Wachter, Stephen v Lafarge Plasterboard Pty Ltd
[2009] VCC 1491
•13 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-05-03636
| STEPHEN WACHTER | Plaintiff |
| v | |
| LAFARGE PLASTERBOARD PTY LTD | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 and 4 September 2009 |
| DATE OF JUDGMENT: | 13 October 2009 |
| CASE MAY BE CITED AS: | Wachter, Stephen v Lafarge Plasterboard Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1491 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – serious injury application – pain and suffering
– relevance of treatment which ameliorates symptoms.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Waugh | Ryan Carlisle Thomas |
| For the Defendant | Mr J L Batten | Lander & Rogers |
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding seeking damages for injuries suffered in the course of his employment with the defendant on or about 22 July 2002, when he was pushing against a large paper reel (“the incident”). The body function relied upon by the plaintiff in bringing the proceeding is the low-back and/or the lumbar spine. Leave is sought with respect to pain and suffering damages only.
2 In support of the application, the plaintiff relies on three affidavits sworn 7 May 2005, 12 December 2006 and 19 August 2009 respectively in which he deposed:
•
That he left school at the age of fifteen and thereafter had been essentially employed in labouring-type work which involved strenuous physical activity. He said that before the incident he was fit and well and had no physical restrictions.
•
That following the incident he suffered from continuing symptoms of back pain, this had limited him to working only in restricted duties and he had not, since the incident, been able to engage in unrestricted work. He was dismissed by the defendant in February 2004 by reason of the fact that he could not return to his pre-incident duties and the plaintiff subsequently found work servicing car batteries. He described this work as not being a heavy job, the batteries weighing only 10 kilograms or less. He said however that being on his feet all day with a requirement to stoop and to bend caused an exacerbation of his symptoms, such that he was admitted by his general practitioner to hospital and given injections of pethidine and morphine. By reason of the exacerbation of his symptoms, the plaintiff left his employment and subsequently found work as a forklift driver in late 2004. Since that time he has been employed as a forklift driver.[1]
•
In his first affidavit, the plaintiff said that he suffered from pain every day and that he managed this pain by the daily use of Tramal and Temazepam. He said he had not had sexual relations with his wife for some three years by reason of the pain and the fact that he had lost interest. He described having to be very careful with his back, and that activities such as walking too long or too far caused a flare-up in his symptoms. In the past he had undergone a series of nerve blocks undertaken by Dr Jeffries and had had an epidural steroid injection. His treatment at that time involved physiotherapy and acupuncture. He described his pain as being worse in the low-back on the left side. He said that he experienced pain into his rectum, into both his legs, but mainly his left leg, and that he suffered from these symptoms every day but that the level of his pain varied.
[1] In his first affidavit, the plaintiff described the fact that he suffered from pain every day, the level of which fluctuated.
3 The plaintiff swore his second affidavit on 12 December 2006. At that time he described the condition of his back as deteriorating. He said that he had more bad days and that he made use of medication and sometimes alcohol to deal with his symptoms. He used Tramal every day and made use of Indocid suppositories at least every week. He took Temazepam on a regular basis to help him sleep. He described the level of his symptoms as being present all the time. He said, however, the pain varied. He described the pain as always being present in his low-back and as travelling into his rectum, groin and down his legs. He said the left leg was worse than the right. He said that on weekends he could very little other than to rest and undertake gentle exercises on a physiotherapy ball to help relieve his pain.
4 In his third affidavit, the plaintiff described undergoing a medical procedure described as a bilateral pulse radio frequency denervation (“RFD”) treatment to the L4 dorsal root ganglia. He said that the treatment was very successful and that he had achieved almost complete relief from all his pain. He described the return of his sexual desire and the ability to go for long walks. Notwithstanding the fact that he had to treat his back carefully, he said that his back pain, rectum pain and left leg pain was gone.
5 The plaintiff said that he had been told that the treatment which he had undergone would not cure his injury but would only provide pain relief. He said that the pain relief which he experienced continued until October/early November 2008 when there was a gradual onset of pain to its previous level. He underwent a second RFD procedure on 23 April 2009. Whilst he described his initial reaction as involving an unpleasant numbness in his face and a cold ache into his legs, he said that after a couple of weeks he again experienced complete relief from his pain. He said that he had been again advised that the treatment which he had undergone would not cure his problem and would only provide him with temporary relief. He described the treatment itself as being very unpleasant. It involved him lying on his stomach and having a series of injections into his back. The procedure had to be undertaken whilst the plaintiff was conscious as it was his job to identify whether the needles which were injected made contact with the correct nerve, this being identified by the pain which the plaintiff experienced when the needle contacted the nerve. With respect to the procedure, the plaintiff said:
“I do not wish to undergo this procedure every twelve months. I do not
think I could handle it.”
6 The plaintiff deposed that by reason of the restriction in his ability to work, which was caused by his injury, his wife had to take up full-time work and that but for his injury his wife would have been employed as a full-time mother caring for his daughters who are presently in Years 9 and 12.
7 The plaintiff gave evidence of relatively short compass in the proceedings. He described his pre-incident work as involving climbing, twisting, bending and repetitive lifting. It was clear that the plaintiff had no difficulty performing those activities and it was my impression of the plaintiff that he took pride in his physical strength. He said that following his injury he performed light restricted work with the defendant which required him to handle weights of between 7 and 11 kilograms and that he was managing this work notwithstanding that he required the use of both Tramal and Vioxx. He said that in 2004 he was referred for rehabilitation and pain management as his use of prescribed medication, together with alcohol, had got out of hand. He said that this, however, was no longer the case.
8 He described his position following the RFD treatment as being pretty good. He was able to undertake the work required of him as a forklift driver working 7.6 hours a day, five days a week. He said that with overtime, he worked on average 50 hours a week from Monday to Friday. He accepted that since the RFD treatment performed in March 2008 he had not needed medication and this was in contrast to his position before the RFD treatment when he was making use at various times of Tramal, Vioxx, Temazepam, Panadeine Forte and Tripolene. He described his mood as being good and as feeling generally happy. He said, however, that he did not like his present job and that he had applied for another job as a forklift driver. He described the problem with his present job as not being the work he was required to perform but the personality of his boss. He said that he was currently able to mow his lawn, undertake gardening with his wife, drive a motorcar without restriction and perform low-key maintenance upon his car. He was asked specifically:
“Q:
Is there anything that you want to tell his Honour? That is, involve in a domestic nature in and around your house, a car or maintenance, that you don’t do that you normally want to do?---
A: No, at the moment I can do the things I like to do. Q:
It is not a case now of getting flare-ups as you may have before the denervation, you are pain-free provided you watch what you do?---
A: Yeah.”[2] [2] Transcript (“T”) 30
9 The plaintiff qualified that evidence, however, by explaining that he took care with the activities he performed. He avoided heavy lifting and unguided movements which might aggravate his symptoms. He said that he undertook core strengthening exercises which he was able to undertake only whilst the RFD treatment remained effective. He said that, apart from heavy lifting and physical activity, there was no activity which he desired to do and which he presently avoided.[3] He said he was able to cope with his work as a forklift truck driver which involved him spending 90 to 95 per cent of his day getting on and off his forklift.
[3] T 33
10 The plaintiff was asked about his RFD treatment. He said the treatment involved him lying on an x-ray table and being administered an anaesthetic which resulted in him being half awake and half asleep. He described the treatment as usually taking one hour and said that he was unable to be given a general anaesthetic as he had to be awake for the procedure. He said that at the present time he was pain-free but was apprehensive about his future. He had been told that the RFD treatment might last from three months to five years.
11 In re-examination, the plaintiff described the level of his pain when it returned after the first RFD treatment as being at a level of 7, 8, 9 and 10 out of 10. He said that but for his back injury he would have had no hesitation in leaving his present job to seek alternative work.
12 He was asked about undergoing further RFD treatment. He said he would undergo one further procedure, having regard to the improvement which the treatment had effected in his life, particularly with his children, but that after that he thought he would probably come to a point where enough was enough. When asked to describe specifically what he went through in the course of the procedure, the plaintiff became significantly distressed. He described the level of discomfort as being over 10. He said the procedure was very painful. He said it was “like your soul is being ripped out”.[4] He said the procedure involved probing with a needle and identifying the appropriate location by the pain evoked in response to the probe. He described the procedure as being a very painful treatment and that it was for this reason that he committed himself to probably undergoing only one further procedure. He said that when his symptoms returned after the first RFD treatment, he commenced taking medication again and abusing the use of alcohol, and that the medication he employed was to control pain, depression and to help him to sleep.
[4] T 43
13 The plaintiff conceded that after the first RFD treatment there was a very dramatic change in his symptoms, that he was very happy with the result and that this continued to be the case until his pain returned. He accepted that at the present time he would undergo a further procedure but after that he presently did not know.
Further Affidavit Evidence
14 The plaintiff’s wife, Mrs Alison Wachter, has sworn two affidavits dated 12 December 2006 and 1 September 2009 respectively. The content of these affidavits were not challenged by the defendant. In her first affidavit, Mrs Wachter deposes to the fact that whereas before his injury the plaintiff was a fit and active man, the effect of the injury had caused him to experience pain such that he was restricted in his ability to walk; he was required to rest to protect his back; he was unable to perform activities such as mowing the lawn and doing gardening and he commenced abusing alcohol in order to help deal with his symptoms.
15 In her second affidavit, Mrs Wachter described the improvement in the plaintiff’s symptoms following the first RFD treatment, the return in the plaintiff’s symptoms approximately eight months later and the improvement gained from the second RFD procedure undertaken in April 2009. I consider her comments:
“However we know that the treatment is not a permanent cure for Steve’s pain and that he will face a return of the symptoms. I dread the return of the symptoms because of the impact it will have again on Steve and our family”[5]
as providing telling support for the evidence given by the plaintiff as to the severity of his symptoms and their impact upon his life and lifestyle prior to the administration of the first RFD procedure.
[5] Plaintiff’s Court Book (“PCB”) 23F
The Medical Evidence
16 In a report dated 10 April 2003, the plaintiff’s general practitioner, Dr G Lumbs, described the plaintiff presenting to him on 26 July 2002 in significant pain and having difficulty getting on and off his examination table. He reported the results of an MRI scan undertaken on 13 September 2002 as revealing multi-level degenerative desiccation of four lumbar discs with the presence of a broad based posterior disc bulge at the L4-5 level which indented the thecal sac.
17 In a further report dated 11 September 2007, Dr Lumbs described the plaintiff as requiring narcotic analgesia in the form of Tramal SR and anti-inflammatory medication as necessary to deal with severe exacerbations of his symptoms. He said the plaintiff had experienced severe depression and anxiety which related to his pain and said that his chronic pain emanated from genuine objective physical injuries to his lumbar spine. He expressed the opinion that the plaintiff was permanently unfit for heavy forms of work but he was able to be employed in suitable lighter forms of work including forklift driving.
18 In a report dated 11 July 2009, Dr Lumbs contrasted the plaintiff’s position before and after his RFD treatment. He said before the RFD treatment the plaintiff had undergone:
“Extensive physiotherapy, had a trial of various narcotic analgesics, used various anti-inflammatory agents, underwent hydrotherapy, epidural injections with cortisone, pain management at the Western Hospital Pain Clinic, functional rehabilitation at the Dorset Rehabilitation Hospital and the use of TENS machine. Unfortunately, all of the aforementioned measures only afforded temporary relief of his symptoms.”[6]
[6] PCB 28
19 He described the plaintiff’s condition following his RFD treatment as follows:
“Mr Wachter was able to cease all his painkillers and likewise reduce his alcohol intake. His activity level has increased and [he] consequently lost six kilograms in weight due to increased ability to walk. In particular, his rectal, testicular, leg and back pain resolved. He only experienced one very minor flare in his pain which lasted a few hours. He was able to continue full-time work as a forklift operator and engage in all activities of daily living.”[7]
[7] PCB 29
20 Dr Lumbs described the plaintiff presenting in December 2008 with an exacerbation of his low-back pain associated with bilateral sciatica and rectal pain in the absence of any history of overt trauma. Thereafter he described the plaintiff undergoing a further RFD procedure on 27 March 2009, following which his pain score was zero when assessed at the Pain Clinic on 7 May 2009.
21 The plaintiff was referred to Dr C Thomas, a consultant in rehabilitation and pain medicine, in March 2004. He presented with low-back pain, more on the left than the right, and numbness into his left leg. He was using medication which included Vioxx (an anti-inflammatory) and Tramal. Dr Thomas described the plaintiff as being very fear avoidant and being reluctant to move his back beyond what he felt to be a comfortable range. He described the plaintiff as suffering from an undifferentiated lower back pain problem.
22 In a report dated 16 February 2009, Dr Thomas expressed the opinion that the plaintiff’s pain was associated with an aggravation of spondylosis in his lower back which was also with an element of L4-5 and L5-S1 facet joint degeneration. He described the plaintiff’s prognosis as being one for “persistent pain and disability”. He said that the treatment provided by RFD did not provide long-term durable improvement but did provide improvement which lasted for between nine to eighteen months. He said that the plaintiff should in the future avoid driving a forklift over uneven terrain as this would tend to jar his back. That he should avoid lifting at work as any weight beyond 10 kilograms was likely to significantly aggravate his back condition. He opined that the plaintiff would have permanent residual pain going forward.
23 In an undated report which was written sometime in 2006, Dr Andrew Jeffries, the Director of Anaesthesia and Pain Management at Western Health, noted that the plaintiff’s treatment and investigation had involved:
• an MRI of the lumbar spine • diagnostic medial branch blocks of the L4-5 and L5-S1 facet joints • a lumbar epidural steroid injection
• referral to a rehabilitation program
• psychological support by a clinical psychologist • in-patient treatment with a Ketamine infusion • oral analgesia including the use of Paracetamol, Codeine and Tramadol with limited effect • the trial of TENS therapy with no benefit • the use of oral anti-neuropathic medications with no improvement. 24 Dr Jeffries expressed a working diagnosis that the plaintiff had suffered an internal disc disruption of one or more of his lower lumbar intervertebral discs. He observed that the plaintiff had suffered significant losses in terms of his personal and work life as the result of his chronic back problem.
25 Dr Jeffries provided a further report dated 30 August 2009 in which he described a significant improvement in the plaintiff’s back pain following the initial RFD procedure which was undertaken in 2007 and the further RFD procedure which was undertaken in March 2009. He expressed the following opinion as to the effect of these procedures:
“Given limited worldwide experience with this procedure for discogenic pain, it is difficult to make conclusive statements about the natural history from here with regard to Mr Wachter’s back pain. However, information can be extrapolated from radio frequency treatments to other neurological structures in the lumbar spine such as the medial branches innervating the facet joints. In these examples it is known that axonal regrowth does occur over the subsequent 1-2 years and therefore pain can recur. From this experience, it is likely that Mr Wachter would need some further interventions in the future. We would hope that this would not need to be more frequently than annually or preferably bi-annually.
The risk of radio frequency denervation treatments in this region include bleeding, infection and damage to adjacent structures such as the somatic nerve roots, the paravertebral musculature and the paravertebral blood vessels. It is likely that these risks are quite low, in the region of a one per cent chance of significant problems, or less.
It is difficult to be certain as to whether or not the risks are increased significantly with repeated treatments and it is not known whether the efficiency of this treatment would decrease with repetition.
It can be the case in situations such as Mr Wachter’s that interventions such as radio frequency denervation treatment allows improvement in function, and decreased disability, such that improved core strength and stability ensures that once renervation occurs, the pain and disability is less than it was before.
In conclusion, it is likely that Mr Wachter will continue to require consultation with pain practitioners in the future, however, it is hoped that he will continue to maximise his degree of function and continue to participate fully in the workforce.”[8]
[8] PCB 50B
The Defendant’s Medical Evidence
26 The defendant relies on the following medical reports:
•
Mr Strangward, who reported on 26 August 2002 that the plaintiff presented with a prolapsed lumbar intervertebral disc, that most probably his major problem was at the L5-S1 level and that his condition had not stabilised.
•
Mr Michael Troy, who provided a report dated 24 January 2003. He diagnosed the plaintiff as suffering from multi-level degenerative disc changes at four levels in his lumbar spine, together with an L5-S1 nerve root compression and resultant sciatica. In a report dated 6 February 2003, Mr Troy expressed the opinion that the plaintiff’s symptoms did not relate to his July 2002 injury but rather that they related to the pre- existing degenerative condition in the plaintiff’s lumbar spine. I do not accept this analysis by Mr Troy which is simplistic and is not persuasive in suggesting that, whilst the incident may have exacerbated the pre- existing asymptomatic change, the exacerbation was no longer relevant.
•
Mr David Bowden, who examined the plaintiff in August 2003 and September 2003. He initially expressed the opinion that the plaintiff may have sustained a mild soft tissue injury to his lower back. In his second report, Mr Bowden expressed the opinion that from the physical point of view he did not believe there was any clear evidence of any ongoing physical problem.
•
Mr A Buzzard, who examined the plaintiff on 7 October 2004 and expressed the opinion that the plaintiff had suffered an aggravation of pre-existing degenerative disease in his lumbar spine, that from the physical point of view he suffered from a “light work back” but that his symptoms were exacerbated by a “psychological problem”.
•
Mr Michael Dooley, who examined the plaintiff on 23 February 2006 and expressed the opinion that the plaintiff suffered from an aggravation of pre-existing degenerative disc disease in his lumbar spine and had developed a chronic pain syndrome, the symptoms of which were out of proportion to the injury which he had sustained.
•
Mr Peter Kudelka, who expressed the opinion that the plaintiff’s symptoms, which were secondary to degenerative changes in his lumbar spine, had adversely affected all activities of daily living and significantly reduced the plaintiff’s capacity for work.
27 Whilst counsel for the defendant did not in the course of his submissions rely to any extent upon the medical evidence obtained by the defendant in which opinions were expressed:
(a)
that the plaintiff presented with functional symptoms which were out of proportion to his physical injury;
(b)
that the plaintiff’s symptoms were out of proportion with his physical injury;
it is appropriate nevertheless that I set out the reasons for which I do not find
those opinions to be persuasive, namely:
(i)
Each of the doctors retained by the defendant to examine the plaintiff, with the exception of Dr Bowden, saw him on only one occasion. This is to be contrasted with the medical opinions relied upon by the plaintiff which generally came from treating doctors who saw the plaintiff on a number of occasions and had a much better opportunity to assess the consistency of the plaintiff’s presentation, the severity of his symptoms and their cause;[9]
(ii)
The improvement in the plaintiff’s symptoms associated with the two RFD treatments which he underwent, in my opinion provides strong support for the position adopted by Dr Lumbs, Dr Thomas and Dr Jeffries that the plaintiff’s symptoms were organically-based;
(iii)
My strong impression of the plaintiff was that he was a stoic individual. I am satisfied, having considered his evidence, that of his wife and that of his treating doctors, in particular Dr Lumbs, Dr Thomas and Dr Jeffries, that the plaintiff did not exaggerate the symptoms from which he suffered prior to his RFD treatments. The fact that the plaintiff readily conceded the extraordinary diminution in his symptoms associated with his RFD treatment reinforces my assessment of the plaintiff that his presentation was totally inconsistent with a functional presentation.
(iv)
The behaviour of the plaintiff in continuing in employment notwithstanding the difficulty which he faced in managing his symptoms was a matter which I considered to be positively indicative of a desire in the plaintiff to minimise the effect of the injury upon his life and to be inconsistent with the behaviour which might be expected of someone presenting with symptoms caused by a psychologically based chronic pain syndrome or functional condition;
[9] I consider the plaintiff’s treating doctors, in particular, Dr Jeffries and Dr Thomas, to be in a much better position to express opinions as to the cause and severity of the plaintiff’s symptoms and accept their evidence in this regard in preference to that of the medical practitioners retained by the defendant.
28 For these reasons I accept the evidence adduced by the plaintiff that the effect of the incident has been to cause him to suffer severe levels of organically-based pain and I am satisfied that, but for the intervention of the RFD treatment, the plaintiff faced a future involving permanent severe pain of the type described by him in his first and second affidavits.
Finding as to the Consequences of the Plaintiff’s Injury Absent the Influence of
RFD Treatment29 For the reasons set out earlier, I accept the evidence given by the plaintiff and his wife as to the level of pain and disability from which the plaintiff suffered between the date of the incident and the performance of the first RFD treatment. I further accept the plaintiff’s evidence that before the incident, he was a strong, fit and active man who was not in any way restricted by symptoms of back or leg pain and was capable of performing heavy physical work without restriction. I accept that the plaintiff’s injuries aggravated a pre- existing asymptomatic condition which was present in his lumbar spine. I accept the opinion of Dr Thomas that the aggravation exposed the plaintiff to permanent symptoms of pain and restriction of both movement and activity as described by the plaintiff and his wife in their evidence.
30 I am satisfied that the consequences of the plaintiff’s injury to his lumbar spine are such that they have exposed a stoic individual to levels of pain of such severity that :
(i) he was required to make use of significant levels of narcotic medication to help cope with his symptoms and that notwithstanding the use of this medication, he continued to suffer from symptoms which interfered with his ability to sleep and to function generally; (ii) his ability to engage in work involving heavy physical activity was permanently curtailed; (iii) his life was impacted upon such that he spent much of his non-working time resting in order to recover sufficiently to meet the physical demands of his post-incident restricted employment. 31 In these circumstances, I am satisfied that the pain and suffering consequences to the plaintiff of the impairment of function to his lumbar spine caused by the incident, when judged by comparison with other cases in the range of possible impairments or losses of function, may fairly be described as being more than “significant” or “marked” and as being at least “very considerable”.
The Relevance of the RFD Treatment
32 I am satisfied that the evidence establishes:
(i)
that the effect of the RFD treatment has not been in any way to effect a cure for the plaintiff of his injury or its effects, but that it has been rather to achieve for the plaintiff a temporary respite from the symptoms caused by his injury;
(ii)
that the respite achieved by reason of the treatment is temporary in nature, and that the length of the respite is determined by the period of time in which axonal regrowth occurs. In this regard, I accept the opinion of Dr Thomas that the relevant period involved is one of between nine to eighteen months;[10]
(iii)
that it is possible that during periods in which the RFD treatment is at its most efficacious level, improvement in the plaintiff’s core strength may positively influence the pain and disability associated with his underlying injury. I do not accept however, having regard to the level of the plaintiff’s symptomology immediately before he underwent his second RFD treatment, that improved core strength and stability will have a significantly ameliorating effect upon the plaintiff’s symptoms in the future. Accordingly, I am satisfied that without the benefit of the RFD treatment the plaintiff will permanently suffer symptoms of the type and extent which he suffered before the RFD treatment was commenced.
[10] This being consistent with the plaintiff’s experience to date
33 I accept the plaintiff’s evidence that the performance of the RFD treatment is a procedure which involves for him, levels of pain and distress which he finds to be nearly intolerable. I am satisfied, having had the opportunity of observing the plaintiff’s level of distress as he described the treatment (which caused him to break down in the course of his evidence), that the procedure involves the plaintiff being pushed to the very limit of his tolerance of pain. I accept his evidence that whilst he has committed himself to undergoing one further treatment, the plaintiff’s tolerance of the RFD treatment notwithstanding its efficacious effects, will eventually be tested to the extent that it is likely that he will elect to abandon the treatment at some time in the not distant future.[11]
[11] Even if the plaintiff elects to undergo two further treatments, I am satisfied that would result only in postponing the return of his symptoms for no more than between eighteen to thirty-six months, during which time he would have to deal with the re-emergence of his symptoms on two occasions.
34 It is clear that whilst the RFD treatment remains efficacious, if the plaintiff exercises care in the activities in which he engages, so as to avoid strenuous physical activity, his enjoyment of life in terms of pain and suffering is largely unaffected. It should not be ignored however, that even in the presence of effective RFD treatment the plaintiff’s injury:
• requires him to avoid heavy physical activity and to restrict his employment to lighter forms of physical activity; • restricts his ability to change his employment in circumstances in which he wishes to do so for social, personal or lifestyle reasons; • diminishes his earning capacity such that his wife is now required to undertake full-time employment in order to supplement the family income; • exposes the plaintiff to a situation in which he faces the inevitability that his symptoms will recur and he will be required to make a decision as to whether he has the fortitude to face the performance of a procedure which he has described as: “I put it over 10, because it is a very painful procedure and it does bring tears to your eyes and it is very painful. It’s like your soul is being ripped out.”[12]
[12] T 43
35 When taking these matters into account and adding to them the fact that I am satisfied that the plaintiff’s tolerance to the performance of RFD treatment is likely in the not distant future to be exhausted, at which time the plaintiff will be exposed to the pain and restrictions caused by his injury which I have previously found to satisfy the definition of “serious injury” as established by the Act, I do not consider that the temporary respite of the plaintiff’s symptoms caused by the RFD treatment is such that it causes an injury which otherwise satisfies the definition of “serious injury” under the Act to no longer constitute a serious injury.
Conclusion
36 In the circumstances, I am satisfied that the pain and suffering consequences to the plaintiff of the injury suffered by him in the course of his employment on 22 July 2002 are appropriately described as being “serious” for the purposes of sub-s.(16) of s.134AB of the Act and I propose to make an order granting the plaintiff leave to commence proceedings seeking damages in respect of the pain and suffering consequences of that injury.
37 I will hear counsel as to the precise orders which are sought and as to the question of costs.
- - -
0
0