Velevski v Supply Chain Management Pty Ltd
[2010] VCC 474
•21 May 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04145
| DANNY VELEVSKI | Plaintiff |
| v | |
| SUPPLY CHAIN MANAGEMENT PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 May 2010 |
| DATE OF JUDGMENT: | 21 May 2010 |
| CASE MAY BE CITED AS: | Velevski v Supply Chain Management Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0474 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering only.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with | Slater & Gordon |
| Mr S Smith | ||
| For the Defendant | Mr G Coldwell | Wisewould Mahony |
| 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 in the course of his employment with the defendant on 6 June 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in 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 impairment of body function relied upon in this case is the lumbar spine.
5 The plaintiff relied upon two affidavits and he was cross-examined. The plaintiff’s wife, Natasha Velevski, swore an affidavit on 4 May 2010. In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
6 The plaintiff is aged thirty-four, having been born on 14 November 1975. He lives with his wife and two young children in Caroline Springs.
7 After leaving school, the plaintiff completed a Diploma in Civil Engineering and prior thereto worked as a labourer for a short period, before commencing employment with the defendant in 2000 as a storeman and forklift driver.
8 The plaintiff was involved in a transport accident in January 1995 in which he suffered a number of injuries, including injury to his mid and lower back. This pain settled over a number of years, allowing him to complete his studies and then work for the defendant. He received a lump sum payment of $7,000 from the Transport Accident Commission.
9 Within a number of years of that accident, the plaintiff was not experiencing any significant back pain and was able to attend to heavy work required by the defendant, which involved a lot of bending and lifting, without difficulty.
10 Prior to the said date, the plaintiff got an occasional instance of back pain perhaps once or twice a year, which he would treat with Panadeine or a short course of physiotherapy, but he did not need to take any time off work.
11 The plaintiff was cross-examined in relation to a statement he made in February 1999 relating to the 1995 car accident. He confirmed someone drove over him, injuring his chest, breaking his arm and hurting his neck and back in the middle and lower area. He was in hospital for four days and bedridden for a further four days. He confirmed the contents of his statement as to the interference with his sporting activities as a result of his accident injuries.
12 The plaintiff confirmed that after 1999 his condition improved and he had occasional low back pain one or two times a year, requiring Panadeine Forte and physiotherapy, and that was the case until 2006.
13 In cross examination, the plaintiff said he probably made a mistake by not referring to the 1995 car accident in his first affidavit. He was not sure that he mentioned it in his second affidavit just because material in relation thereto had been provided by the defendant. He agreed the 1995 car accident was a significant accident which kept him off work for six years. He gave up karate after the accident and then took up golf whilst working with the defendant, playing socially about every three months.
14 The plaintiff confirmed that he had disclosed his 1995 car accident injuries in his Worker’s Compensation Claim form signed on 15 June 2006.
15 In 2000, the plaintiff commenced employment with the defendant as a storeman and forklift driver. He was required to carry out picking and packing duties, which required him to lift boxes and various other items from within the store area. This was very repetitive, heavy work.
16 On the said date, the plaintiff suffered pain in his back after lifting a large number of boxes to compile an order (“the incident”). The plaintiff had to lift the boxes from a pallet, twist and place them on another pallet, a task involving a lot of bending and twisting. After doing this task for about six hours, the plaintiff noticed a sudden sharp pain in his back and he had numbness into both legs.
17 The plaintiff reported the incident. He then went home and attended the Caroline Springs Medical Centre, where he was given some medication and put off work.
18 A few days later the plaintiff attended his own doctor, Dr Navani, who gave him further medication and referred him for physiotherapy. The plaintiff was referred for a CT scan which was carried out on 16 June 2006.
19 In August 2006, the plaintiff was referred to Dr Stockman, rheumatologist, who arranged for an MRI scan to be carried out, after which he advised the plaintiff he had suffered a disc rupture in his back that was pressing on a nerve.
20 On 28 September 2006, the plaintiff suffered injury to his neck and upper back and also stirred up his lower back pain in a car accident (“the second car accident”), He had treatment for a couple of months and his condition was monitored at the Western Hospital Neurosurgery Unit until 2008. He was already on Panadeine Forte at the time of the second car accident. He also developed neck symptoms at that time, together with headaches that required medication. He had physiotherapy and undertook his own swimming exercise focussed on his neck problem which then “sort of eased off”.
21 The plaintiff obtained incapacity certificates until April 2008 which were provided to the Transport Accident Commission. They set out “soft tissue injury to the neck, post-traumatic stress syndrome, upper and lower back injury” and also “WorkCover due to lower back”.
22 The plaintiff’s lower back remained more painful for a period but eventually returned to the level that it was prior to the second car accident.
23 The plaintiff attempted to return to work six months after the said date on light duties only, however he only lasted a couple of hours and was advised by the defendant there were no suitable duties available for him.
24 The plaintiff remained out of work for some time and was sent to vocational people who “did very little” to try and help him get back to work.
25 In February 2008, the plaintiff was able to obtain employment as a building supervisor through word of mouth with a building company, Bellahaven Homes.
26 He resumed work at this time because he “saw nothing changing whilst he was at home and he had to go out and work and try something different – he didn’t want to sit around.“ He works “to keep sane and he can get his mind off things and try to make himself a good future for his life”.
27 Whilst in that employ until February 2010, the plaintiff, where possible, avoided doing heavy work or work that he thought would aggravate his back or put his back condition at risk.
28 The plaintiff is presently employed as a building supervisor with CDA Constructions, having obtained that job in February 2010.
29 In examination-in-chief, the plaintiff said that in his present job he has to do a little bit of heavy lifting but then he pays for it, feeling a lot of pain immediately and he has to have treatment. He tries to steer away from physical work because there are delivery drivers and other employees who can do it.
30 The plaintiff does not do any labouring or subcontracting duties on site. He organises the subcontractors and does all the paperwork and organising on the phone and making sure the jobs are done satisfactorily. His job involves supervising the construction of multiple domestic residences, up to twenty at a time.
31 In 2006, the plaintiff set up a building company ‘3D Constructions’. It had not operated until last year when he and his previous employer put a joint venture together and they put some land into that company. He is presently a director and has not earned any separate income from that company.
32 The plaintiff explained that his engineering skills really did not help him being a building supervisor.
33 The plaintiff has had days off since February 2008 for no accident-related matters and he has worked pretty constantly all the way through.
34 The plaintiff agreed that the current job with CDA Constructions was a responsible one. He is presently paid $125,000 a year, four times as much as he earned prior to the said date. He works essentially from 8.00 am to 4.30 pm Monday to Friday.
35 Three to four days a week he has to drive from his home at Caroline Springs to Pakenham. It might be an hour and a quarter drive each way. He has to go via the office in Camberwell to get the paperwork and he breaks up the drive.
Current Pain
36 The plaintiff continues to have constant back pain. He has not been free of such pain since the incident; however, certain things make it worse.
37 If he bends, twists or lifts, his back pain worsens. He is limited in his ability to walk for long distances and to stand for an extended period without experiencing back pain. He has difficulty with any activity requiring sitting for long periods, such as driving or going to the theatre with his wife. Even social occasions are now much harder.
38 The plaintiff experiences intermittent leg pain and pins and needles although at times they can become quite severe and they tend to get worse towards the end of the day or towards the end of the week.
39 When the pain is bad at work he often lies down in the middle of the day and also later when he gets home.
Current Treatment
40 The plaintiff takes Panadeine Forte at least three times a week, however it is having less effect now on his back pain and he wants to avoid increasing the dosage because it causes problems with his stomach. In recent times he has taken it daily.
41 The plaintiff takes Stilnox or another sleeping tablet prescribed by Dr Navani two to three several times a week, because he experiences very regular problems with sleeping due to his back pain. Typically he wakes a couple of times during the night and on average he gets only five to six hours’ sleep in broken shifts. He uses ice packs and a gel belt to help him alleviate his pain. He continues to perform exercises at home as shown to him by his physiotherapist.
42 The plaintiff’s current treatment involves seeing his general practitioner and also myotherapist, Ms Hayes. She frees up all his muscles so he can get through the day with some sort of relief, enabling him to shower and dress himself and manage day to day at work as well. With her treatment he can manage to do a lot of things himself and he manages with his pain. He tries to see her every week and sometimes he needs treatment twice a week. He disagreed that his condition overall had improved quite dramatically from where he was two or so years ago. He has slight improvement for a couple of days after treatment then his condition returns to what it was like before. If he does not see Ms Hayes weekly, he cannot manage; he cannot go to work.
43 The plaintiff is worried and concerned about his future given the longstanding nature of his back pain. He has not wanted to see a surgeon because he does not want to undergo surgery.
Restriction on Activities
44 Because of his back pain, the plaintiff is restricted in his ability to lift and play with his children, who are aged seven and three, and do normal activities fathers do. He can, however, lift his three year old son out of the car.
45 The children are becoming more active so he feels the restrictions in his ability to do things with them, more than on a regular basis. When he tries to do things, such as play ball games, he gets increased back pain.
46 The plaintiff is very conscious of the need to keep in work to support his family and he protects his back by limiting the amount of things he does to play actively with his children.
47 In cross examination, the plaintiff agreed that he is able to go out for dinner with friends and go to restaurants. He has not been to the movies for a fair while. He goes on family holidays. Last Christmas he and his family flew to Surfers Paradise for about a week. On re-examination, the plaintiff said he had pain travelling on the plane and he had great difficulty with the family luggage.
48 The plaintiff’s wife is presently working three days a week and has worked as an import/export clerk. His increased income had contributed to her reducing her amount of work to three days a week.
49 The plaintiff enjoys playing golf but he is limited in his ability now to play golf as he cannot swing in the same manner.
50 Prior to the incident, the plaintiff had done a lot of work around the house, including laying floorboards, tiling, painting and building the back shed and pergola. Rendering and tiling of the front porch still needs to be done but he has been unable to finish these tasks because of his back injury. He also has been unable to complete the landscaping work required around his house and he cannot do the gardening – tasks he would have done if he had not been injured. He feels frustrated about his inability to do these tasks.
51 Because of longstanding back pain, the plaintiff has become frustrated and irritable. His personality has changed and he is a lot more short-tempered than he used to be and argues with his wife more frequently. The plaintiff’s back pain limits his ability to engage in sexual activity and his intimate relationship with his wife has suffered as a result.
Lay Evidence
52 The plaintiff’s wife, Natasha Velevski, swore an affidavit on 4 May 2010. She first met the plaintiff in 1993 when they started going out together, and they were married in 2002.
53 Mrs Velevski recalled the plaintiff’s car accident in 1995 when he suffered a broken left arm and back injury. Over time, the plaintiff seemed to recover from those injuries, and leading up to the incident he was fit and active although he experienced occasional back pain at the end of a day’s work, which she thought would happen about once or twice a year. The plaintiff had physiotherapy very occasionally and took Panadeine on a very irregular basis.
54 Prior to the incident, the plaintiff enjoyed playing golf and riding motorbikes, which he would do every couple of weeks. He was also a very good handyman and did things around the house, like painting, tiling and building a pergola.
55 Further, before the incident, he would occasionally help her around the house with housework and was a very active father to their daughter, whom he would bathe. He also used to ride a bike with his daughter.
56 Because of his problems coping, the plaintiff is not able to help around the house anywhere near like he used to. Landscaping and tiling which needs to be done is unfinished because of his back condition. Because she cannot get help around the house from the plaintiff like she used to, she has had to reduce the days she works from four days a week to three to enable her to do what is required around the house.
57 Mrs Velevski and the plaintiff used to lead an active life, regularly going to his brother’s farm at Heathcote to ride motorbikes. They went out for dinner and had get togethers with friends. They enjoyed holidays together in places like Western Australia and Queensland.
58 Before the incident the plaintiff was a happy, bubbly sort of person. Since the accident there has been a distinct change in his personality – he is much more tired and grumpy, and they argue a lot more than they used to.
59 The plaintiff finds his work as a building supervisor very difficult to maintain. He is very tired when he comes home at the end of the day and needs to rest and lie down and take it easy.
60 Mrs Velevski has noticed the plaintiff’s sleep has been badly affected by his back injury. He does not sleep well and he tosses and turns frequently because of his back pain.
61 The plaintiff’s back pain interferes with his ability to have sex and their intimate relationship is not as close or satisfying as it was before the incident.
The Plaintiff’s Medical Evidence
62 The plaintiff first attended Dr Navani on 9 June 2006, three days after the incident.
63 Anti-inflammatories were prescribed, investigations arranged and the plaintiff was referred to Dr Stockman. A return to work was attempted but failed, with the plaintiff experiencing increased mid and lower back and right leg pain.
64 Dr Navani noted that the plaintiff was involved in the second car accident where he jarred his neck quite badly. Dr Navani thought that this accident also temporarily considerably worsened the plaintiff’s mid and lower back pain which gradually settled back to its former level of pain and limitations.
65 Following that car accident, Dr Navani recommended the plaintiff participate in a gymnasium/swim program because of ongoing symptoms due to his back and neck injury he sustained in that accident.
66 Dr Navani, most recently reported on 1 October 2009.
67 Dr Navani commented that the plaintiff continued to be symptomatic, mainly due to his back condition, suffering from chronic back pain and stiffness. The plaintiff complained of mid and lower back pain with pain radiating down his right leg with intermittent numbness of his right foot consistent with the L5-S1 disc protrusion and impingement of the S1 nerve root. The plaintiff was unable to sit, stand or walk for twenty minutes without stretching and taking rests. His driving was limited to thirty minutes and he needed to stretch and change his position to relax his back spasms and stiffness.
68 Dr Navani considered that the plaintiff had been fortunate to successfully return to work on alternative duties. He noted the plaintiff continued to experience frequent intermittent exacerbation of his back pain and spasms and continued to rely on home exercises and masseur intervention to obtain some relief, together with simple analgesia.
69 Dr Navani thought that the plaintiff had suffered a permanent impairment of his back. This had stabilised, with restriction in functional capacity and persistent symptoms with intermittent exacerbation.
70 Since June 2006, the plaintiff has attended Vic Care Myotherapy, where he has seen Ms Hayes.
71 When she last reported at the end of 2009, Ms Hayes noted that the plaintiff’s condition had been managed to enable him to resume the majority of his activities of daily living independently with reduced pain and improved movement. She noted the plaintiff was aware that any lifting or repetitive movement was likely to exacerbate his condition and avoiding those triggers was essential. She considered the plaintiff’s condition was of a chronic nature in which the possibility of further aggravation or deterioration could not be excluded, in which case, she thought the plaintiff may require a more invasive management approach.
72 Dr Alex Stockman, rheumatologist, first saw the plaintiff on referral from Dr Navani on 2 August 2006 for assessment of back pain and right-sided sciatica.
73 The plaintiff told Dr Stockman of the incident and at the time of examination reported very little improvement. There was left lumbar region pain also involving the lower thoracic region of the spine. There was also pain radiating down the back of the right thigh to the knee. At the time of that examination, the plaintiff was taking Panadeine Forte four to six times a day.
74 Dr Stockman obtained a history of the plaintiff’s previous problems with thoracic back pain when the plaintiff was aged eleven.
75 On examination, there was limited movement of the lumbar spine in all directions. Straight leg raising was reduced bilaterally to sixty degrees but there were no neurological abnormalities in the lower limbs. The plaintiff was tender over the lower limbs and the upper sacrum.
76 Dr Stockman commenced the plaintiff on Celebrex, and on review on 26 August 2006, the plaintiff felt no better and Dr Stockman recommended continuing physiotherapy.
77 When seen for the last time on 30 January 2007, the plaintiff told Dr Stockman he was making very slight progress and was able to walk further but had been involved in a car accident and since then his low back pain worsened and the pain in his right leg was radiating all the way to his toes. Further, since that time he had been experiencing a lot of neck pain and generalised headaches.
78 The plaintiff reported that so far there had been no improvement with physiotherapy, hydrotherapy and Panadeine Forte, three to four a day.
79 On examination, the plaintiff had limited movement of his cervical and lumbar spine. There was similar reduction of straight leg raising and there was tenderness over the lower lumbar spine.
80 Dr Stockman recommended the plaintiff be referred to a multi-disciplinary rehabilitation program. Dr Stockman increased hydrotherapy to three times a week and he recommended continuing physiotherapy and the regular use of analgesia and he re-commenced the plaintiff on Celebrex. He also suggested an epidural injection to relieve the sciatic type pain in the right leg, referring the plaintiff back to his local doctors to discuss these suggestions.
81 Dr Stockman noted an MRI scan showed degenerative L5-S1 disc with right paracentral disc protrusion.
82 Dr Stockman felt the plaintiff’s back pain was consistent with the MRI findings of disc degeneration/prolapse at L5-S1 – a condition significantly aggravated by the nature of his work. Dr Stockman thought it was difficult to say whether the aggravation from the second car accident was temporary or permanent. He expected the plaintiff would make some progress with regard to his pain, noting that most people with lumbar disc degeneration/protrusion do respond to conservative treatment.
83 Dr Stockman considered the plaintiff was likely to be left with some residual disability and should avoid lifting objects of more than ten kilograms.
84 The plaintiff attended Jazmin Cruz, physiotherapist, in relation to management of his neck after the second car accident.
85 Dr Clayton Thomas, rehabilitation specialist, saw the plaintiff at the request of his solicitors on 4 December 2009.
86 On examination, the dominant problem was one of lower back pain with problems on prolonged sitting. There was also some radiation down the right leg and some of less significance down the left.
87 On examination, the plaintiff was tender in the lower lumbar spine. Thoracolumbar range of movement was fifty per cent of normal. Neurologically lower limb reflexes were present and symmetrical and straight leg raising reproduced lower back pain.
88 Dr Thomas noted the MRI revealed an isolated degenerative disc at L5-S1 and there was also a right paracentral posterior disc bulge. The 2006 CT scan revealed a disc bulge at L5-S1 and facet joint degenerative change.
89 Dr Thomas thought the plaintiff sustained an aggravation of spondylosis to his lumbar spine in the accident, rendering him with symptomatic spondylosis. The plaintiff also had pain arising from the lower lumbar segment, being the lumbar L5 disc and facet area.
90 Dr Thomas considered the plaintiff’s prognosis was for persistent pain in the lumbar spine and that the injury should stabilise. He did not consider surgical intervention was required. He thought the best form of intervention would be for the plaintiff to continue with an active exercise program, including core stability, gentle stretching and aerobic exercise.
91 Dr Thomas considered the plaintiff had a work capacity but that he would not have the capacity to perform unrestricted manual duties nor to return to his pre-injury position in the warehouse.
92 The plaintiff struck Dr Thomas as a genuine man with an organic problem who was clearly doing the best he could for his situation and remained at work full time despite his ongoing symptoms.
93 Dr Thomas thought the plaintiff would be able to work lifting up to ten kilograms between waist and chest height at bench height, but he would not be able to perform such lifting frequently below waist height or above chest height. In such a position he thought the plaintiff could work up to but not beyond twenty hours a week. If lifting restrictions were reduced to five kilograms, he thought the plaintiff could work up to twenty eight hours a week. There were no expectations, given its longevity, that the plaintiff’s condition would improve.
94 Dr Thomas thought that the nature of restrictions placed upon him were due to the organic nature of the problem.
95 Mr Kevin King, orthopaedic surgeon, examined the plaintiff for medico-legal purposes in April 2010.
96 The plaintiff told Mr King of some mild backache at the time of the 1995 car accident and that low back region pain settled completely after six months.
97 The plaintiff told him that after the incident occurred, there was a complicating factor, being a car accident in October 2006, as a result of which he told Mr King his low back pain became fifteen to twenty per cent worse, but then gradually wore off and returned to the pre car accident level of constant aching pain.
98 Mr King noted the plaintiff had worked in the building industry for the last two years with duties involving negotiating work and supervising subcontractors. The plaintiff was able to manage the job without losing any time because there was no heavy manual work involved. The plaintiff advised it was a senior responsible position representing long term employment.
99 The plaintiff complained to Mr King that his main worry was of constant aching in the low back, always present, fluctuating in intensity. He also had a constant nagging ache in both buttocks and thighs with tingling in the outer borders of both feet with moderate sciatic pain.
100 The plaintiff told Mr King he was taking two Panadeine Forte a day and that he did not think he could do his old warehouse storeman job.
101 On examination, there was marked limitation of thoracolumbar spinal movement by pain and spasm – approximately one third of the normal range of all movements was present. Straight leg raising was to sixty degrees on the right and to seventy degrees on the left. There was diminished right ankle jerk. Subjectively, there was slightly diminished sensation to light touch over the outer borders of both feet, corresponding to the S1 nerve root distribution on both sides.
102 Mr King thought the CT scan of the lumbar spine taken on 16 June 2006 showed a large generalised disc protrusion at L5-S1, both central and extending out laterally on both sides into the neural foramina. He noted that this large disc prolapse occupied approximately the anterior one third of the spinal canal at the L5-S1 level.
103 An MRI scan of the lumbar spine taken on 9 August 2006 showed marked loss of signal on the L5-S1 disc with a moderately large generalised posterior disc bulge at that level.
104 Mr King concluded that this “impressively straightforward, formidable man” would appear to have sustained an acute injury to his lower back in the incident. It appeared he had sustained an acute injury to the lumbosacral region of his spine, resulting in a large generalised disc prolapse at L5-S1 involving the S1 nerve roots on both sides, resulting in the instant onset of bilateral sciatica, noting the MRI and CT scans confirmed his diagnosis.
105 Mr King considered the plaintiff’s condition had stabilised and no surgical treatment was recommended. He thought the plaintiff had obviously been left with a significant long term problem in terms of low back pain and stiffness, with persistent mild residual bilateral sciatica nerve root irritation and it would not be possible for the plaintiff to return to heavy manual work at any time in the foreseeable future. He thought the plaintiff would always be subject to constant low back pain and sciatica with the possibility of periodic flare ups with even mild exertion.
106 Mr King could find no evidence of any sort of psychological overlay and noted the plaintiff gave the impression of being very strongly motivated. He thought the plaintiff should be able to continue in his present job for the foreseeable future, subject to periodic flare ups.
107 In Mr King’s view, the second car accident caused a temporary flare up of the plaintiff’s low back problem and some damage to the cervical discs but there seemed to be no long term aggravation of the back condition as a result thereof.
Investigations
108 A CT scan of the lumbosacral spine was organised by Dr Navani on 16 June 2006. Findings at L3-4 and L4-5 were unremarkable. At L5-S1 there was a large broad based disc prolapse containing calcification within, causing compression of the thecal sac, as well as compromising both sides of S1 nerve roots while they were traversing that disc level. There was bilateral severe facet joint osteoarthritis with prominent osteophyte formation. There was thickened ligamentum flavum of both sides. Those factors at that disc level resulted in borderline spinal canal stenosis.
109 Dr Stockman arranged an MRI scan of the plaintiff’s lumbar spine on 9 August 2006. It was concluded that here was shallow right paracentral L5-S1 disc protrusion causing mild indentation of the thecal sac to the right of the midline. Compensation Documentation
110 By letter dated 28 December 2008, the plaintiff’s Claim for Compensation pursuant to s.98C of the Act was accepted in relation to his lower back condition.
The Defendant’s Evidence
111 The defendant tendered a summary of the plaintiff’s taxation documents which set out the following income:
Financial Year Ending Gross Income 30 June 2003 $28,171.00 30 June 2004 $29,750.00 30 June 2005 $40,549.00 30 June 2006 $30,801.00 30 June 2007 $34,125.00 30 June 2008 $42,259.00 30 June 2009 $81,909.00
Surveillance
112 Counsel for the defendant admitted that there was 4 minutes of surveillance in February and March 2007; on 14 July 2007 - 6 minutes; on 8 August 2007 - 3 minutes; on 26 February 2008 - 3.4 minutes; on 11 and 15 July 2009 - 4 and 13 minutes; on 18 and 21 October 2009 - 13 minutes; on 15 January 2010 - nearly 3 minutes; and on 11 February 2010 - nearly 29 minutes.
113 Thus there was just over two hours of film in total taken over nearly three years.
114 None of this surveillance film taken of the plaintiff was shown during the hearing.
The Defendant’s Medical Evidence
115 The plaintiff was examined by Mr John O’Brien, orthopaedic surgeon, on 23 June 2009.
116 The plaintiff told Mr O’Brien he continued to experience constant low back pain which radiated down the posterior aspect of both legs into his feet. The plaintiff described the severity of this pain as approximately eight out of ten, particularly aggravated by sitting and other prolonged movement.
117 The plaintiff told Mr O’Brien that when aged approximately eighteen, he had an episode of upper back pain which continued for several months, eventually resolving, after which he returned to a fully active lifestyle. He also told Mr O’Brien about the second car accident in October 2006, which he said did not really have any substantial effect on his leg and back pain.
118 On examination, the plaintiff’s thoracolumbar spine was straight with some flattening of the normal lumbar lordosis. Lumbar flexion was to fifty degrees, with five degrees of extension accompanied by the complaint of significant back pain. Lateral flexion was approximately fifteen degrees bilaterally with some complaint of back pain and there was mild tenderness described in the midline at the proximal lumbosacral junction. There was straight leg raising to sixty degrees on both sides. There was no evidence of any neurological deficit in the lower limbs.
119 Having seen the 2006 CT and MRI scans, Mr O’Brien thought, from a clinical perspective there was certainly no evidence of frank disc protrusion or indeed nerve root compromise. In his view, it appeared the plaintiff’s signs now suggested the presence of non specific back and leg pain which appeared to have become chronic, as a result of which employment was a significant contributing factor.
120 Mr O’Brien thought the clinical condition was obviously stable. He noted the plaintiff reported persistent pain, although at present it appeared that treatment was minimal and confined basically to fortnightly myotherapy. Mr O’Brien suggested there was no requirement for any conservative treatment nor did he consider there was any need for further investigations.
121 However, given the chronic nature of the plaintiff’s pain, Mr O’Brien commented that he would be guarded as to the prognosis, commenting, that despite the described severity of pain, the plaintiff had demonstrated mild disability and he was unable to return to his pre injury job which involved moderate lifting. He suggested that given the chronic nature of pain, the plaintiff would not be able to return to unrestricted employment, but that he was capable of modified duties with restrictions on heavy or repetitive lifting. He considered the plaintiff was no doubt physically capable of his current job. Mr O’Brien suggested that the plaintiff’s general, domestic and social and recreational activities were only mildly restricted and it appeared this was likely to be the ongoing situation.
122 In Mr O’Brien’s view, there was no incapacity currently relating to the car accident.
Other Evidence Relied upon by the Defendant
123 The defendant tendered a statement made by the plaintiff on 6 February 1999 in relation to his January 1995 car accident.
124 The plaintiff stated that in that accident, he was run over while lying on the ground. As a result of the accident, he suffered a broken left arm, chest injuries, injuries to his neck and back, head injuries and cuts and abrasions. He was hospitalised for four days and a metal plate was inserted into his upper arm. He then rested at home in bed for another four days.
125 Prior to that accident, the plaintiff was fit, young and healthy. He played soccer at school and achieved a brown belt in karate, which he was still engaged in at the time of the accident. He was also going to a gymnasium and engaging in fitness training. Since that accident, he has been unable to do karate, attend the gymnasium or do other sports. He had difficulty sleeping, standing, sitting or walking for extended periods and problems driving for a while because of problems sitting for a long time and having to use his rear vision mirror to reverse. He had problems carrying heavy things in his left arm. Although it was variable, the pain in his neck, back and arm was constant. He was nervous and irritable and seeing a psychologist. He had gained three kilograms since the accident.
Overview
126 Whilst the plaintiff had suffered injury in accidents both before and after the incident the subject of this application, these issues were not pursued by the defendant.
127 It is not disputed the plaintiff suffered a compensable injury to his back in the incident on the said date.
128 Whilst Mr King and Dr Stockman considered the plaintiff suffered a prolapse in the incident, this view was not shared by Mr O’Brien, who thought the plaintiff suffered aggravation of degenerative change in his lumbar spine.
129 The issue in this case, however, is the impairment, not the injury, therefore having found a compensable injury it matters not that there is some difference in medical opinion as to the diagnosis and the precise identification of the existence of a prolapse.
130 I must be satisfied whether the consequences to the plaintiff of the lower back injury when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c).
131 It was submitted by counsel for the defendant that this was a range case and that the plaintiff’s impairment did not meet the test of “serious”.
132 It was submitted by counsel for the defendant that the plaintiff’s injury, which could be regarded as “significant”, was not “serious”, relying on Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, Sabo v George Weston Foods [2009] VSCA 242 and Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 and Sabo v George Weston Foods [2009] VSCA 242, at para 74.
133 In Sumbul Chernov JA stated at para 24 that in circumstances where a plaintiff was capable of returning to alternative work then unless there was some other evidence that he suffered significant pain or that he otherwise suffered significantly from the injury then it would ordinarily be difficult to conclude that the pain and suffering consequences of it are at least very considerable.
134 As the Court of Appeal stated in both Stijepic and Sabo, a determination of serious injury involves a value judgment in which matters of fact, degree and of impression are operative: see also Dwyer v Calco Timbers Pty Ltd [2006] VSCA 187, at 41.
135 The Court must evaluate the consequences of the particular impairment and then make an objective determination by comparing the consequences with other cases in the range of possible impairments. In addition, the Court must be satisfied that the consequences are more than significant or marked.
136 Arguing against the seriousness of the plaintiff’s impairment, counsel for the defendant relied upon the fact that the plaintiff was able to work full time and drive long distances to and from work since February 2008 without the need to take any time off because of his back condition.
137 It was submitted that as the plaintiff’s job as building supervisor did not require any manual work and he had qualifications as a civil engineer, an inability to perform heavy physical work was not relevant to any claimed impairment.
138 On that basis, it was submitted that there was not even a Farlow type argument in this case as the plaintiff is not a labourer.
139 Counsel for the plaintiff submitted that the plaintiff is restricted in the type of work he can do in the future and although working full time, he has difficulties as a result of his back condition in his present job.
140 Clearly, whilst the plaintiff is able to work full time as a building supervisor, he no longer has a capacity for unrestricted physical work – a view shared by all medical practitioners in this case.
141 Whilst qualified academically in civil engineering, the plaintiff was engaged in physical work as a storeman at the time of the incident and had been for some years prior thereto.
142 The plaintiff was unable to return to lighter work in his present occupation for two years because of his back pain. Further, he returned to work at that time because he was not improving staying at home..
143 Loss of the capacity to perform heavy work is not some sort of theoretical loss in this case where the plaintiff has a demonstrated manual work capacity. Whilst he is earning good money at the moment, it may be that in the future this lucrative work would not be available to him and he would then be limited in the ranges of jobs he could undertake and he would be precluded form heavy work because of his back condition.
144 It is significant that whilst working in his present light job, the plaintiff often needs to lie down during the day at work and after work because of back pain He avoids any heavy work, leaving those tasks to others on site. However, on the few occasions he has to do hands on tasks, he suffers immediate pain.
145 Further, the plaintiff has problems driving to and from work and he has to take breaks along the way every half hour or so to stretch his back.
146 I accept that the plaintiff’s ability to continue working is made possible by ongoing regular myotherapy and taking painkilling medication.
147 I found the plaintiff to be a very candid, honest witness. No attack was made on his credit by counsel for the defendant.
148 The plaintiff is clearly a motivated man who after two years’ absence from the workforce because of his back injury has been able to get himself back to well paid full time work.
149 He is to be commended in this regard. As Nettle, JA commented in Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 4, that he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
150 The plaintiff’s stoicism cannot hide the fact that back pain is a major component in his life: see Buchanan, AJ in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.
151 I do not accept that the fact the plaintiff has worked full time for the last two years is indicative of significant recovery as submitted by counsel for the defendant.
152 I accept that there are serious long term consequences to the plaintiff in terms of his employment capacity relating to his back condition.
153 The plaintiff is a thirty-four year old man with a clear pathology with no attack on his credit who requires ongoing medication: See Haden Engineering Pty Ltd v McKinnon (supra).
154 The plaintiff has never been free of back pain since the incident. He also suffers right leg pain and pins and needles into his heel. His ability to sit or stand for extended periods is limited and he is unable to bend, lift or twist without experiencing back pain.
155 Whilst not interfering with his work or resulting in cognitive impairment resulting from taking sleeping tablets, the plaintiff has very regular problems with sleeping due to his back pain and averages only five to six hours sleep per night in broken shifts.
156 The plaintiff requires ongoing treatment and is maintained by myotherapy which he needs as much as twice a week. He has Panadeine Forte on pretty much a daily basis, usage of which is restricted by resultant stomach problems. He needs sleeping tablets, whether Stilnox or some other medication to help him sleep - a problem confirmed by his wife whose evidence was not challenged.
157 There is no indication that the plaintiff will recover from his back problems. He continues to require myotherapy treatment and medication to keep working. I do not accept the submission by counsel for the defendant that because the plaintiff recovered from the injuries suffered in 1995, he will also recover from his present back problems.
158 The plaintiff is unable to complete handyman tasks around the house which he had commenced prior to the incident. His ability to do gardening is restricted. Although he can still go on holidays with his family, he has problems with plane travel and carrying the family luggage because of his back condition.
159 Whilst not really playing much in the way of sport, he is restricted in general physical activities. He has problems lifting and playing with his young children which were confirmed by his wife. The plaintiff’s back condition has interfered with his sexual relationship with his wife.
160 Whilst extensive film was taken of the plaintiff’s activities over a number of dates, no film was shown during the hearing. There was no evidence contradicting the plaintiff’s claimed level of pain and disability. To the contrary, his wife’s affidavit supporting his complaints was unchallenged.
161 Further, there was no medical evidence that the plaintiff’s presentation was functional or non-organic and that he in any way exaggerated his condition on examination.
162 I am satisfied that the plaintiff’s back condition is long term as there has been no improvement since the incident four years ago.
163 I accept that the impairment to the plaintiff’s back resulting from the incident is “serious”.
164 Accordingly, I grant the plaintiff to bring leave to bring proceedings for damages for pain and suffering in relation to the incident.
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