly had four physiotherapy treatments during September and October and he was given exercises which he did at home.
33 Near the end of November, he felt good, like he was ready to work. He thought it was possible he might have gone to another physiotherapist in November. He did exercises in the pool in October.
34 The plaintiff thought it was possible he was having central low back pain in November 2003, possibly early November, when he saw a physiotherapist. The plaintiff agreed he was having back pain but he did not know if it was in early November 2003. He could recall tenderness in his lower back in October but it could be possibly November if that is what the physiotherapist’s report said.
35 The plaintiff then said he thought symptoms had gone, that is why he applied for the job with the second defendant and that is why he thought it was okay to go back to work.
36 In both affidavits, the plaintiff described his job with the second defendant at its Mitiamo wheat bunker. It was casual work and he was paid $18.12 per hour. His plan was to work out the season, spend Christmas with his children, then seek work in Queensland with a friend who was involved in a dam building project in Bundaberg, where the plaintiff thought he might get a job as a truck driver or the like on the dam project.
37 In both affidavits, the plaintiff deposed that he started work with the second defendant on 9 December 2003 working twelve-hour days. It was heavy work shovelling grain, lining the bunkers with plastic, putting grain into bunkers, handling sandbags and covering grain with tarpaulins.
38 The plaintiff deposed in both affidavits that on 12 December 2003 he had to handle rolls of black plastic on his own and he had to use sandbags to place on top of the plastic so it would not blow away. He also had to assist with pulling tarpaulins over the grain to protect it from moisture. This task was a struggle due to the wind. In re-examination, the plaintiff said he had to run the tarp over 150 metres in the bunker.
39 When the plaintiff finished work that day, he noticed some stiffness in his back but thought nothing of it. He was due to work the following day. By the following morning, the plaintiff had severe low back and severe left leg pain and was unable to work.
40 In cross-examination by counsel for the first defendant, the plaintiff confirmed the heavy nature of his work with the second defendant.
41 In cross-examination by counsel for the second defendant, the plaintiff agreed that on occasion the job with the second defendant was lighter than with the first defendant, but he had to fill bags with sand and place them onto the tarps so the wind would not blow them.
42 More than one day before he had to lay a tarp over the wheat. He thought they covered on the Thursday night as well. There was only one vehicle, not two vehicles, pulling the tarp, as Mr Drury suggested.
43 In his second affidavit, the plaintiff deposed that since December 2003, he had tried to work as a traffic controller, working about seven or eight days in a six-week period in 2008, but he was unable to continue as his back was sore due to standing for long periods.
44 In both affidavits, the plaintiff deposed that the pain in his back and leg from work with the second defendant was much more severe than any pain he had previously had. In particular, he had never had leg pain like that before.
45 In cross-examination by counsel for the first defendant, the plaintiff agreed he was in a much worse condition when he saw Dr Han again in December. He agreed he just had a bit of stiffness in his back after a hard day’s work when he worked for the first defendant, but in December there was severe pain going down his leg.
46 After the plaintiff ceased work with the second defendant, he returned to see Dr Abuel. The plaintiff was again sent off for a CT scan and referred back to Mr Han, who then told the plaintiff he required surgery.
47 On 20 February 2004, the plaintiff underwent a lumbar laminectomy and discectomy performed by Mr Han (“the first operation”). The first operation gave the plaintiff some short term improvement with back and leg pain, however, the pain returned.
48 The plaintiff continued to see Dr Abuel. He had several referrals with Mr Han, including attendances for epidural injections in June 2004, February 2005 and September 2005. Eventually the plaintiff accepted Mr Han’s advice that he required further surgery.
49 In May 2006, Mr Han operated to perform disc implants at two levels in the plaintiff’s spine (“the second operation”).
50 The second operation gave the plaintiff some improvement in his left leg pain, but did not completely cure the pain. It did not give him a great deal of improvement in back pain.
51 In January 2007, the plaintiff attended Mr Han, who gave him the option of having a spinal fusion. The plaintiff understood that was a traumatic procedure. From his discussions with Mr Han, it was the plaintiff’s understanding that it was his choice as to whether he could put up with his current level of pain or undergo more surgery, with no guarantee that he would be any better off after that surgery. The plaintiff will be looking out for new treatments as they come along.
52 Other than review with Mr Han, the plaintiff continued to see Dr Abuel on a regular basis for WorkCover certificates.
53 The plaintiff lodged a Claim for Compensation after the incident on 12 December 2003. The claim was accepted and he received weekly payments and medical expenses. His payments were terminated in late 2005.
54 The plaintiff had some physiotherapy treatment at Spotswood Health Clinic which had stopped as of early 2007. Later that year, he was referred to Living Well to have physiotherapy, which he had for his back twice, but it did not help and in fact made his condition worse.
55 Dr Abuel prescribed Tramal, Panamax or Panadol, as well as sleeping tablets from time to time. The plaintiff took Tramal every other day. In the past, he was prescribed Mobic, but that caused stomach problems, for which he took Zantac.
56 The plaintiff now sees Dr Pham at the Guardian Medical Centre in Highpoint Shopping Centre once a month.
57 Dr Pham prescribed Tramal, 150 milligram tablets, in 2008 and 2009 as a result of the plaintiff’s constant back pain. The plaintiff had to stop taking this slow release medication in early 2010 for a few months because it made him nauseous. He was then put on Panadol Osteo and a reduced strength Tramal tablet which he thinks is 50 milligrams.
58 The plaintiff takes the 150 milligram tablets but he does not do so all the time, as he tries to avoid taking medication unless his back pain is bad. He also continues to take Panadol Osteo and tries to alternate this painkiller with Tramal.
59 In a bad week, the plaintiff may take up to seven or eight Tramal. In an average week, he takes one tablet four days per week in the evening. On a bad day, he could take two tablets of 150 milligrams Tramal in the day, but that happens only occasionally.
60 The plaintiff prefers to take Tramal at night as it makes him slow and tired. The 150 milligram dosage gives him significant relief of back pain and much more relief than Panadol Osteo which makes him slow and tired. In addition, the plaintiff takes Panamax for back pain and he also takes Zantac for indigestion.
61 Mr Han organised an epidural injection by MRI scan, which was carried out at St Vincent’s Hospital early in 2010. This procedure did not help the plaintiff’s pain. Mr Han then told the plaintiff the only thing he could potentially do to help the pain was fusion surgery, but there was no guarantee it would improve the plaintiff’s situation.
62 In both affidavits, the plaintiff deposed he has constant ache in his back and the pain fluctuates. He also gets some occasional left leg pain. The pain in his back and left leg is made worse if he sits, stands or walks for too long.
63 The plaintiff’s sitting, standing and walking tolerances depend upon whether he has had a good or a bad day. Those tolerances fluctuate from somewhere between ninety minutes on a good day through to thirty minutes or less on a bad day. Even on a good day, there is still pain.
64 In his viva voce evidence, the plaintiff described his present situation as a constant ache in his back, going down into his left calf. Some days he is not too bad and the pain is dull, but other days he even has trouble just straightening his back when he gets out of bed. The pain also wakes him at night, if he twists in bed the wrong way. Normally he gets up, takes a Tramal and goes back to bed. He also tries to go for a walk every morning and this helps loosen his back somewhat.
65 The two operations have not really taken his leg pain away. He still gets pain but it is not constant and not as severe. The major part of his pain is in the lower back and it goes down the calf on the left
66 In both affidavits, the plaintiff deposed he is restricted in a range of day to day activities. His son helps out with the housework and gardening and both his children have been a great help since he suffered injury.
67 The plaintiff does his shopping for himself whenever he needs to. He does his own cooking. He does the minimal amount of cleaning that he has to and his son does his own. He vacuums on a good day, if he is having one, and the situation occasionally is that he has good and bad days when he can do something, but if he is in pain then he does not feel like doing anything and just lets it sit.
68 There are remnants of an old garden but he does not garden or go out and pull up a weed.
69 Prior to suffering the injury, the plaintiff enjoyed fishing and travelling. Since then, he has tried to go fishing but it is difficult as he struggles to walk to fishing spots or to sit to fish. It is also difficult to go fishing because he has difficulty sitting in a car and he avoids longer car trips.
70 In general, the plaintiff is less social than he was before injuring his back. If he is in pain, he simply does not feel like socialising.
71 The plaintiff’s granddaughter is three. He cannot pick her up because of his back injury and he is concerned that will aggravate his back pain. In re- examination, the plaintiff confirmed he was able to lift his arms above shoulder height. He could possibly lift his granddaughter if he did it carefully.
72 Before he injured his back, the plaintiff went fishing weekly with friends, travelling virtually all over Victoria on fishing trips. The plaintiff only goes very occasionally because he cannot sit for long and cannot drive far without a significant increase in back pain. The plaintiff also avoids driving when taking Tramal because it affects his concentration. He occasionally goes fishing on the Goulburn or somewhere like that. He drives there and he has been camping, just staying overnight. He goes with friends or his son.
73 Surf fishing was previously his favourite pastime. He does not go surf fishing anymore as he cannot use the large surf rod because of his back pain. He is also constantly wary about his pain and is concerned about causing any more damage or pain.
74 The plaintiff drove himself to Queensland in his current vehicle in 2005, staying there for two weeks. It took five days to drive there and back. He has also gone fishing near Hay, a trip of about seven hours. He has been camping and fishing to Seymour and Moe six or sevens times.
75 The plaintiff used to go gold and gem fossicking with friends but he does not do this any more. He cannot bend because of his back and it makes fossicking impossible.
76 The plaintiff owns a VW transporter which he uses as his normal car. On most days he gets up in the morning, goes for a walk and gets the paper and that helps to get the stiffness out of his back. He then has breakfast and goes down the shops or to see his daughter or brother.
77 When the case is over the plaintiff plans to move from Melbourne.
78 Because of his back injury, the plaintiff cannot return to any of the heavy jobs he has done in the past. The only job that he had done, which was not a heavy manual job, was when he tried to run his own business in Bendigo in a shop selling puzzles and games. The business was not successful.
79 The plaintiff does not have computer skills, nor does he have a computer at home. A while ago he tried to do a computer course but did not really get much out of it. He thought perhaps he could do some form of sales job that did not involve the use of computers, or involve any prolonged standing, sitting or lifting, but he was not sure whether he could find such a job.
80 In his second affidavit, the plaintiff mentioned the traffic controller’s ticket he obtained in July 2007. He worked with Multiplex for two days and Fillcon for four days, directing people around film sites. However, he found he could not do this type of work because he had severe pain in his back going down his left leg. The pain became worse with prolonged standing and having to move signs.
81 The plaintiff registered with Centrelink in February 2009 and he was sent to CRS Limited (“CRS”). The plaintiff later registered with another employment agency, Match Works. It was unable to find him a job whilst he was totally unfit.
82 The plaintiff has wanted to work and made application for jobs that did not involve physical work. He has looked for work himself and with the assistance of CRS but has been knocked back for numerous jobs.
83 The plaintiff has always worked in a physical capacity. He now cannot stand for long or sit for long because of his back pain. He cannot move heavy or cumbersome items.
84 The plaintiff is not looking for a job at the moment. There is not much he can do about getting a job. He has been on a disability support pension since late 2008.
85 The plaintiff does not think he could do a sedentary job sitting down. He could not work on a production line because if he took Tramal or painkillers he cannot concentrate.
Other Problems
86 In his first affidavit, the plaintiff mentioned that whilst working for the first defendant, he had a bit of a sore elbow at one stage. In more recent times, he had been treated for a tennis elbow type condition. He has also had some examinations of his shoulders as they had been aching and he had two steroid injections. He had some pain in his right foot. The plaintiff deposed at that stage, however, none of those injuries were of any consequence when compared to his back injury.
87 In his second affidavit, the plaintiff also added that he had left elbow and shoulder pain in May 2003. He saw the first defendant’s doctors who prescribed medication but he did not have any time off work at that time and he continued his normal duties.
88 In about May 2005, the plaintiff started to get problems in his right elbow and right shoulder and had four injections in each shoulder. He also had an ultrasound and saw a rheumatologist.
89 The plaintiff deposed that he had pain in his right shoulder and some restriction of movement, and also pain in his left shoulder. He also had pain in both elbows, which was worse in the cold weather. However, it was the back injury stopping him from working.
90 His shoulders get very painful and he has trouble lying on the right side. He could not get his arms up above his head. The pain is in the front of his shoulder, upper chest, into his right shoulder. He is not getting any treatment in this regard and the last time he had any treatment would have been 2007 or 2008 when he had an injection.
91 In cross-examination by counsel for the second defendant, the plaintiff accepted his right shoulder remained an issue today and he was still having problems. He agreed if he tried to lift too much or put too much on his arm, it would hurt his right shoulder. He was advised by the specialist to do swimming and not to lift or to continuously use his right shoulder. He thought it was possible there were some restrictions attached to his right arm with a lifting restriction of five kilograms.
Summary of the Plaintiff’s Earnings
Financial Year Gross Earnings 1999 $46,240.00
2000 $47,001.00
2001 $41,376.00
2002 $45,389.00
2003 $62,454.00
2004 *$51,592.00
2005 *$37,195.00
2006 *$22,398.00
* Including WorkCover and Centrelink payments
The Plaintiff’s Medical Evidence
92 Dr Abuel reported in July 2005 that she saw the plaintiff on 1 September 2003 when he presented with low back pain caused by heavy lifting and aggravated by prolonged standing at work. The plaintiff also had pain down his left leg. He denied any “pins and needles” or numbness in his legs. His bowel and bladder functions were normal.
93 Dr Abuel noted the x-ray of 15 December 2003 and the fact that the plaintiff was seen by Mr Han in September.
94 Dr Abuel reported that in December 2003, the plaintiff developed left-sided sciatica after starting the new job. She considered the CT scan revealed a new disc prolapse at L4-5 on the left impinging onto the exiting nerve root. The plaintiff’s symptoms deteriorated. An MRI scan was organised revealing large disc prolapse at L4-5 on the left impinging on the L5 nerve root, and the plaintiff underwent surgery in February 2004, after which his left-sided sciatica improved.
95 A few weeks after surgery, the plaintiff presented with low back pain and the MRI scan revealed scar tissue. He had an epidural injection on 14 June 2004, with some relief. In February 2005, he had another injection because he continued to have left calf pain.
96 Dr Abuel noted that a follow up MRI scan in April 2005 only showed scar tissue at L4-5 with a small foraminal disc which was not compressive and no further surgery was indicated at that time.
97 In her most recent report dated 5 April 2007, Dr Abuel noted, after the second operation, the plaintiff was still having ongoing lower back pain, sometimes radiating to the left lower extremity. He described a constant ache, worse on some days. He also complained of pain in both shoulders.
98 Dr Abuel noted that in September 2006, the plaintiff suffered from anxiety, panic attacks and symptoms of depression, and he had counselling.
99 The plaintiff told her he had about a fifty per cent improvement in his back pain since the second operation and that he was actively looking for part time employment. She thought the plaintiff could do a job that did not require heavy lifting, prolonged sitting, bending or walking.
100 Dr Abuel was required for cross-examination.
101 She first saw the plaintiff on 1 September 2003. At that time she recorded:
“Lower back pain since morning aggravated by standing for a long time.
Flexion and extension okay, lower limbs okay.”
102 There was no mention of the plaintiff’s work in that note.
103 On 15 September 2003, the plaintiff complained of lower back pain and straight leg raising was reduced due to pain. Dr Abuel requested a CT scan and advised the plaintiff to continue with Feldene gel and Panadol.
104 On 19 September 2003, the results of the CT scan were explained to the plaintiff. He was told that he had disc problem with degenerative disease like osteoarthritis, and Dr Abuel referred him to Mr Han.
105 Dr Abuel agreed there was no mention in any of the five entries up to 19 September 2003 of any work involvement in the plaintiff’s condition.
106 In her referral to Mr Han, Dr Abuel described lower back pain, CT scan disc problems, degenerative arthritis and facetal osteoarthritis. She explained there was no mention of a work injury because by that time the plaintiff had resigned from his job.
107 There were two entries in December 2003. One read:
“Complained of lower back from heavy lifting at work radiating to thigh
and leg. Past history of osteoarthritis of facet joints. Given Mobic.”
108 On another date in December 2003, it was noted that an x-ray of the lumbar spine was requested. Mobic was increased.
“History of moderate posterior disc bulge, advised to change job that
does not require heavy bending and lifting.”
109 Having received a request from the plaintiff’s solicitors for a report in respect of injuries sustained by the plaintiff on or about 12 December 2003, Dr Abuel thought that she could have made a mistake when she reported that the plaintiff presented with lower back pain in September 2003 and that she was referring in fact to December. She thought she had made a mistake, because when she first saw the plaintiff he was not working any more.
110 Dr Abuel’s evidence was totally unclear and I place no reliance on it as to the September/December 2003 date because clearly a referral was made to Mr Han in September 2003, at which time he was aware of a work involvement in the plaintiff’s injury.
111 Mr Espedido saw the plaintiff in September 2003 for low back pain which had settled after a few treatments. In December 2003, when the plaintiff attended Mr Espedido, his symptoms were more severe. The plaintiff reported pain into his left leg with numbness into his left foot.
112 The plaintiff attended Spinal Management Clinics of Victoria for physiotherapy treatment in November 2003. On 5 November 2003, he was treated for low back pain by Mr Espedido.
113 It was noted that the plaintiff previously had an episode of low back pain in September 2003. He was given painkillers and referred for CT scan. He was sent by a specialist for physiotherapy, where he was treated four times, with some improvement.
114 Based on the plaintiff’s clinical presentation, it was noted that he presented with disc derangement of the lumbar spine and that his prognosis was good. The last review was on 7 November 2003.
115 The plaintiff first saw Mr Han on 26 September 2003 on referral from Dr Abuel. The plaintiff told Mr Han that he had had recently stopped working for the first defendant, in a job which involved quite a lot of heavy lifting. Unfortunately, having stopped work, the plaintiff developed low back pain and pain across his lower back. Occasionally the plaintiff had pain down the left leg, but that was not severe. He denied any “pins or needles” or numbness in his legs.
116 Mr Han noted that a CT scan of the lumbar spine revealed evidence of degenerative changes, especially at L4-5 and L5-S1. At L5-S1, there was a mild central disc prolapse, but that was not depressing neural structures.
117 At that stage, Mr Han did not recommend surgery, given that the plaintiff only had mild changes on CT scan and the pain was predominantly in his lower back. Physiotherapy was suggested and no further review was arranged.
118 The plaintiff next saw Mr Han on 6 January 2004. The plaintiff had then developed left-sided sciatica, which Mr Han noted was new, in the last two weeks after starting the new job.
119 Mr Han noted the CT scan had revealed a new disc prolapse at L4-5 on the left, impinging on the exiting nerve root.
120 Mr Han asked the plaintiff to continue with current pain management and requested an MRI scan which revealed a large disc prolapse at L4-5 on the left impinging on the L5 nerve root.
121 On review on 13 January 2004, Mr Han advised the best option would be to consider surgery. On 20 February 2004, the plaintiff underwent a left-sided L4-5 laminectomy and discectomy (“the first operation”).
122 On 1 March and 2 April 2004, the plaintiff noted significant improvement with his left-sided sciatica. On the later date, the plaintiff had a burning sensation on the lateral aspect of the left leg and he also had ongoing back pain.
123 In May 2004, Mr Han sought approval for a follow up MRI, noting the plaintiff had had a recurrence of pain after the first operation.
124 On 18 May 2004, Mr Han noted the plaintiff had recurrence of left-sided sciatica, but following the last consultation his pain had improved.
125 Mr Han thought the new MRI scan revealed only scar tissue on the previously operated site, and there was no significant recurrent disc prolapse at all. He reassured the plaintiff of the findings and that he did not require any further surgery and asked the plaintiff to continue with light exercises.
126 On review on 30 June 2004, the plaintiff had a recurrence of left-sided sciatica. Mr Han then thought consideration of an epidural injection was appropriate.
127 Having undergone this injection, the plaintiff was reviewed on 11 August 2004, when the plaintiff noted some improvement. However, he could not sleep well at night. He had intermittent back pain and left-sided sciatica, particularly at the end of the day. Overall, the plaintiff felt his condition was on the improve and he was encouraged by Mr Han to walk fifteen to twenty minutes a day. A three months’ review was arranged. Mr Han thought the plaintiff was not fit to work at that stage.
128 On review on 17 November 2004, the plaintiff advised he was walking up four kilometers per day and feeling great. He had some dull ache in his back and occasionally in his left thigh, but that was relatively minor.
129 Mr Han noted the plaintiff was currently doing a computer course to attempt to change his job. Mr Han thought that was a good idea, as the plaintiff should avoid heavy work at all costs.
130 In his extensive report dated 11 January 2005, Mr Han noted the plaintiff was involved in a work-related injury with the first defendant. The plaintiff claimed that his work involved repetitive bending and twisting to his lower back and he had injured his back as a result. He had to stop work because of his pain. He complained of pain across the lower back. Occasionally he had pain down his left leg.
131 On re-examination on 6 January 2004, the plaintiff complained of severe pain down his left leg. The plaintiff felt there was a significant change compared to the earlier examination. This pain had occurred when he returned to work and the injury occurred on 16 December 2003. The CT scan showing a new disc prolapse was noted.
132 Mr Han concluded that the plaintiff allegedly suffered low back pain and left- sided sciatica during the course of his employment, noting that he worked for the first defendant in a job involving heavy lifting and turning of his lower back.
133 Mr Han considered the plaintiff had no capacity for his pre-injury employment but had a capacity for suitable lighter employment with restrictions.
134 Mr Han requested liability for a further epidural injection on 2 February 2005.
135 On review after that procedure on 29 March 2005, the plaintiff advised that it had helped him significantly; however, he continued to have pain over the left calf. Mr Han arranged another MRI scan to find out the cause of that pain. This scan showed scar tissue at L4-5 associated with a small foraminal disc which was not compressive. Mr Han did not think further surgery was indicated.
136 On 3 May 2005, the plaintiff complained of ongoing back pain and left-sided sciatica, but he was able to walk two or three kilometers a day. Approval was sought for another epidural injection on 21 July 2005.
137 Mr Han referred the plaintiff to Ms Lomas of the Spotswood Health Group to assist with reducing scar tissue in the previously operated region and also to improve strength in the plaintiff’s foot.
138 Given the findings of the most recent MRI scan and the failure of conservative treatment, Mr Han thought, as of March 2006, the plaintiff warranted a further operation and he proposed to perform lumbar decompressive surgery, removal of scar tissue, and an insertion of interspinous distracter at L3 and L4.
139 A lumbar decompression insertion was carried out on 15 May 2006 (“the second operation”).
140 On review on 30 June 2006, the plaintiff reported increased back pain since the second operation and also some left-sided sciatica. A recent CT scan showed really no major complication.
141 Mr Han then advised the plaintiff should avoid repetitive bending and twisting and should not go back to work until his pain settled, which could be within three to six months.
142 On examination on 1 September 2006, the plaintiff reported continued improvement of left-sided sciatica, but some degree of back pain which also had begun to improve. Mr Han suggested acupuncture.
143 On examination on 31 January 2007, the plaintiff complained of ongoing low back pain and bilateral sciatica and claimed to have bursitis in his shoulder requiring steroid injection. Overall, the plaintiff’s condition was stable and Mr Han recommended he continue with physical therapy. Mr Han then thought the plaintiff had no capacity for work.
144 On 22 June 2007, Mr Han advised that the plaintiff’s condition had stabilised where he could lift objects to ten kilograms and sit for as long as he liked to comfortable levels and that he might have to change his body posture from time to time.
145 Mr Han provided a report commenting on Professor Thomson’s report of 30 April 2007, in which he concluded there was no change in the back injury between the September 2003 CT scan and the January 2004 MRI scan.
146 Noting the September 2003 and January 2004 attendances with him, Mr Han believed the plaintiff had two separate injuries to his back and both contributed to his back condition.
147 Mr Han explained that on the first examination, the main problem the plaintiff experienced was in his back with pain radiating across his buttock and lower back. Occasionally he would have pain radiating down the left leg, but that was not the plaintiff’s major concern. There was normal sensation in his lower limbs and there was no evidence of “pins and needles”.
148 On the January 2004 examination, the plaintiff mentioned he had developed severe excruciating left-sided sciatica secondary to an injury in December 2003. He did not have any numbness or “pins and needles” in his leg. His leg pain was severe and certainly more so than his lower back pain.
149 Mr Han noted that, on the first examination, the predominant injury was localised to the plaintiff’s lower back, with the occasional radiation down the left leg, but in December the plaintiff developed severe left-sided sciatica with leg pain more severe than back pain.
150 Comparing the September and December 2003 CT scans, Mr Han
commented:
“Certainly there had been disc degeneration and prolapse of L3-4, L5 and L5-S1 levels. The disc prolapses at L3-4 and L5-S1 were relatively mild without any significant nerve root impingement. There had not been any significant change in the two scans of the discs at L3-4 and L5-S1 levels.”
151 Mr Han believed there had been a slight deterioration of the disc at L4-5 on the December scan, compared to the September investigation. He noted whilst the quality of the images was poor, he believed there had been an increase in the density of the lateral recess at L5 on the left side, which was suggestive of a sequestrated fragment.
152 This was more obvious on the December scan and Mr Han believed it was a significant change compared to the September scan. He considered the disc density occupying the left lateral recess of L5 was subsequently confirmed on an MRI in January 2004.
153 Mr Han was asked to apportion as a percentage the contribution to the plaintiff’s back condition from his employment with the first and the second defendants. He thought this was a difficult question to answer. He considered the plaintiff clearly had an injury whilst working with the first defendant and subsequently had a herniated disc prolapse while working for the second defendant. In his view, “one could say the injury started with the first employment and subsequent employment was merely an aggravation of the initial injury.”
154 If he was to apportion as a percentage, he would say the employment with the first defendant contributed sixty per cent, whilst employment with the second contributed forty per cent.
155 The apportionment would also depend on the nature of the plaintiff’s work at the time of injury. If the plaintiff was performing heavy repetitive bending, then it would be more likely for him to suffer a disc prolapse as opposed to when he was performing light duties.
156 If the plaintiff was performing light duties with the second defendant as opposed to heavy repetitive bending, then the apportionment would be less with regards to employment with the second defendant. However, Mr Han understood the plaintiff performed repetitive bending and twisting in both occupations and therefore Mr Han came to a conclusion of sixty per cent to the first defendant and forty per cent to the second defendant.
Viva Voce Evidence
157 In examination-in-chief, Mr Han confirmed having been shown the two scans. He thought there had been a change in that the latter showed a disc prolapse at L4-5 had increased in size. He commented that certainly the discs were not normal in the first investigation and there was mild evidence of bulging discs even back in September.
158 When cross-examined by counsel for the second defendant, Mr Han agreed that the plaintiff had been having back pain essentially unabated since early 2003. The plaintiff told him about some heavy lifting with the first defendant and there was no doubt in Mr Han’s mind the disc prolapse related to the injury that the plaintiff had had over the years. When he said “disc prolapse” he meant problems at three levels.
159 Mr Han confirmed on the September visit, the plaintiff’s pain was severe and he had no doubt the plaintiff had a lot of pain his general practitioner could not manage.
160 Mr Han had no doubt the plaintiff’s back pain was related to quite heavy work. On the first examination, the plaintiff’s left leg pain was occasional but not severe.
161 Mr Han could not recall putting any restrictions on the plaintiff’s work when he first examined him but generally when he saw someone with the plaintiff’s complaints he would ask them to consider doing lighter duties at work. He would say something along the lines “…if you feel that you can cope if the pain is not too bad, you could probably go back to the type of work that you do if you can manage it, but certainly a prolapse would probably deteriorate with time and the pain could get worse if you continue the way you are working in a hard labour environment.”. He would leave it to the patient but with that caution. He commented that disc prolapses were very common and there would be no one working if everyone with a disc prolapse took that advice.
162 At L4-5 on the first investigation there was a mild posterocentral disc protrusion. Mr Han considered the plaintiff had problems at three disc levels. Having seen the original scans, he thought the plaintiff could be prone to further problems in light of those findings.
163 When he reported that the second CT revealed a new disc prolapse at L4-5, Mr Han thought he used the word “new” in the context that it had changed. It was something different compared to the previous one. “It looked different, it looked bigger.”
164 In the September scan, Mr Han thought there was certainly evidence of a mild bulging disc. It was possible there was protrusion at the nucleus in this scan but certainly there was a change in the second which was worse as in the bulging disc was bigger indicating it was possible that the nucleus had bulged out more.
165 Mr Han also reported that he believed there had been a slight deterioration of the disc at L4-5 on the December scan. He agreed that it was possible and when the plaintiff stopped doing manual work the prolapse could get bigger but then he said you had to have some insult which he agreed could be as minor as getting out of bed. If the casing was damaged, it recovered but did not recover totally. There was always going to be a weak point.
166 Mr Han was not surprised that Professor Thomson found a small sequestration on the first scan, Mr Han thought it was a matter of interpretation and there could have been a very very small sequestration that might not have been able to be picked up.
167 Mr Han also agreed that a sequestrated fragment may become smaller and in some cases may disappear completely. He agreed with Professor Thomson’s comments that he may have been influenced by a change in the plaintiff’s clinical condition as neurological findings were more marked at the second consultation. Mr Han explained he tended to look at scans from a different perspective compared to a radiologist, looking at it as a treating surgeon trying to find a solution.
168 Mr Han confirmed, on the first examination, the plaintiff had intermittent leg pain but the majority of his pain was in his back. His leg pain was vague and was not consistent with an L5 nerve irritation but Mr Han agreed it was certainly not inconsistent with it. It was not inconsistent that the plaintiff could have had leg pain arising from the sequestrated fragment back in September.
169 Mr Han did not have any problem with the proposition that the findings on the second examination would be consistent with the movement of the fragment that was already there in September. He also agreed that it would not require a further injury to worsen symptoms simply a change in the position of the fragment. On waking in the morning one could have more pain, or it could simply be worsening of symptoms.
170 When cross-examined by counsel for the first defendant, Mr Han confirmed that the clinical examination was very important and that, at the first examination, he came to the conclusion that there was very little, if any, nerve root involvement or neurological involvement supported by his examination of reflex and power. The findings on September 2003 CT scan were consistent with his clinical examination, noting some degenerative changes and bulging at L5-S1. He thought the plaintiff’s condition was not that bad at that stage.
171 On the January 2004 examination, the plaintiff reported developing left-sided sciatica which was new in the last two weeks after starting a new job.
172 On that examination in January 2004, having seen the MRI scan which showed a large disc prolapse at L4-5 on the left impinging on the left nerve root, Mr Han thought the best option would be to consider a lumbar laminectomy and discectomy.
173 Mr Han confirmed his comments in his report that the CT scan had revealed a new disc prolapse at L4-5 and that, with his examination confirmed on the MRI scan, supported the need for surgery. He concluded that what had happened since September was that the prolapse that had occurred had caused the plaintiff’s sciatica and this was all confirmed on operation.
174 In his view, the radiological findings on the second examination explained this severe increase in the plaintiff’s symptoms.
175 Mr Han often saw pencil marks written by radiologists on scans.
176 Mr Han was not prepared to use the word “new” injury in relation to the second incident. He would probably state that there was an aggravation of an old injury where there had been some rupture or wear or tear before and another force caused the inside of the nucleus to come out through the tears of the lining and that caused the sequestrated fragment.
177 A prolapsed disc of the inner material, which is the nucleus coming out through the lining, is what he thought happened in the second incident.
178 In his view, there was clearly an injury in the first employment and subsequently a herniated disc in the second. The injury started with the first and the subsequent employment was merely an aggravation of the initial injury. It would depend on the heaviness of the work in the subsequent job as to its contribution.
179 Counsel for the first defendant put the heavy nature of the work with the second defendant and suggested that the work with the first defendant was not of the type that you would expect to lead to someone having a sequestrated disc. Mr Han responded that the complaint of back pain is very common depending on how the individual interprets his pain.
180 With the plaintiff’s symptoms and complaints in September, Mr Han thought that it would be unlikely for him to have had a sequestrated disc in his back impinging on a nerve but it would be possible as it was quite possible that the plaintiff had disc degeneration.
181 Mr Han confirmed the significant change between the first and second scans had been caused by the heavy work with the second defendant.
182 Mr Han did not agree that if the prolapse occurred in the second incident, then the second incident was far more significant. He thought the reason for a bulging disc to occur had to be the weakening of the lining and on the September CT scan, this appeared. So the original insult had happened. He thought that if the plaintiff had not had that insult, he probably would not have had the second problem. His problem started with his original back pain and the second injury was merely an aggravation so he thought the contribution of the original injury was higher.
183 Mr Han agreed it could be possible if the plaintiff had not done heavy work with the second defendant and had done something sedentary, he may never have had the prolapse.
184 On re-examination, Mr Han confirmed his views as to the appropriateness of a three level fusion. He thought the plaintiff’s pain was genuine and had advised him to put up with the pain as long as possible and continue with physiotherapy.
185 Mr Kudelka examined the plaintiff on behalf of Cambridge on 10 February 2004. The plaintiff told him of the circumstances of his work with the second defendant and the fact that after working four days, the following morning, he was unable to move because of severe left leg pain which had persisted.
186 Mr Kudelka thought the plaintiff had sustained a mechanical injury to his back on 12 December 2003, namely a sequestration of a lower lumbar disc with left sciatic nerve root compression. He thought the plaintiff’s employment was a significant contributing factor because of the type of work he was doing and it had resulted in an inability to continue working.
187 The plaintiff told Mr Kudelka that he had had some back pain in September 2003, having finished nine years of manual work for the first defendant but the plaintiff was told at that time his back ache was due to arthritis.
188 Mr Kudelka thought that it would be a disadvantage to the plaintiff to delay surgery while an argument occurred as to whether the second or the first defendant was responsible for the plaintiff’s present symptoms. He commented that the facts appeared to be that the plaintiff was well when he commenced work with the first defendant.
189 Mr Kudelka reported on 17 February 2004 that the plaintiff needed surgical decompression as recommended by his neurosurgeon.
190 Mr Kudelka noted symptoms from the separated or sequestered disc apparently commenced on 12 December 2003. He commented that with respect to the wording of the CT scan, degenerative disc disease and facetal osteoarthritis go together and are part of an age related degenerative change.
191 Dr Baker, occupational physician, examined the plaintiff on 18 May 2005.
192 The plaintiff told him of the injury on 12 December 2003. The plaintiff did not advise him of any other serious illnesses or injuries received through employment or car accidents. The plaintiff noted he did have some previous stiffness in his lower back, but he stated the pain he experienced was different from the pain he experienced in 12 December 2003.
193 Dr Baker had available to him the MRI scans of January and May 2004, and 30 March 2005.
194 Having not been told of any problems whist working with the first defendant, Dr Baker concluded that it would appear, as a result of the heavy nature of the plaintiff’s work in December 2003, he had suffered a disc injury at L4-5 which resulted in a disc protrusion requiring a left-sided laminectomy.
195 Mr Brearley, orthopaedic surgeon, examined the plaintiff on 19 May 2004. The plaintiff told him of his work history and the transfer to Melbourne doing labouring work involving a variety of jobs, mainly of a heavy nature.
196 The plaintiff told him that in the past year or so he would frequently wake up with some lower back pain and stiffness that would disappear when he got moving. He had never required time off. This was the situation right until the redundancy.
197 The plaintiff finished work on Friday, 29 August 2003 and on the following Monday, he woke up with severe pain in the lower back, the like of which he had never before. He had difficulty in walking. He immediately went to see Dr Abuel. He had no leg pain at that stage and was given analgesics.
198 The plaintiff told Mr Brearley over that weekend he had not done any work at home or anywhere else.
199 The plaintiff failed to improve and two weeks later he saw Dr Abuel again and a further x-ray was carried out. The plaintiff attended physiotherapy which helped slightly but his symptoms persisted. A CT scan was carried out.
200 The plaintiff was then referred to Mr Han, who suggested a period of rest. The plaintiff continued to have physiotherapy and his pain did improve.
201 The plaintiff felt able to work again and he applied for a job and was appointed with the second defendant as a wheat bunker attendant near Bendigo. He had no problems for the first five days. He was doing twelve hours’ work a day and the work was of a fairly heavy manual labouring type. By the end of the week on Friday, he had stiffness in the lower back but he was not unduly concerned.
202 The next morning, that is, one week after starting work, the plaintiff awoke with severe low back pain worse than it had been before. He also had left lower leg pain. He reported injury and saw his own doctor.
203 Having detailed the subsequent treatment undergone, the plaintiff told Mr Brearley that he had a good result from the operation initially but he had not returned to work. The operation virtually removed all of his back and leg pain. There was a recurrence however two weeks earlier.
204 Having noted the September 2003 CT scan, Mr Brearley commented that the next CT scan of 30 December 2003, showed a disc protrusion which appeared to be sequestrated. It was of moderate size and occupying the lateral recess of the left fifth lumbar nerve root. Mr Brearley noted the MRI scan of January 2004 confirmed a large L4-5 disc extrusion with sequestrated material compressing the left L5 nerve root.
205 In terms of causation, Mr Brearley noted when the plaintiff left the first defendant he was having no particular problems with his back. Save for the feeling of stiffness in the morning, he was able to do a full day’s manual work without difficulty.
206 It was after he started work with the second defendant that the plaintiff suffered the actual disc prolapse, with the onset of severe low back pain, four days after he started work, of a heavy nature. Mr Brearley noted the necessity for operative treatment was accepted by second defendant’s insurer.
207 In Mr Brearley’s view, as the prolapse did not occur whilst working with the first defendant, the plaintiff’s present condition could not therefore be attributed to the work he did there.
208 Mr Brearley noted that throughout his working life, the plaintiff had done heavy labouring work in the main and that included nine years with the first defendant. In his view, there would have been considerable minor trauma inflicted on the plaintiff’s spine as a result of that work and of all other manual work which he had done throughout his life. Minor disc damage would have occurred. However, in Mr Brearley’s view, had the plaintiff not done the particular week of heavy work with the second defendant, there was no likelihood the acute prolapse would have occurred. Accordingly, he concluded the plaintiff’s present condition had not arisen out of the course of his employment with the first defendant.
209 Mr Brearley re-examined the plaintiff in July 2005 in regard to alleged injuries to his left elbow, right elbow and left shoulder, having previously examined him in relation to his back condition in 2004.
210 Mr Brearley noted that in July 2005, the plaintiff was having continuing problems with his back and was not working for that reason. Mr Brearley diagnosed medial epicondylitis of both elbows and a possible left shoulder injury of subacromial bursitis.
211 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff on 24 August 2005 in relation to the December 2003 incident. No mention was made in relation to the first incident or any investigations carried out thereafter.
212 Mr Jones noted the plaintiff had undergone a laminectomy for a very significant disc prolapse, causing back pain and weakness in his left foot. There had been some improvement but levels of disability remained and at that stage he had thought a return to the plaintiff’s previous active employment of any kind would be impossible.
213 Having examined a list of proposed jobs, Mr Jones thought sales representative, despatch clerk and meter reader were suitable and that the plaintiff could probably manage employment of that type, particularly on a part-time basis. He thought there was no doubt the plaintiff’s employment was a significant contributing factor to his disability and his incapacity to work, but noted he did not appear to be unfit for all work.
214 Mr Ian Jones re examined the plaintiff for medico-legal purposes on 11 June 2008, having previously examined him in 6 July 2007 when the plaintiff told him about his injury following work with the second defendant.
215 Having compared Mr Han’s description of the plaintiff’s clinical findings in his letter of 26 September 2003 to his subsequent examination of the plaintiff in January 2004, Mr Jones considered there appeared to have been a clinical deterioration in the plaintiff’s condition, in that he had developed left-sided sciatica.
216 Mr Jones thought it was possible the plaintiff did not sustain an injury as a result of the work with the second defendant. Mr Jones thought it was quite possible, given the x-ray findings as described by Professor Thomson, that the plaintiff’s condition simply progressed without there being any specific injury or insult, as suggested by the plaintiff during his work with the second defendant.
217 On the other hand, the injury as described to Mr Jones when the plaintiff was seen by him on 6 July 2007, shovelling wheat, pulling tarpaulins and lifting and carrying sand bags, could have aggravated the pre-existing disc pathology, resulting in the sciatic symptoms for which the plaintiff subsequently underwent surgery.
218 Mr Ian Jones re-examined the plaintiff on 6 May 2010, at which time the plaintiff reported his level of back pain was worse than last seen. He reported symptoms of pain indicated to be deep in the outer aspect of his left thigh.
219 Mr Jones thought further medical treatment was required. In light of the plaintiff’s deteriorating sciatic pain affecting his left leg and his increased level of back pain, Mr Jones considered surgical fusion of the lumbar spine would be appropriate.
220 Mr Jones thought the plaintiff did not have the capacity to undertake even light work at that time. His sitting capacity, in particular, appeared to be deteriorating due to the increased level of back pain and sciatica.
221 Mr Jones noted that the December 2003 CT scan, which was reported to him when he first saw the plaintiff, demonstrated a disc prolapse at L4-5 on the left. Mr Jones thought the January 2004 MRI scan showed the presence of a large left-sided L4-5 disc prolapse. He considered it was possible for a patient who suffered a disc injury, that the full effects of a disc disruption not be symptomatically evident up to a few days following the injury.
222 Mr Jones believed the plaintiff’s employment with second defendant had contributed to the need for surgery on the basis that the plaintiff’s L4-5 disc injury resulted from an aggravation of a pre-existing degenerative disease.
223 Mr Brownbill, consultant neurosurgeon, reviewed the plaintiff on 27 October 2010, having previously examined him in late 2006.
224 The plaintiff told him that overall since his last review, his back and left leg pain had become a little worse and his sitting capability was worse.
225 The plaintiff told Mr Brownbill he noted back stiffness in early 2003 which increased (without specific incident), as a result of which he took a redundancy package and ceased work.
226 The plaintiff advised that on 1 September 2003, he woke with severe lower back pain and there had not been any physical activity in between. He received physiotherapy and medication. He stated his pain improved and resolved completely and there was no ongoing pain and there had not been any leg pain.
227 The plaintiff told Mr Brownbill that he started working with the second defendant and on 12 December, he noted the onset of back stiffness without any specific incident, after working twelve hours with heavy physical activity. The plaintiff then could not get out of bed because of severe back and left leg pain and those pains increased.
228 The plaintiff then told Mr Brownbill of his subsequent operation and treatment.
229 On examination, there was restriction of thoracolumbar spinal movements. There was no objective neurological abnormality and there were no signs of radiculopathy.
230 Mr Brownbill was provided with notes of the first operation on 20 February 2004, the reports of the September 2004 and September 2008 MRI scans, Professor Thomson’s reports and Mr Han’s report of 14 January 2009.
231 Mr Brownbill noted radiological investigations had demonstrated L4-5 intervertebral disc derangement which had been discussed by Professor Thomson.
232 On the information provided, Mr Brownbill considered the plaintiff suffered an acute injury to his lumbar spine involving the L4-5 disc as a result of the described work with the first defendant, with the onset of pain two days after he ceased work.
233 Mr Brownbill considered the plaintiff also suffered an injury to the lumbar spine involving that disc whilst working with the second defendant in late December 2003, with the onset then, for the first time, of severe left leg pain.
234 Mr Brownbill noted the several radiological investigations were consistent with those two injuries occurring. He thought the first injury provided the basis for the second to occur; however, the injury sustained with the second defendant resulted for the first time in severe left leg pain.
235 Mr Brownbill did not think it possible to state with certainty the precise relative contributions by the two periods of employment to the overall lumbar intervertebral disc derangement, and that in relation to the plaintiff’s resulting lower back condition, it was appropriate that the contributions by each period of employment be regarded as of equal value.
236 Mr Brownbill thought the plaintiff had radiologically demonstrated multiple level lumbar spine degenerative changes; however, on the information provided, the changes at L4-5 had been the relevant ones with respect to the injuries incurred with these employers.
237 Mr Klug, neurosurgeon, examined the plaintiff on behalf of his solicitors initially on 17 December 2008, and more recently on 5 October 2010.
238 On the initial examination, the plaintiff told Mr Klug of his employment with the first defendant until taking a redundancy package. He was working in a very physical occupation and he was required repeatedly to lift heavy sugar bags weighing up to fifty kilograms.
239 The plaintiff told Mr Klug his problems first started in about June 2003, when he noted a gradual onset of stiffness and later discomfort in his low back, symptoms initially mainly noted when he woke up. With the passage of time, the symptoms gradually worsened and contributed to his decision to take a redundancy package.
240 Up until that time, the plaintiff’s symptoms had been confined to his back. He did not seek any specific investigation or treatment and put up with it.
241 Having ceased work, the following weekend the plaintiff’s condition was much as it had been. However, on the Monday morning, he awoke with very severe pain in his low back and recalled he could hardly stand up.
242 Because of the severity of his pain, the plaintiff attended his doctor for the first time for this condition. X-rays were taken and the plaintiff was told they did not show any definite abnormality.
243 The plaintiff subsequently had a CT scan which he was advised showed an abnormality, and thereafter he was referred to Mr Han. It was suggested the plaintiff rest, and that with such, his condition should improve. It was also suggested he could gain benefit from physiotherapy and hydrotherapy.
244 With such treatment, the plaintiff’s condition substantially improved and by early December 2003, his symptoms were of a minimal degree and he decided to return to work.
245 The plaintiff told Mr Klug he commenced work with the second defendant on 12 December 2003 and four days thereafter his back disorder recurred. He developed low back pain in the same area where he previously had pain but on this occasion the pain was severe, the worst he had ever experienced.
246 The plaintiff told Mr Klug of his subsequent progress.
247 When asked by Mr Klug whether there were any other problems, the plaintiff described stiffness in both shoulders for an extended period of time. In the past, he had been treated by injections, which really did not lead to improvement on the right, whereas on the left, had been followed by significant resolution. He also told Mr Klug of some swelling in the inner aspects of both elbows in relation to which tendonitis had been diagnosed.
248 On the initial examination, the plaintiff did not provide Mr Klug with any imaging studies but he had a number of radiological reports available.
249 On that occasion, Mr Klug thought it appeared, as a result of the plaintiff’s employment with the first defendant, he did suffer low back pain. Mr Klug felt it most probable that the nature of his employment then led to an aggravation of an underlying degenerative disorder with resulting back pain with some spread of pain to the left lower limb.
250 Noting the radiologist’s comments on the early CT scans, Mr Klug stated he would have to be of the opinion that it was highly likely that the employment with the second defendant led to a very substantial aggravation of a pre- existing disorder, leading to a frank disc prolapse and the need for subsequent surgery. He thought that it was not possible to exclude the role of employment with the first defendant but, in his view, that would appear to be a relatively minor factor in regard to the plaintiff’s subsequent progress.
251 Mr Klug felt the employment with the first defendant would have to be considered a factor in relation to the plaintiff’s low back disorder. Mr Klug believed, however, the very substantial aggravation occurred as a result of employment with the second defendant.
252 On that occasion, Mr Klug had available to him the two MRI scans of 9 September 2008 and 1 March 2010. Having reviewed the plaintiff, he really saw no reason to change his earlier comments.
253 Mr Klug added as of 17 September 2003, he believed the plaintiff was suffering from symptomatic lumbar spondylosis, which was responsible for back pain with probably some referral of pain to the left lower limb without, however, any clear evidence of a radiculopathy.
254 As of December 2003, he thought the plaintiff was suffering a symptomatic disc protrusion at L4-5, which was responsible for back pain and referral of pain to the left lower limb, together with some evidence of impaired neurological function. He considered the plaintiff also appeared to be suffering from an L5 radiculopathy.
255 Mr Klug thought it was possible the plaintiff did have some referred pain from his back as of September, but he did not feel there was any evidence to suggest there was clear evidence of neurological involvement. There was such clear evidence in December of nerve root compression with possible pain in the left lower limb, together with impairment of neurologic function.
256 He commented, as always, it is very difficult to try and define the role of various events. He believed, however, in regard to this matter, it was not possible to exclude the role of the first defendant. He felt it was fair to say, in regard to the plaintiff’s current condition, some forty per cent reflected his employment with first defendant and the remaining sixty per cent related to his employment with the second defendant.
257 Dr Pham from the Guardian Medical Centre wrote to the first defendant on 22 October 2007, at which time he was certifying the plaintiff fit for alternate duties. Dr Pham considered the plaintiff’s condition to be of a permanent nature and unlikely to significantly improve.
258 Dr Pham reported on 8 September 2008, having read Professor Thomson’s December 2007 report and also Mr Han’s report setting out he thought there was a new disc prolapse at L4-5 shown on the December CT scan.
259 Dr Pham commented that an injury to the spine can be better determined with an MRI scan than a CT scan. Possibly an MRI scan better revealed injuries that were present but not noted on the earlier CT scan.
260 He noted that the interpretations of Professor Thomson and Mr Han differed in some important respects in trying to determine at what point in time the injuries occurred.
261 Dr Pham noted that given the work the plaintiff performed at both workplaces were of a nature likely to cause damage to his lower back, he thought it reasonable to expect the reported duties of both workplaces had the potential to be a cause of or aggravation to the plaintiff’s injuries.
262 In terms of the plaintiff’s upper limb problems, he understood the plaintiff reported pain in his left elbow to the first defendant during May 2003, having been operating a bagging plant at that time. An x-ray and ultrasound on 13 May 2005 reported some thickening of the common flexor origin.
263 On 15 March 2005, an x-ray of the right shoulder revealed no abnormalities. On 2 April 2005, right elbow pain was reported. An ultrasound of the right elbow on 24 March 2005 reported right lateral epicondylitis. Reference was made to Mr Brearley’s July 2005 report.
264 Dr Pham noted the earliest reference to right shoulder pain he could find in the notes was on 16 October 2006 and an ultrasound on 24 October 2006 reported a likely underlying tendinopathy. The thickness outside the acromial bursa was identified with associated bursal impingement on particular abduction.
265 There was further, a right shoulder ultrasound performed on 26 March 2008 which reported an appearance consistent with a moderate degree of bicipital tendinopathy.
266 Dr Pham noted that recently the plaintiff had complained more about right shoulder pain than his left and there is little mention of elbow pain for some time.
267 Dr Pham noted the CT scan of the cervical spine in April 2008 and his opinion was that the condition at C5-6 could be contributing to the plaintiff’s shoulder pain but further specialist investigation and assessment would be needed to determine whether it was a contributing factor. In terms of the plaintiff’s low back injury alone, Dr Pham thought the plaintiff was presently not fit for pre- injury duties or for manual occupations. He noted, given the complications the plaintiff had experienced during his recovery, the present severity of his condition and his age, in Dr Pham’s opinion he was unlikely to be ever fit for those types of duties.
268 Mr O’Brien, orthopaedic surgeon, examined the plaintiff on 13 October 2008.
269 The plaintiff told him of his heavy work with the first defendant which he continued until 29 August 2003 when he took a redundancy package.
270 A few days later the plaintiff noted the onset of low back pain and consulted his doctor on 1 September, at which time he was advised he was suffering from arthritis. His pain did not improve. Thus he then saw another doctor who arranged a CT scan of his lumbar spine, following which he was referred to Mr Han.
271 Mr Han at that stage advised conservative treatment with physiotherapy and hydrotherapy. This apparently improved the situation but the plaintiff indicated he did continue to be aware of some persistent back pain.
272 The plaintiff told Mr O’Brien that on 9 December, he started work with the second defendant, working twelve hours a day. At the end of the fourth day, the plaintiff said he was aware of some moderate back stiffness. On waking the following morning, he had difficulty standing due to severe back and left leg pain and as a consequence he was not able to work. The plaintiff told Mr O’Brien, as his pain did not improve, he returned to Melbourne to see his local medical officer, and by this stage he had severe back and left leg pain with numbness affecting the left great toe.
273 A further CT scan was undertaken. He was then referred to Mr Han.
274 Mr O’Brien had available to him a report of the September 2003 CT scan and the MRI scan of January 2004.
275 Mr O’Brien noted that investigations at the time the plaintiff first ceased work demonstrated multilevel degenerative change without thecal pathology, which suggested the presence of non-specific back pain responding to some conservative treatment.
276 He noted that in December 2003, after four days’ heavy work with the second defendant, the plaintiff described some back stiffness and on the following morning woke with severe back and left leg pain. In Mr O’Brien’s view, that clearly related to an L4-5 left-sided disc prolapse with sequestrated disc material causing compromise of the L5 nerve root.
277 From the history, he concluded the plaintiff’s employment with the second defendant precipitated an L4-5 disc prolapse and since that time the plaintiff had continued to have symptoms associated with L4-5 disc pathology. Thus employment remained a significant contributing factor.
278 In fact, on the available evidence he had, he considered that employment to December 2003, namely with the first defendant, was not relevant to the current condition. He noted the plaintiff certainly did describe a previous episode of back pain, which Mr O’Brien regarded as non-specific as there was no evidence to define the specific etiology of the pain. Given the September 2003 investigations suggested multilevel degenerative change, it certainly did not identify any specific symptomatic pathology.
350 Ms Lomas treated the plaintiff with remedial massage for low back pain and left leg pain and muscle tension from 5 September 2005 to 1 May 2006
351 The first defendant also relied on the reports of Mr Han, Dr Abuel, Mr Espedido, Dr Chan, Mr O’Brien, Mr Klug, Mr Brownbill, Mr Kudelka, Dr Pham, Mr Ian Jones and Mr Clive Jones and Dr Baker, which were part of the plaintiff’s case
Other Documents
352 The employer’s claim report dated 30 January 2004 set out the plaintiff had strained his back lifting bags and shovelling sugar with Refined Sugar Services Pty Ltd on 1 September 2003.
353 Dr Abuel provided a medical certificate in relation to an examination on 1 September 2003 for lower back pain.
354 An Injury Report completed on 14 August 2000 was lodged with the first defendant detailing an injury on 25 July 2000 at Mackay Port, where the plaintiff suffered injury attempting to push a sugar skip without the aid of a lifting device.
355 In relation to that incident, an Application for Compensation was signed by the plaintiff on 14 August 2000. He claimed having strained his lower back attempting to push a sugar skip containing raw sugar on 25 July 2000.
356 In relation to that incident, the plaintiff wrote to the first defendant advising in regards to his claim for strained lower back, he was in extreme pain until he could take no more, so instead of going to the doctor he went to the physiotherapist. The plaintiff advised he was sure the doctor would have told him to take time off work. Anyway, the physiotherapy worked out well, so he did not need to. He advised the back is no problem now so he does not have doctor’s certificates but the physiotherapy cost him $45 and he was withdrawing the claim.
357 It was noted that that correspondence was received by the first defendant on 9 October 2000.
358 The plaintiff’s solicitors wrote to Dr Abuel on 13 May 2005 requesting a report in relation to injuries suffered by the plaintiff on 12 December 2003.
359 The referral note from Dr Abuel to Mr Han dated 19 September 2003, set out the reason for referral being lower back pain with no mention of any work injury.
360 Dr Abuel’s notes of attendances on 1 September, 15 September and 19 September 2003, where low back pain was noted but there was no reference to any work related complaint, were tendered.
The Second Defendant’s Medical Evidence
361 Professor Thomson, radiologist, first reported on 30 December 2007, having received a series of radiological examinations dating from September 2003 through to May 2007, and having been advised the claim referred to an alleged back injury on 12 December 2003.
362 It was Professor Thomson’s impression that the sequence of examinations indicated there had been a longstanding degenerative process involving the discs at L3-4, L4-5 and L5-1, since the original examination in 2003, prior to the alleged injury. This, in his view, included a focal prolapse with sequestration at L4-5 and disc prolapses at L3-4 and L5-S1, involving nerve root compression.
363 Professor Thomson thought the sequestrated portion of the L4-5 disc was present on the original scan dated 16 September 2003, and that the appearances were unchanged until the time of the laminectomy on 20 February 2004. He noted the sequestrated segment was much more clearly seen on the initial MRI scan of 17 January 2004, than it was on the September CT scan, as the iliac crest had caused some beam hardening artefacts. Although he had not been given copies of the original reports, he noted the sequestration had been marked with pencil, indicating a radiologist had observed the abnormality.
364 Professor Thomson noted that subsequent to the laminectomy, non-fusion stabilisation devices were placed between the spinous processes. These devices were not disc implants, but were designed to unload the facet joints and provide a degree of stability in a mechanically unstable back. He noted in the CT scan of 22 June 2006, the implants were in position, but there was still evidence of probable nerve root impingement.
365 When commenting on the September 2003 CT scan, Professor Thomson noted that prominent osteophytes that were present around the vertebral body margins at L4-5 appeared well preserved. There was no evidence of spondylolisthesis, but there were moderate degenerative changes in the posterior facets at L4-5 and L5-S1.
366 At L3-4, there was a moderate posterior and left-sided disc prolapse, that may be compromising the traversing left L4 nerve root.
367 At L4-5, there was a generalised disc bulge with a more focal posterior prolapse which projected in the spinal canal below the level of the disc. He thought this was suggestive of the sequestrated fragment of disc.
368 At L5-S1, there was a focal central to right-sided prolapse which extended towards the exit foramen on the right side and may be compromising the right L5 nerve root.
369 Professor Thomson commented on the December 2003 scan, noting the appearances were identical to those of September with respect to the disc prolapses and in particular the sequestrated disc fragment at L4-5. He thought this was more clearly seen as a result of the additional angled slices at and below L4-5.
370 He also had available to him the plain x-ray of the lumbar spine of 15 September 2003, the MRI scans of 7 January 2004, 14 May 2004, 30 March 2004 and CT scan of the lumbar spine dated 22 June 2006.
371 Professor Thomson reported more recently on 5 April 2010.
372 Professor Thomson had then also read the reports of the radiologist, Dr Purcell, which were not made available at the time of his December 2007 report.
373 Professor Thomson confirmed his earlier opinion that the sequestrated portion of the L4 disc was present at the original CT scan of 16 September 2003 and he was alerted to this abnormality by a pencil mark on the x-ray film. As Dr Purcell did not comment on the possibility of a sequestration in his report dated 17 September 2003, Professor Thomson assumed the mark was made by another person at a later point in time.
374 Professor Thomson noted it was possible he was alerted by the pencil mark and having the benefit of all examinations, including the subsequent MRI scan available for careful comparison, observed that the sequestration was present on the September 2003 examination. He noted the September CT scan was of only ordinary quality when compared to the second, and also the MRI scan of January 2004.
375 Professor Thomson noted a sequestrated fragment may become denser and sometimes smaller as time goes by, but in some cases the fragment may disappear completely.
376 Professor Thomson thought Mr Han may have been influenced by a change in the plaintiff’s clinical condition, as his neurological findings were indeed more marked at the second consultation on 6 January 2004. Professor Thomson considered that would be consistent with movement of the fragment to cause more impingement than previously but did not necessarily indicate that the fragment was not present earlier. In his view, it would not require a further injury to worsen symptoms, simply a change in the position of the sequestrated fragment.
377 Professor Thomson could not comment as to why Dr Purcell considered the presence of the sequestration a new event at the time of the December 2003 scan. However, he noted there is a significant intraobserver error rate among radiologists, especially where there are interruptions or a high workload, noting both events occurred in a busy private radiological practice.
378 In examination-in-chief, Professor Thomson explained his routine of doing a forensic examination of the x-rays comparing them from start to finish, then preparing a report. He then examines any available radiology reports and compares his opinion to that of the radiologist. If he finds anything odd he goes back and views the multiple examinations simultaneously.
379 Initially Professor Thomson was sent the CT scans, x-rays and MRI scan and asked to comment on those in relation to the alleged back injury on 12 December 2003. Before providing his second report, he had Dr Purcell’s report and also a report from Mr Han. He was asked at that stage to comment whether he thought the sequestrated disc segment had been there or not in September.
380 Professor Thomson confirmed he was postulating a possibility that if the sequestration was there before December 2003, it could simply have changed position.
381 In cross-examination, Professor Thomson said that he was not saying, having looked at all the facts, that the second job had no material contribution to the injury. All he was saying was there was a sequestrated segment in September and there was still one there in December. He did not disagree that heavy work with the second defendant may have caused an aggravation.
382 Professor Thomson disagreed with Dr Purcell about the presence of the sequestration and he was also asked whether it was necessary to have another injury or not for the fragment to be where it was. He explained it was possible it could have moved in the absence of further injury.
383 His second report was simply limited to two things, namely the presence of the sequestration or otherwise on the September scan and the possibility of there being that finding later on in the absence of further injury.
384 Professor Thomson agreed it was probable that the heavy work, rather than just bending down to pick up his socks was responsible for the increase in pain or an aggravation of perhaps the existing sequestrated disc that was present.
385 Professor Thomson confirmed his interpretation differed from that of Mr Han and Dr Purcell but he was not going to disagree with the opinions of numerous doctors. There may well have been some earlier degenerative problems but certainly the heavy work with the second defendant caused a state of pain in subsequent and substantial disc prolapse.
386 He confirmed the major issue in dispute was the presence of the sequestrated disc. He confirmed on the films it was quite clear there was an abnormality there that was quite consistent with the sequestrated fragment.
387 Professor Thomson explained that sequestrations are commonly missed and they are hard to find because they are not where you would expect to find a disc fragment. Generally speaking, they are in the posterior or central or sometimes they are sideways but they are not always obvious. They are obvious on an MRI scan because you can see the fattened tissues better but on a CT scan, particularly at L4-5 and L5-S1, they are inconspicuous and that is part of the problem.
388 Having seen the sequestration on the MRI scan in January 2004, he went back to the 2003 CT scans and could see it. It was there in September and there was a pencil mark which he thought confirmed the feeling he had but it was a sequestration.
389 He thought the importance of the sequestration was an indication of the damage to the disc at the first instance. He was of the opinion that this was abnormal in September.
390 In re-examination, Professor Thomson thought that given he saw the fragment in September, it followed there had already been a protrusion of the nucleus of the disc at L4 by that stage.
Correspondence from the Plaintiff
391 The plaintiff wrote to Mr Han after he was examined by him in September 2003. The plaintiff advised Mr Han of the heavy nature of his work with the first defendant and the onset of pain on 1 September 2003.
392 The plaintiff requested Mr Han’s help in giving the insurance company a reason why he was in pain and unable to work.
393 The plaintiff wrote to Mr Hope, in the first defendant’s worker’s compensation department, the letter having been received on 7 July 2005.
394 In that letter, the plaintiff advised he was lodging a claim for both elbows and his left shoulder in relation to heavy manual work performed whilst working for the first defendant. The plaintiff detailed his back problems in 2003.
395 The plaintiff advised that he was diagnosed with right tennis elbow on 5 April 2005 and on 17 May that year he attended the doctor with a very painful left elbow and shoulder. Following investigations, he was referred to a specialist, Mr Clifford, whom he saw on 27 June 2005
The Second Defendant’s Lay Evidence
396 Mr John Drury, former site manager of the second defendant, swore an affidavit on 27 March 2008 exhibiting a statement made to the second defendant on 17 December 2003 in relation to injuries allegedly sustained by the plaintiff.
397 In that affidavit, he referred to comments he had made in his statement about a site induction course and deposed he believed the plaintiff was taken after that course to the bunker area where another employee showed him his duties.
398 Mr Drury recalled that on the Friday, which was the last day the plaintiff worked, he had climbed onto the grain stack in order to commence to pull the tarpaulin. Mr Drury informed him, before he commenced, not to pull the tarpaulin and that he was to get off. The plaintiff complied with those instructions.
399 Mr Drury deposed it was his practice to allow younger employees to pull the tarpaulin. He did not consider that job dangerous but preferred more junior workers do it.
400 That task involved attaching a tarpaulin to vehicles which then took the weight of the tarpaulin as it was pulled over the grain stack. The task was conducted when there was approaching bad weather in order to protect the wheat stack. Employees only had to guide the tarpaulin over the stack as it was pulled by two vehicles. In the three days prior to the last day the plaintiff worked, there was no need to pull the tarpaulin over the grain stack.
Other Documentation
401 The plaintiff wrote to Mr Hope of the first defendant around 7 July 2005 at CSR.
402 The plaintiff advised he was lodging a claim in relation to physiotherapy treatment for both elbows and the left shoulder due to the heavy nature of the work with the first defendant.
403 The plaintiff advised of doctors’ visits for right elbow pain in April 2005, left elbow pain in May 2005 and also being seen by Mr Clifford, orthopaedic surgeon, for these problems.
404 The plaintiff wrote to Mr Han on two occasions which appear to be about the end of 2003 or the beginning of 2004.
405 In the first letter, he told Mr Han had lodged a claim with CSR with whom he had worked for nine years, handling bags of sugar, ranging in weight from between 15 to 30 kilograms, shovelling sugar and bagging sugar. He explained it was hard manual work. He finished up on 29 August and on 1 September he was in so much pain, he had to go to the doctor because he could hardly walk. CT scans were then taken in September prior to Mr Han and the plaintiff advised the insurance company would like to know his findings. The plaintiff advised Mr Han he would really appreciate his help by giving the insurance company a reason why he was in pain and unable to work.
406 The plaintiff again wrote to Dr Han, the date of which is uncertain, asking him some questions, advising that despite continuing exercises, he was still having pain in his lower left back and down to the calf and left leg.
Overview
The First Defendant
407 Section 134AB(1) of the Act permits the bringing of proceedings only in respect of compensable injuries “arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999”.
408 To obtain leave to bring proceedings for damages in relation to that compensable injury, the plaintiff must establish that such injury materially contributes to the plaintiff’s impairment and its consequences at the date of hearing and will continue to do so permanently (see Ashley JA in Grech (supra) at paragraph 58), and that the resultant impairment meets the statutory test of seriousness.
409 In this case, it was submitted by counsel for the first defendant that the plaintiff’s employment with the first defendant in the first period does not materially contribute to the plaintiff’s present condition. Further, it was submitted that the plaintiff is unable to establish the requisite loss of earning capacity of forty per cent.
410 It was submitted it was later in these proceedings that focus was placed on employment in the first period, with the plaintiff earlier focusing his claim on employment with the second defendant.
411 Counsel for the first defendant argued that the plaintiff suffered from stiffness, not back pain whilst working for the first defendant. Having left this job in late August 2003 and undergoing some physiotherapy treatment, the plaintiff was fit to take on a job he knew was a relatively heavy job with the second defendant three months later.
412 Further, it was submitted that employment with the second defendant was a materially contributing factor.
413 In considering this application, I must take into account all the evidence.
414 I accept, as was conceded by both defendants’ counsel, that the plaintiff was a very frank witness.
415 I accept the plaintiff’s evidence that he suffered injury to his back in the course of his employment with the first defendant.
416 As a result of his heavy work with the first defendant involving lifting at its Yarraville premises, and also working on the ship’s hull, the plaintiff experienced back stiffness from about mid 2003. He first reported reasonably severe back pain and was unable to walk when he saw his doctor on 1 September, three days after he ceased work, not having engaged in any strenuous activity during those three days.
417 Although the plaintiff’s evidence was somewhat unclear in this regard, I accept he did take a redundancy from that employment because of his ongoing back problems.
418 The plaintiff underwent physiotherapy treatment for his back in September and November 2003 and was undertaking exercises at home during that time.
419 Before commencing work with the second defendant, the plaintiff had a back condition in relation to which Mr Han would have advised him to take care and avoid heavy work.
420 Counsel for the first defendant submitted that as the plaintiff was able to return to heavy work with the second defendant in December 2003 and did not suffer the requisite loss of earning capacity at that time, it could not be said he had a serious injury resulting from his employment with the first defendant.
421 However, this approach is incorrect as I am required to consider whether such employment materially contributes to the plaintiff’s impairment at the time of hearing: (see Duffin v Corowa Trading Co Ltd and Duffin v Blue Scope Steel Ltd [2010] VCC 785 [10 June 2010]).
422 The preponderance of medical opinion is that the employment in the first period continues to materially contribute to the plaintiff’s present condition. Mr O’Brien, Mr Brearley and Dr Macintosh, upon whom the first defendant relied, are in the minority, holding a contrary view based on an acceptance that the plaintiff had recovered from his injury in the first period.
423 In particular, I prefer the evidence of the treating surgeon, Mr Han, who has treated the plaintiff throughout. Mr Han considered the plaintiff clearly had an injury whilst working with the first defendant and subsequently had a herniated disc prolapse while working for the second defendant.
424 In Mr Han’s view, there had been some rupture or wear and tear shown on the September 2003 scan indicating a weakening of the disc at that time. Mr Han was not prepared to use the word “new” injury in relation to the second incident.
425 Mr Han thought one could say the plaintiff’s injury started with the first employment and subsequent employment was merely an aggravation of the initial injury. Employment with the first defendant contributed sixty per cent, whilst employment with the second contributed forty per cent of the plaintiff’s present condition.
426 Whilst Mr Brownbill did not think it possible to state with certainty the precise relative contributions by the two periods of employment to the overall lumbar intervertebral disc derangement, and that, in relation to the plaintiff’s resulting lower back condition, it was appropriate that the contributions by each period of employment be regarded as of equal value.
427 Mr Klug felt the employment with the first defendant would have to be considered a factor in relation to the plaintiff’s low back disorder. Mr Klug believed, however, the very substantial aggravation occurred as a result of employment with the second defendant.
428 Mr Ian Jones thought both injuries continued to contribute to the plaintiff’s present condition, as did Mr Elsner.
429 Dr Baker and Mr Clive Jones were not told of the work in the first period and Mr Kudelka, whilst noting pain in September 2003, only addressed injury in the second period.
430 Taking into account all the evidence, I am satisfied that the injury in the first period materially contributes to the plaintiff’s present condition.
The Second Defendant
431 Relying on the view expressed by radiologist, Professor Thomson, in his reports, it was submitted on the second defendant’s behalf that injury had occurred and was shown on the September CT scan following the first period and that any changes shown on December 2003 CT scan could have occurred in the absence of any injury with the second defendant.
432 I accept that when cross-examined, there was some agreement from Mr Han that there could have been a sequestrated fragment in September 2003.
433 However, this issue of sequestration or otherwise became of less significance when Professor Thomson ultimately conceded it was probable that the employment with the second defendant had materially contributed to the plaintiff’s current condition and that it was heavy work rather than just bending down to do something that was likely to result in the increase of symptoms. He ultimately agreed there was a temporal connection between the heavy work and the deterioration in the plaintiff’s symptoms.
434 Further, Professor Thomson conceded that it was probable that the heavy work with the second defendant had aggravated the plaintiff’s condition leading to a different clinical presentation in December 2003.
435 Save for Professor Thomson’s initial views expressed in his reports, there is no medical opinion that the plaintiff’s employment with the second defendant does not materially contribute to his present condition.
436 In cross-examination, counsel for the second defendant suggested to the plaintiff that work with the second defendant was lighter than work during the first period and was only for four days, and that he had received assistance whilst pulling the tarp. However, counsel then conceded that on the medical evidence there was not really a credible argument which could be brought that work with the second defendant was not a cause of the plaintiff’s condition, submitting it was not a material cause.
437 I accept that the work with the second defendant was heavy and aggravated the plaintiff’s pre-existing back problem on the fourth day at work, after which the plaintiff’s symptoms altered significantly.
438 I accept that having worked for the second defendant in December 2003, the plaintiff felt back pain that he had never felt before and he started to experience significant left leg symptoms as recorded by Mr Han. These problems have continued despite surgery being undertaken on two occasions.
439 Whilst there was the debate as to the presence of sequestrated disc on the September scan, I accept that the December 2003 CT scan showed a prolapsed disc which the majority of medical practitioners involved in this case consider to have resulted from the heavy nature of the plaintiff’s work in the second period.
440 Medical opinion is unanimous that the injury suffered in the second period continues to materially contribute to the plaintiff’s condition.
Pain and Suffering
441 Whether or not the plaintiff’s back condition is a serious injury was not really addressed by counsel for either defendant with counsel for the first defendant commenting that “nothing is to be said as it speaks for itself”.
442 Having heard the evidence and read the tendered material, as I indicated to the parties during the hearing, I accept that the plaintiff has a serious injury on the narrative test.
443 I accept that since September 2003 and the aggravation in December 2003, the plaintiff has had back pain and restriction of movement to a variable degree, worsened by activity. At present his back pain is constant and radiates down his left calf.
444 The plaintiff has undergone two operations without significant improvement and a third has been suggested by his surgeon. The plaintiff continues to require Tramal and Panadol Osteo for pain relief. He has problems sleeping due to back pain and his daily activities are significantly restricted.
445 I accept that as a result of the injuries suffered during the course of his employment with the defendants, the plaintiff no longer has the capacity to perform the only work in relation to which he has had experience, namely manual work. Medical opinion to this effect is unanimous. Because of back and leg pain, the plaintiff could not cope with even the very light job of traffic control officer.
446 I am satisfied that this interference with the plaintiff’s employment is a consequence when judged by comparison with cases in the range of other possible impairments that may be fairly described at the date of hearing as being more than significant or marked and at least very considerable.
447 As the plaintiff’s back problems have continued for over seven years, I am satisfied his back condition is permanent.
448 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 449 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 450 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
451 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
452 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
453 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein: See Barwon Spinners at paragraph 70.
454 I am therefore required to determine a “without injury” earnings figure.
455 Whilst counsel for the first defendant opined that the first defendant did not accept the plaintiff had not suffered the requisite loss of earning capacity, counsel did not address me in this regard, nor did he cross examine the plaintiff about this issue.
456 Counsel for the second defendant conceded the plaintiff clearly had a problem doing heavy work because of his back. She advised there would be no argument that the plaintiff had a partial capacity for employment or that he had not suffered the requisite loss based on his back injury alone.
457 However whilst counsel for the second defendant conceded there was a permanent loss of earning capacity of forty per cent based on the plaintiff’s back condition alone, she submitted that taking into account the condition of the plaintiff’s upper limbs, particularly his right shoulder, during the later part of the relevant statutory period (three years after the injury), the plaintiff would have had a light work capacity in any event.
458 It was submitted that the impact of the plaintiff’s right shoulder condition was very significant in the context of a manual worker and would have prevented him within three years after the injury doing the same kind of work he had always done.
459 It was submitted that taking into account what most fairly reflected his earning capacity, the plaintiff would have been limited to light work in any event and on that basis, he could not establish a forty per cent loss based on his back condition.
460 Counsel for the second defendant sought to distinguish the present case from the decision of Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009).
461 In that case, his Honour held that a supervening event was a matter for damages if the Court was satisfied that there was a serious injury in relation to the claimed compensable condition.
462 Counsel for the second defendant submitted that the approach in Acir did not apply to the present case because the supervening event - the plaintiff’s upper limb problems - happened at work during the three year period. It was submitted that this was certainly a work-related condition brought about by heavy years of work and it was not like an unrelated supervening event, like being hit by a bus, which would attract the principles that Forrest J set out.
463 It was submitted that the plaintiff had experienced problems with his shoulders and elbows which started during his employment with the first defendant.
464 The plaintiff had a left elbow problem in May 2003 following three weeks of heavy lifting at work. Examination by Dr Borwick at that time suggested a mild medial epicondylitis of the left elbow. Treatment was anti-inflammatory medication and advice on lifting.
465 However, there was no further attendance by the time Dr Borwick reported in April 2005. There was no record of any right elbow problems.
466 It was submitted that since 2004 and 2005, the plaintiff’s shoulders and elbows had been consistently painful requiring various investigations and treatment. Reliance was placed on numerous reports of ultrasounds carried out on both shoulders and elbows and the fact the plaintiff had undergone four injections in each shoulder over time.
467 Further, since 2005, Dr Abuel’s certificates in relation to Centrelink benefits set out that she thought restrictions should be applied in relation to both the plaintiff’s shoulders and he engage in no lifting greater than five kilograms.
468 Counsel for the second defendant relied on the plaintiff’s attendance at the Neurosurgery Outpatients Clinic at The Royal Melbourne Hospital in December 2008 when he reported a significant past history of manual work, including shovelling, heavy lifting and having pain in his both shoulders, particularly the right since 2005.
469 On that attendance however, there was no radiation of right shoulder pain; in particular there was no radicular component to it. The pain was not associated with paraesthesia or other neurological symptoms. On examination, there was no evidence of wasting or fasciculation. There was some point tenderness over the right shoulder. There was no exacerbation of pain with neck movement and the upper limb neurological examination was normal. On review on 18 May 2009, it was stated that the plaintiff remained essentially unchanged and the plaintiff was discharged from the clinic.
470 Reliance was also placed on the history given by the plaintiff to medico-legal examiners.
471 In 2008, the plaintiff told Mr Klug of shoulder stiffness for an extended time but injections to his left shoulder had been followed by significant resolution.
472 In 2008, Dr Pham noted that recently the plaintiff had complained more about right shoulder pain than his left and there was little mention of elbow pain for some time.
473 However, in terms of the plaintiff’s low back injury alone, Dr Pham thought the plaintiff was presently not fit for pre-injury duties or for manual occupations.
474 In cross-examination, the plaintiff agreed that his right shoulder was still an issue today. He agreed there has been a five kilogram limit imposed by his doctor on any lifting undertaken by him.
475 However, I accept, as the general practitioner, Dr Abuel, said, that the plaintiff’s overriding concern was his back and his arm problem was fairly minor.
476 The last active treatment the plaintiff has undergone for his right shoulder was an injection in 2008 and he has not had further treatment for his right shoulder since that time.
477 When examined by Mr O’Brien in 2008, there were no signs to suggest significant shoulder pathology.
478 I accept the plaintiff’s evidence that whilst he has some right shoulder restriction, it is his back condition which stops him working and causes him the most difficulties.
479 I am satisfied that the plaintiff has a serious injury in relation to his back alone and that his upper limb condition would not result in a limited work capacity.
480 I am therefore not required to consider whether the principles set out by Forrest J in Acir apply to the present case.
481 I am satisfied that the plaintiff has no capacity for suitable employment as a result of his back condition and that this is a permanent situation.
482 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g). In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
483 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages; i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
484 Taking into account all the evidence, I am satisfied that the plaintiff has suffered a serious injury to his lumbar spine in the course of his employment with both the first and second defendants.
485 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering and loss of earning capacity against the first defendant in relation to injuries suffered by the plaintiff in the first period.
486 I also grant the plaintiff leave to bring proceedings for damages for pain and suffering and loss of earning capacity against the second defendant in relation to injuries suffered by the plaintiff in the second period.
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