Ward v Victorian WorkCover Authority

[2021] VCC 1626

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-19-06191

GLENN SCOTT WARD	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	16 and 17 September 2021 (via Zoom e-hearing)
DATE OF JUDGMENT:	26 October 2021
CASE MAY BE CITED AS:	Ward v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 1626

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – impairment of the low back – pain and suffering only

Legislation Cited:      Accident Compensation Act 1985, s134AB

Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Woolworths v Warfe [2013] VSCA 22; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326

Judgment:                  Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Monti QC with Ms K Brady	Arnold Thomas and Becker
For the Defendant	Mr T Storey	Thomson Geer

HER HONOUR:

Preliminary

1This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Rosewood Cabinets (“the employer”) on 30 May 2005 (“the said date”).

2The plaintiff seeks leave to bring proceedings for damages for pain and suffering only.  Initially, this application was brought under both heads, but on the second day of hearing, counsel for the plaintiff indicated there would be no claim for loss of earning capacity.[1]  A psychiatric impairment application was also withdrawn.[2]

[1]Transcript (“T”) 70

[2]T11

3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:

“(a)permanent serious impairment or loss of a body function.”

4The body function said to be impaired is the spine. 

5The impairment of the body function must be permanent.

6Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

7The plaintiff bears an overall burden of proof upon the balance of probabilities.

8By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which:

“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”

9I 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.

10I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] and Peak Engineering & Anor v McKenzie[4] in reaching my conclusions.

[3] (2005) 14 VR 622

[4] [2014] VSCA 67

11The plaintiff affirmed three affidavits.  He was cross-examined.  Also in evidence were medical reports and other material.  I have read all the tendered material.

The Plaintiff’s evidence

12The plaintiff is presently aged thirty-eight, having been born in March 1983.  He has three daughters.  He left school during Year 10 to start an apprenticeship as a cabinetmaker. 

13Initially, he worked with Office System Manufacturing for about a year, before they went broke.  He transferred his apprenticeship to EMA Ultimate Furniture, where he stayed for about a year and a half.  That business then split.  He obtained work with PNN Industries, where he remained until he completed his qualifications as a tradesman.  He then worked at Caravan Court for about two or three years, and started work with the employer on 1 February 2005.

14Prior to work with the employer, he hurt his low back in a transport accident when he was eighteen.  An ambulance attended and he was checked for injuries.  He was taken to Dandenong Hospital, where he spent an hour before being released.  He had some minor back pains thereafter.  However, he was able to return to work and continue his normal apprenticeship duties.  He was playing footy and he was able to play the Saturday after the accident.  He did not have any problems after that accident.[5]  

[5]T25

15The plaintiff continued playing footy for Noble Park in the Eastern Football League in the under eighteens and a couple of senior games.  He played the rest of the season at fullback without difficulty.  He also coached footy for about three years, including a couple of players who went on to play AFL.

16When he was sixteen or seventeen, he used marijuana and occasionally Speed socially.  However, after he got together with his former wife, Simone, he cleaned up his act and, between the age of seventeen and the incident, when aged twenty-two, he was not using drugs.

17Whilst prior to the said date he had an occasional ache in his back doing heavy work, he was able to undertake a full range of heavy and repetitive work in his job, play football and participate in a wide range of demanding activities.

18His duties with the employer involved general cabinetmaking and installation-type work which was, at times, physically demanding.  He did installation, fabrication and manufacturing.  He thought he had been a qualified tradesman for three years when he was injured.  He loved the work.[6]  He had spent eight or nine years in total in his trade before he suffered injury to his back.[7]

[6]T106

[7]T115

19As a result of very heavy and difficult work he was undertaking on the said date over the course of the day, his back became very sore.  He advised the senior tradesman of his back pain and his concern that he would not be able to continue working. The next day, he advised his manager that his back had not settled overnight and he was not able to work. 

20On 1 June 2005, he saw his general practitioner, Dr Zallmann at Parkmore Medical Centre (“Parkmore”), who gave him a few days off work and referred him for physiotherapy.  The plaintiff tried to return to work on light duties.

21As his back had not settled, and in fact was getting worse, he returned to Dr Zallmann on 8 June 2005.  By that stage, his back had locked up and was going into spasm.  He saw her again on 17 June 2005.  By then, he had referred pain down his right leg and she arranged for an MRI scan to be carried out on 4 July 2005 and certified him unfit for work. 

22On 4 July 2005, the plaintiff attended Dr Zallmann and advised he had slipped down some stairs at home (“the stairs incident”), which led to an increase in the pain in his back, but only for a short time.

23He could not recall an improvement in his back before the stairs incident.  He did not fall, it was just the one step – the next – and he missed the step and he did not fall over.[8]  He might have been improving, because he was just resting before this happened.  While he agreed Tramal SR was first prescribed on that visit, he had been prescribed Tramal by that stage.[9]

[8]T28

[9]        T29

24On the 4 July 2005 examination, Dr Zallmann noted “had MRI pending” and flexion and straight leg raising still very limited “unchanged since last time”.

25When Dr Zallmann obtained the MRI scan results, she told him there was damage to the structure of his spine.

26The plaintiff’s back became very painful and, by that stage, even minor activities caused flare-ups.

27During 2005, he continued to see Dr Zallmann or other doctors at Parkmore.  She has mainly seen him for his back “from the start”.[10] 

[10]T22

28The plaintiff was assessed by Mr Drnda, neurosurgeon, in August 2005, who discussed a surgical procedure, operating through his stomach, with which he explained there were a lot of risks.

Light duties

29The plaintiff initially thought he had only done a couple of days’ light duties, but agreed if Dr Zallmann noted he had tried light duties for two to three weeks, that would be right.  In that time, he helped out in the office and tried to do some marking out of a job, and “paperwork kind of stuff”.[11]

[11]        T23

30However, the employer did not have enough small jobs for him to do.  They wanted to get him off the books and not have to pay him weekly wages doing light duties, so WorkCover told them they had to try and help him find a job, and a decision was made to go to the Victorian Rehabilitation Centre (“VRC”) for assessment, advice and treatment in about June 2005.  Dr Zallmann was involved in this process. 

31Ultimately, the plaintiff’s employment was terminated[12] and Dr Zallmann continued to give him light duties certificates.[13]   

[12]Dr Zallmann’s note of 2 November 2005 – “terminated - unable to fulfill restrictions”

[13]T30

32While Dr Zallmann noted in December 2005 that his pain was “manageable”, the plaintiff was managing with painkillers and “stuff”.  His medication had then been taken over by the VRC.[14]

[14]T32

33From early 2006 to 2007, the plaintiff was out of the workforce; he was not working at all.  He was trying to look for work in a new field, because he could not continue with his trade because of his back. He could not remember making job applications.[15]

[15]T33

34As it was clear he was not going to be able to get back to physically demanding work in his trade, he enrolled in a drafting course at Chisholm (“the course”), which he paid for himself.  He used his trades certificate to get into a Diploma in Building Design.[16]

[16]T34

35He completed the first term and was then advised by WorkCover that he should be doing a two to three-week computer course.  It threatened that if he continued to do the drafting course, they would terminate his WorkCover payments.  They were going to organise a computer course for him to help him get a job.  He stopped the drafting course as he could not live without his payments.[17]  He thought he did three to six months of a two-year course.[18]

[17]Dr Zallmann’s note of 11 May 2007

[18]T35

36He agreed he could have reported his back pain was improving in early 2007, “compared to when it first happened”.[19]

[19]T35-T36

37Dr Zallmann noted the plaintiff looked happy when seen on 9 March 2007: “… had a concrete career plan despite financial difficulties to cover the course fees.”[20] 

[20]T37 – report dated 1 September 2006

38He liked doing the course “100 per cent”.  When he started to work as a draughtsman and doing drawings and design, he loved that work, and found it satisfying doing it for a range of different employers.  It was the career he had planned to do in the long term “since the injury”.[21]

[21]T73

39He thought he could finish the course:  “… I was really doing everything I could with learning problems to work harder at times to pick up work and stuff so I was really enjoying it and just looking forward to it.”  He thought he received weekly payments for about two years.[22]

[22]T109

40He became very depressed, not only due to the pain and restrictions but also his inability to work, study and being stuck at home all the time, and his life was becoming more difficult for him as time progressed.

41As his life was disintegrating, he hit the grog and began gambling.  His relationship with Simone broke down.  He was taking a lot of Tramadol and started using drugs on an increasing basis.  Drinking and drugs were the cause of his marital break-up and “mental ability, and just everything going down”.  He started to gamble pretty heavily when he was not working.[23]

[23]T34

42His life became a bit of a blur and he had a suicide attempt.  He was separated from Simone and his girls, and got mixed up with the wrong crowd.  He tried to get work.  He got a drafting job at a joinery place and while he earned reasonable money, he was in a lot of pain and had real difficulties coping.  His life spiralled out of control.

43The job at the “joinery place” was at JFK in around 2007, with the assistance of VRC.[24]   The job involved drawing and listing items to put into machines that created the items that were drawn.  It was an office-based role.  It was more of a sitting job and he had to get up and move around.[25]

[24]T38

[25]T39

44He was then living in Noble Park and he had to drive to Campbellfield, so it was a fair way.  It was the type of job he wanted to do, working Monday to Friday, and the hours varied.[26] 

[26]T40

45He disagreed at that stage his back pain was manageable and he was coping well.  The driving and working ultimately cost him his job, and then the sitting at the desk every day, his back was getting worse and worse.[27]

[27]T41

46He disagreed he lost that job for other reasons.  When it was suggested there were thirty-one absences from work during nine months, he could not remember what he told JFK about missing work, his life was “spiralling out of control”.[28] 

[28]T42

47If JFK’s records on 12 February 2008 indicated he had been “locked up”, he could not remember, but obviously he was out of control.[29]  He could not remember being in a fight around that time, as the records indicated, or having any problems with his ribs.[30]

[29]T42

[30]T44

48He did not tell the boss at JFK about back pain, because he was drinking a lot and taking drugs.[31]  However, he did speak to a fellow worker – his immediate boss –  about his back pain.[32]

[31]T109

[32]T111

49The only mention of back pain by Dr Zallmann while the plaintiff was at JFK was her note on 22 April 2008 of “Two months of flare up of low-back pain”.[33]

[33]T46

50He remembered stopping work at JFK in early May 2018 because he got a job at a company closer to where he was living.[34]

[34]T47

51His next job was in Springvale for about six months, the same type of role, trying to do the office side of things – “obviously [with] dyslexia [he] struggles with the office side of things and … [he] just wasn’t up to their speed with things.  … same with JFK ….  He was struggling with the selling side of things, “emails and stuff, that kind of thing.”[35]  He was struggling with “[d]yslexia in the job, but also life at home and things were just not done right”.[36]   

[35]T50

[36]T51

52He was not sure why he did not mention this job in his affidavit.  He thought, by that stage, VRC had stopped helping him, as the two years had run out.  He could not remember exactly.  He agreed his life was just in chaos at that point.[37]

[37]T51

53He thought he got sacked from Springvale – “Just my life, … everything is spiralling out of control with me and my partner.  That’s when we went through a separation and stuff … .”[38]

[38]T52

54The plaintiff thought he then obtained a job in procurement, but he did not know the name of the company.  He would say it was a full-time job, “somewhere at the back of Dandenong”.  He might have been there for eight months or something, but he was obviously in a different state of mind, that was when he got into trouble and he went to jail, from that company, he was pretty sure.[39]  This was a job designing furniture for David Jones.[40]

[39]T53

[40]T61

55He worked for a couple of days in his brother’s shop, Savemore Supermarket, in July 2009.  He was helping his brother whenever he could.  While Dr Zallmann noted on 13 July 2009, “pulled muscle in the right shoulder … lifting heavy stuff”,[41] he was not lifting at that time. He could not remember the incident.  He was not then working for anyone else.[42]

[41]T54

[42]        T55

56He did not accept that between 22 April 2008 and 13 July 2009, he had not been to his doctor for low back pain.[43]  He agreed that around July 2009, he was not in good shape.  He was drinking and gambling a lot, taking a lot of drugs and having problems with the law.  These things were impacting on his ability to find, and hold down, a job.  He thought it was the incident that started all his drinking and the drugs – “to me, it’s all in one”.  His back pain was still the same all through the last fifteen years and had changed at all.  He had not seen a doctor but he had been using illegal drugs.[44]

[43]T55

[44]T56

57He accepted he was attending his doctor in 2009 for a range of issues and not mentioning his back.  On 19 January 2010, there was a note “low back pain for >4 years”.  It could have been more or less than four years.  He accepted this was the first mention of back pain to the doctor since 22 April 2008 but he “had the physios and the stuff still”.  The physio was at the Noble Park Football Club.[45] 

[45]T59

58He accepted he attended Dr Zallmann for back pain three times from April 2007 to January 2010 and the next mention of back pain was six and a half years later if that was what the records showed.  He did, however, have continuing constant back pain during that period affecting a range of aspects in his life.  He was in and out of jail and mentioned his back pain to doctors in jail: “Like, they’re not going to give me any new treatment or anything new.  It’s just a matter of managing the back pain.  It’s ongoing until surgery, or until it gets better.  Like, it hasn’t got better, and it’s just ongoing pain every day.”[46]

[46]T77

59He agreed he had a lot of trouble with the police in 2010.[47]  He thought he went to jail in December that year and it was just before then he had worked for the place in Dandenong.[48]

[47]T60

[48]T61

60Before he was imprisoned, his life was out of control with the drugs and he was happy to be caught.  He dried out in jail but continued to have back pain.

61As part of his drug addiction, he ended up in debt and committing criminal offences.  He was sentenced to twenty months’ jail, with that time spread between 2011, 2012 and 2013, mostly served in in Marngoneet.  He was having back pain during that period.  He needed treatment and received it while in jail.[49]

[49]T63

Touch Wood

62After his release from jail in about 2013, he obtained a good job with Touch Wood in Cheltenham.  As part of his release, he had to attend random urine tests, which created a problem at work.  He advised the boss of what was happening and, unfortunately, the boss’s wife sent an email to the staff which disclosed his criminal record.  He was finished up there.  He had worked at Touch Wood for about eleven months, and it was a great loss to him that this work ceased.

63The work was just the drawing side of things from the course he did many years ago.[50]  At work, he had longer breaks and moved around more, but that was all that was required.[51] 

[50]T64

[51]T65

64In re-examination, he confirmed his difficulties with dyslexia at Touch Wood.[52]

[52]T111

65When seen by Dr Zallmann in May 2013 when he got out of jail, there was no mention of his back in the notes.  There was an attendance for an unrelated matter in September that year.[53]

[53]T65

66When next seen in early 2014, there was a note of stress at work at Touch Wood and stress claim.[54]  That claim was ultimately rejected.  He was then prescribed Pristiq.  He accepted the Touch Wood job ceased for reasons totally unrelated to the incident injury.[55]

[54]T66

[55]        T66/7

67He agreed that from that moment, he then fell back into drugs and crime.  From his release from prison for fifteen months or so until August 2014, he agreed he did not mention his back to any doctor, if that was what the records showed.[56]

[56]T67

68Thereafter, his life spiralled out of control.  He continued to get in trouble with the law and with drugs, and spent various periods in jail between 2014 and 2017 for drug-related offences and breaches of corrections orders.

69He agreed that he assaulted an emergency worker in around 27 April 2016 when he tried to escape from hospital, having been taken there after staging a fall in the cells at Frankston police station.  He did not injure his back that day as the Hospital records indicated – “it was all staged” in an attempt to escape custody.[57]

[57]T80

70While his medical records referred to a CT scan in October 2016, he could not remember what that was for.[58] 

[58]T92

71In between periods in and out of jail, he was only ever able to pick up short-term or part-time work here and there, most of which was labouring-type work, and he struggled because of his ongoing back pain.  However, due to his criminal history, it was difficult to obtain any stable employment or office roles.

72“Work here and there” referred to three days’ work over a fortnight for his cousin in a plumbing business.[59]  He did not actually work anywhere else, although he might have said he did in some fraudulent tax returns.[60] 

[59]T83

[60]T85

73He received Newstart from 2011 to 2017.  He had to notify Centrelink of any earnings.  He only did two of a number of jobs set out in a Centrelink printout and declared doing the others to get out of the Work for the Dole scheme.[61]

[61]T87

74He has repaid Centrelink all the money,[62] including the Jim’s Mowing money.[63]  His fraud involving getting a tax supplement.[64]  He paid the money back because he got caught.  He had completed three or four fraudulent tax returns, not just the one he recently deposed to.[65]

[62]T88

[63]T89

[64]T90

[65]T89

75He spent ten months in jail between late 2018 and July 2019 for breaches of Corrections orders, and was released in early July 2019.  As at August 2019, he was back with Simone and their daughters.

76When most recently in jail, he was given a certificate to exempt him from factory work because of his back pain.  During that time, his back pain had been constant and ongoing.[66]  He was getting general treatment in jail and was not able to work there because of back pain.[67] 

[66]T113-114

[67]        T63

77As of 2 August 2019,[68] he had an ongoing backache, with the level of pain increasing with activity.  His back locked up and went into spasm.  When that happened, it was very painful and left him very stiff and sore for days.  He continued to have referred pain down his right leg and, at times, got severe shooting pain down the leg.

[68]First affidavit

78The ongoing pain and restrictions continued to affect him psychologically.  He had been permanently scarred by what had happened to him in his life by reason of his back injury and its consequences.

79Due to his drug problems and suicide attempt, he had tried to avoid taking heavy duty painkillers, and now tried to manage his pain with the use of Voltaren, Panadol and a heat pack.  He used Panadeine Forte when his back was really bad, and he would not use Tramadol. 

80He continued to do exercise and stretches, which he had been taught by the physiotherapist and at the VRC.  He had been told that apart from surgery, there was nothing further that could be done by way of treatment, and he was very reluctant to have surgery.

81It was difficult to sleep more than four hours, as his back stiffened up and became quite painful and woke him a lot.  The mornings were very bad for him.  Because of stiffness and pain, he struggled to be able to get out of bed and sometimes needed help.  In the morning, he had real problems putting on his shoes and socks.  Due to his impaired sleep, he often felt fatigued and down.

82His mood had never properly recovered from the injury and what had happened.  He had worked hard to get his life back in order and the constant pain was a struggle.  He got frustrated due to the pain.  His inability to return to his trade and his inability to be active like he used to be, and his inability to support his family properly, left him feeling bad. 

83He and Simone had got back together.  The years since the injury had been difficult.  They had worked hard to get the marriage back together for the sake of the children.  However, their relationship had not returned to what it was before he was injured.  It had been a great strain and loss to him.

84He was very limited in sporting activities he could do.  His back stopped him playing golf with three of his four brothers, who were very keen golfers, and that was a real loss to him.

85He loved AFL and was not able to return to playing because of his back.  He had previously coached junior football.  His girls played netball and he had also coached their team.  However, he had to stop because he could not get a “Working with Children card.

86He had struggled with drug addiction since he was injured and the impact that it had had on his life.  He had been on drug treatment orders, but there were no current orders.

87He had not suffered psychological injury before the incident nor had he had any problems with drugs.  All of this had had a devastating effect on him.

88He was restricted in what he could do around the house, and could not do the heavier jobs.  A variety of ordinary day jobs gave him pain, like hanging out the washing, leaning over the sink doing the dishes, and trying to work on his car.

89He always tried to maintain the lawn and garden, but had problems using the lawn mower, which really flared his back pain and caused a lot of pain.  However, he did not like to see Simone having to mow the lawn as he should be doing it, and he continued to try to do it, even though it caused him a lot of pain.

90He had lost his trade.  It had been difficult for him to get alternative work because of the problems he had due to his back with sitting, standing and lifting.  He had tried to work since he was injured, but all the jobs he tried had caused him pain.

91He was not particularly good at reading and writing.  Whilst he could do some computer work, he was limited and found it very painful.  He was a person who was meant to be a tradesman not an office person, and his inability to return to his trade had been a great loss to him.  His back pain and restrictions, together with his drug history and criminal record, had made it difficult for him to obtain suitable employment.

92When released in July 2019, he had applied for Centrelink and received Newstart, but had applied for a disability pension.

93He did not think he would be able to get back to any physical labouring work.  With a desk job, he struggled to sit for long periods and his back got sore and stiff from staying in the one position for too long.  He did not know if he would be a reliable employee.

94The future worried him.  He had a constant battle with managing his pain and restriction.  Surgery had been discussed with him, but that really scared him.  He was also scared that if his pain or life circumstances deteriorated, he might return to previous dark places.  He found it distressing that he was no longer able to work as he had, and financially support himself and his family as he should.

95He is now estranged from Simone and lives with his brother.[69]  He was released from custody during September 2019 and was then informed, when he returned to the family home, that the relationship was over, and Simone was leaving.[70]

[69]        March 2021 affidavit

[70]        March 2021 affidavit

96He stayed with their daughters and cared for them until Simone returned, and then he moved in with his brother.  He obtained an intervention order against her after she destroyed his property.

97He has a good relationship with his daughters, who have expressed a desire to live with him.  He is hopeful that will occur, as he is currently doing well and complying with his parole obligations and CCO.  He is required to undertake regular drug and alcohol testing and regular consultations with a psychologist, psychiatrist and see a general practitioner.  He is required to appear before a magistrate once a month and has not had any complications so far. 

98The plaintiff hurt his neck in 2015 when assaulted while in jail.  He made a good recovery from the assault, and any injuries do not prevent him from being able to work or engage in activities of daily living. 

99He has never recovered from the incident injuries and continues to experience ongoing pain and lower back restrictions.  The intensity of his pain fluctuates and is always present, and he experiences referred pain into his upper back and into his legs.

100He has tried to rehabilitate himself as much as possible.  He had physiotherapy whilst in jail and completed an exercise program which involved core strengthening exercises that avoid bending or pressure being placed on his spine.  However, he has not experienced any lasting relief, despite actively participating in this type of treatment. 

101He avoids strong prescription painkillers due to his substance abuse history.  His doctors are reluctant to prescribe these types of medication for that reason.  He used Methadone as a painkiller whilst in jail, although no longer uses it.

102He relies on over-the-counter medication, like Maxigesic that does not contain opioids, when the severity of pain becomes severe, which occurs multiple times a week.  He also uses heat packs multiple times most days and receives intermittent treatment from a family friend who is a physiotherapist.

103He has not been able to return to any form of work since leaving jail.  His ongoing pain and restrictions prevent him from being able to return to any form of work that involves repetitive or heavy lifting.  He is unable to stand or sit for long periods without constantly changing position, and is distracted by pain, which makes it difficult to concentrate and learn new tasks.

104The ongoing pain and restrictions continue to prevent him from being able to return to work as a cabinetmaker.  This continues to be a significant loss, as this was his chosen trade and provided him with a significant amount of job satisfaction.  His brother is also a cabinetmaker, and it upsets him when he leaves for work in the morning, and he is reminded of what he is missing.

105He is unsure what type of work he will be able to do in the future.  His inability to engage in any type of physical work is a significant limitation, especially as work options are already limited by his criminal record.

106The ongoing pain and restrictions impact all aspects of life.  He experiences an increase in pain when bending and it is difficult to put on shoes.  The twisting motion when cleaning himself after using the toilet also causes a significant amount of discomfort.  He struggles to complete any type of heavy or repetitive tasks and relies on his brother or daughters to complete any household tasks involving bending or repetitive lifting.  He feels that he is a burden on the family, especially as his brother works all day.  The incident injuries continue to have a significant impact on him.

107The plaintiff swore a further affidavit on the morning of the hearing.

108In the years after the transport accident, as well as playing footy, he also played golf with his brothers, one of whom was very good, playing eighteen holes on a regular basis.  He really enjoyed golf and played about eight times a year.  About two years before the incident, he had bought a set of clubs.

109His back pain since the work injury has resulted in him being unable to continue working as a cabinetmaker.  It stopped him playing golf with his brothers, and there is no way he could have returned to football thereafter.

110There had been periods since the incident injury when he had lost his driver’s licence and he had been forced, through necessity, to get around using a bike to go to the shops for food.  Riding a bike makes his back pain worse but he has no choice.

111He has not worked since about 2014.  He declared about $8,000 of income from Jim’s Fencing in his 2020 tax return, despite not having worked at all that year.  He did so to get a tax supplement from the government.  He got caught out and ended up paying the money back.  He regretted his actions, which had been caused by sheer desperation. 

112He was most recently released from prison in September 2020, and had not made any attempts to look for work since.  He is on a CCO and is required to attend a psychologist appointment every Tuesday, meet with his Corrections officer every fortnight, and have regular contact with two social workers.  He also has to appear before a magistrate every month for judicial monitoring, so it has not been possible for him to look for work, given the requirements of the CCO, which lasts for about a further six months.

113He really struggled with school and is dyslexic.  He is particularly bad at emails and writing, and his spelling and reading still remains affected and limited by his dyslexia.

114He had learnt some computer skills.  However, he has real difficulty with continuous sitting in front of a computer screen without there being an intolerable increase in back pain.  He just cannot handle sitting on a chair all day, and sitting for more than an hour causes back problems.

115He would dearly love to return to some sort of work as it would give his life some structure.  He would like, maybe, to get into sales involving tools, as he has a wide knowledge in that area, but he does not have any experience and he does not have a clue how he would get into that sort of role.  The other problem with that, is that it is likely to involve sitting and lifting.

116Another option would be as a courier driver.  However, he does not really think he would be able to sit in the car or truck all day, and do the lifting required.  In any event, he does not currently hold a driver’s licence, as it has been suspended until mid-2023.

117Until recent times, he has continued to live with his brother.  His brother, who is a qualified cabinetmaker, has not worked for about the last five years as he suffers from paranoid schizophrenia.  He takes medication to control that condition and is able to look after himself, but is not currently able to work.

118The plaintiff’s three daughters live in Springvale.  When he got out of jail in September, he lived with them, as Simone was in a relationship and had moved out from the family home.  However, that relationship ended and she wanted to move back in with the girls, so he had to move out.  When she moved in, she torched all his belongings.

119Not long afterwards, DHSS determined that Simone could not care for the girls, and an Order was made barring her from going to their house.  Unfortunately, the girls could not live with him because there was not enough room for them at his brother’s house, so his nineteen-year-old daughter now cares for the sixteen-year-old at the family home.  He visits the girls regularly.  His relationship with Simone remains strained and they each have IVOs against each other.

120For the last six months, he has had a new partner who has her own business selling gift hampers.  He recently moved in with her and does not want to disclose that address because he is fearful that Simone will learn of it.  The new relationship is going well.  It is one of the best things he has ever done.

121Since his release from jail, he has received physiotherapy from a family friend at the football club.  He also does regular stretching and self-maintenance through home exercises that he was taught at the VRC.  He should do the exercises every day but more usually he does them two or three times a week.  He also tries to manage his pain with heat packs and Maxigesic tablets and avoids aggravating activities.

122He takes these tablets as needed.  Some weeks, he takes them several times a day for a week or more, and other weeks where he can manage by just using heat packs and avoiding aggravating activities, he does not take them.  He tries to avoid taking medication because of his history of drug use.  He became addicted to Endone after, hurting his back at work.  He then started drinking, as well as taking Endone, and progressed to drinking and taking methamphetamines.

123His problems started, having taken Voltaren and Nurofen, which he initially took regularly.  Voltaren seemed to help, but then he was getting up to six to eight tablets at day.[71]  He later had issues with Tramadol and Endone.  He started off with speed and was slowly introduced to Ice, and that is where he got stuck.[72]

[71]T103

[72]T107

124He is reluctant to take painkillers, because he did not want to spiral out of control again.[73]  He is still having physiotherapy from the lady at the Football Club.[74]

[73]T114

[74]T112

125He continues to struggle with his drug addiction.  He is enrolled in program sessions formally starting next week at Southern Drug and Alcohol Service.

126He sees his general practitioner from time to time about other matters, at which time he has mentioned his back.

127He also gets his partner to tape up his back the way the physiotherapist taught him.  Taping it for three days then gives him some relief for a few days.

128He tries to do a lot of walking to free up his back.  Sometimes it hurts to walk, but he perseveres.  He walks a kilometre or two about three times a week, and when the swimming pools are open, he also does hydrotherapy to help strengthen his back.

129When he was in jail he did light weights training and walked on a treadmill, which also helped maintain some back strength.  He also had physiotherapy about four times while in custody.  However, he knew there was not much the physiotherapist could do, and he already knew the exercises to manage his symptoms.

130Back symptoms continue.  He has constant pain in his back, although the intensity varies and is worse with activity.  Even something like picking up the paper increases his back pain.

131He also has intermittent referred pain into both legs, although it mainly affects his left.  That pain is particularly bad when he has flare-ups of his back pain.  The pain starts in the back of his thigh and runs down his leg to his mid-calf.  Sometimes, the leg pain can be a sharp, shooting pain, like a jab through his body and at times, bordering on severe.

132He continues to have difficulty sitting, standing, walking, lifting and bending, and some days he can do more than others.

Current

133The plaintiff confirmed in cross-examination that his affidavits were all true and that his back pain has been constant and ongoing since the incident.  His pain has been at various levels, but constant.  It depends on the activity he is engaged in, particularly bending down and bending forward, and that has been the case since the injury.[75]

[75]T16

134He also confirmed he experiences referred pain in his upper back and legs, but that is not every day.  Every year would be different – it has been such a long time since the injury.[76]  It is mainly the left leg.[77]

[76]T17

[77]T18

135The pain is constant and at various levels.  He tries to manage it, but it is always there.  When he has leg pains, it seems to shoot through the backs of his legs.[78] He is in pain every day and it just varies.  The better he looks after it, the less there is, but there is always pain.[79] 

[78]T105

[79]T115

136It is difficult to put on shoes.  He is restricted to bend that far.  To force himself down there is what causes the pain.[80]

[80]T17

137It is only sometimes when he cleans himself after the toilet when he feels his back pain, like when he has had a flare up.[81]  He continues to require help with domestic tasks.[82]

[81]T18

[82]T19

138The matters deposed to in his most recent affidavit are true.  He is always in back pain, and that is just something he has got to deal with.[83]

[83]T20

139Without explanation, the plaintiff did not come back to Court after lunch. The following day, he apologised, saying “it just all got too much for me, obviously, reliving everything and just how my life had turned out … compared to what it was”.[84]

[84]T70

The film – summary

140The plaintiff confirmed that the even the very lightest thing may hurt his back.  If he had to do something he did it.  He would prefer someone else to do it, but if there is no one else, he has to do it. It does not mean every time he picks up the paper it hurts, “it was just a saying as such”.[85] 

[85]T93

141There was surveillance film on 6 February 2020 of the plaintiff putting together a tarp at his property.  He was shown climbing on the roof, bending down using a cordless power drill securing the tarp.  He thought it was just something he had in his backyard, like putting up a tarp to cover something being seen.  Obviously in that time it was about a month before he was arrested, he was not too sure exactly what he was doing.  “I’ll watch and, but yeah, I’m sure it wasn’t good.”  He agreed he got the poles from his place and just put the tarp up.[86]  He was using a cordless drill.  He was tethering the tarps together.[87]

[86]T96

[87]T97

142He agreed it was a physically difficult task.  He also agreed it was heavy, awkward and prolonged work.  He denied “that it makes just a complete nonsense … of [his] claim” that he had difficulty picking up a piece of paper:

“You got to understand the timing of that, I’m a massive addiction if – a month later I was in custody.  Once you’re on ice the – there is no – it can numb anybody everything in your body, that’s why it’s such a bad drug and I’ve never said that I couldn’t do things, I’ve said it aggravates it and obviously my time on drugs has made it worse”.[88]

[88]T199-100

143There is a difference between being on drugs and off drugs.  There was not a chance he could do what he was shown doing on the film if he was off drugs.  Even when on them, when he goes to sleep at night, he wakes up in massive pain and that makes him start taking the drugs again to mask the pain.[89]

[89]T100

The Plaintiff’s medical evidence

Treaters

Dr Zallmann, at Parkmore

144Dr Zallmann has provided a number of reports detailing her treatment of the plaintiff.

145When first seen on 1 June 2005, the plaintiff presented with a few days’ history of right-sided low back pain precipitated by an attempt to move about a 120-kilogram cabinet at work.

146Dr Zallmann organised a lumbar MRI scan on 4 June 2005.  It was reported there was desiccation at L5-S1 disc associated with a minor central disc bulge causing minimal thecal encroachment.  It was concluded: “Desiccation at L5-S1 disc associated with a broadbased central disc bulge.” 

147She diagnosed lumbar disc injury at L5-S1 with prolapse.

148As of 2006, Dr Zallmann noted that the plaintiff was not currently in employment and had no capacity for pre-injury employment.  He had capacity for light duties, avoiding heavy lifting, repetitive work and prolonged sitting or standing.

149She thought the injury was permanent and fluctuating in intensity.  In her view, the plaintiff needed to change his vocation, which would require retraining.  He was interested in furniture design, which would require him to complete Year 12 and VCE in the first instance.

150When the plaintiff saw her in November 2006, presenting for a routine certificate, he admitted to some mild depressive symptoms and also mentioned that he had been drinking more alcohol to help him relax. 

151When seen the following month, he reported having gradually cut back on his alcohol consumption.  His activities were restricted by his back pain, and he mentioned that he could no longer play golf, which he used to enjoy.

152There was a report of improvement on 16 January 2007, and the plaintiff showed a positive attitude generally and he had plans for future employment.

153He represented on 1 February 2007, excited about the prospect of studying a course in advanced building technology, and he requested a support letter for the insurance company.  When seen again on 9 March 2007, he had started the course and he looked happy, and had a concrete career plan despite financial difficulties. 

154He represented on 1 May 2007 feeling depressed, stating he was forced to terminate his study due to lack of finances.  His marriage broke up and he had started drinking more alcohol.  Dr Zallmann was concerned about him, as he then presented with a major depressive illness.  His concurrent alcohol abuse was a serious complication. 

155She felt that the plaintiff needed psychiatric care and referred him to Dr Fernando, and commenced him on Zoloft.  She advised him to use alternative analgesia if required, because of the adverse interactions between Tramadol and that medication.

156The plaintiff was compliant with medication and was going to see a psychiatrist.

157The plaintiff presented to Dr Zallmann on 28 June 2007 for a routine WorkCover certificate.  He was seeing a psychologist for counselling and had gone off Zoloft. She noted he seemed to have a positive attitude and concrete plan for the future. He was still planning to complete a drafting course.  His back was playing up in cold weather.

Mr Drnda, consultant neurosurgeon

158Mr Drnda reported to Dr Zallmann, having seen the plaintiff on 10 August 2005. 

159On examination, the plaintiff had mild to moderate limitations of movements of his lower back, especially in flexion/extension direction.

160Mr Drnda considered the MRI showed L5-S1 initial desiccation of the disc with circumferential protrusion, however, without neural compromise. He thought, obviously, the clinical picture of low back pain was related to damage to the disc, and the initial leg pain was probably referred pain, since there was no neural compression.

161The plaintiff required regular exercises and could gradually return to light duties over a prolonged period.   If he continued to be bothered with back pain in a chronic way, he may be a candidate for a disc replacement, although that was a controversial method of treatment.  He personally did not do the operation.  However, if it came to that and there was a possibility of treatment, he would probably recommend Mr Brazenor.

162In a medico-legal report, Mr Drnda noted that he had only seen the plaintiff once.  He thought if the plaintiff was away from manual labouring and physical jobs, he would probably stabilise and be unlikely to deteriorate in the future.  This would not be the situation if he went back into physical work. 

163He considered the plaintiff’s condition was definitely work related, since he was exposed to repetitive bending, twisting and heavy lifting.  This repetitiveness caused development of premature and accelerated disc degeneration and protrusion being symptomatic through low back pain.

Allied health professionals

164Clive Pereira, physiotherapist, saw the plaintiff on referral from Dr Zallmann in June 2005.

165Sebastian Buccheri, exercise physiologist, wrote to CGU in October 2005, after the plaintiff had recently completed an interdisciplinary program at the VRC.  He recommended the plaintiff attend Dandenong Oasis Fitness Centre and that CGU pay for a three-month gym membership course.

166Chris Larner, psychologist, advised Parkmore on 28 June 2007, that the plaintiff had failed to keep two appointments under his mental care plan.

Medico-legal examiners

Professor Teddy, neurosurgeon

167Professor Teddy saw the plaintiff in December 2020.

168The plaintiff then complained of low back pain and stiffness in his back of an intermittent nature.  Incapacity was worse for lawnmowing, shopping and pulling trolleys.  He felt physically strong but the two awkward movements which caused him particular trouble were twisting motions and bending to pick up objects from the floor.

169On examination, there was generalised limitation of back movements by about 50 per cent.  SLR was 75 degrees bilaterally and accompanied by some grimacing and grunting.  Power and sensation in the lower limbs were normal.

170Professor Teddy had available the July 2005 MRI, Dr Zallmann’s reports, Mr Drnda’s August 2005 report, Mr Aliashkevich’s October 2018 report, Mr Clive Jones’ October 2006 report and Mr Brendan Dooley’s October 2007 report.

171Professor Teddy diagnosed an apparent exacerbation of lumbar spondylosis manifested as disc degeneration at L5-S1.  At no time had the plaintiff been found to suffer from neurological deficits and there has been no evidence on imaging to date of neural compromise at any level in relation to the lumbar spine. 

172The plaintiff appeared to have developed a Chronic Pain Syndrome with inevitable associated psychosocial influences.

173Given that the plaintiff’s symptoms are now of some fifteen years’ standing with only modest improvement, despite a variety of entirely appropriate conservative measures and rehabilitative processes, his prognosis remains poor.  There is no indication for surgical intervention.  There was no realistic prospect of him  returning to his pre-injury employment.

174On balance, many of the reported incapacities relating to alternative forms of employment are self-imposed and are a function of the Chronic Pain Syndrome that the plaintiff would appear to have acquired. 

175Physical examination would suggest that the plaintiff is capable of performing work of a sedentary nature.  It is likely this condition will persist for the foreseeable future.

176Professor Teddy noted that his assessment was based on clinical review on imaging that was considerably out of date.  It seemed the plaintiff has a Chronic Pain Syndrome.  It is recommended he be re-assessed under the auspices of a multidisciplinary pain management team before formulating a definitive opinion regarding the likelihood or possibility of returning to any form of useful work – noting Mr Aliashkevich’s 2018 suggestion of further scanning.

Dr Slesenger, occupational physician

177Dr Slesenger examined the plaintiff in March 2021 and provided a supplementary report, having been forwarded further material in September 2021.

178The plaintiff advised that his low back pain had persisted, centred in the lower back, with shooting pain into the left leg. The pain was constant, moderate to severe, and also radiated into his mid-back. It disturbed his sleep.  It was aggravated by activity and could also deteriorate spontaneously.  On average, one day a fortnight he was unable to get out of bed and spent most of his day lying in a recumbent position.

179The plaintiff told Dr Slesenger of his addiction to painkillers, including Endone, and his use of illicit drugs, and that he had stopped taking drugs and alcohol about a year ago and was currently avoiding analgesic medication.

180On examination, there were no trophic changes and no scarring.  There was tenderness over the lumbosacral junction, the paraspinal musculature and over the lower thoracic spine.  Flexion was 40 degrees, extension 20 degrees, rotation 10 degrees to both sides, right lateral tilting 40 degrees and left lateral tilting 20 degrees. 

181The diagnosis was a soft tissue injury to the lumbar spine and chronic lower back pain with radiating features, but with no confirmed evidence of radiculopathy. 

182The plaintiff’s prognosis is guarded, given the length of his impairment and disability, his poor response to treatment to date and the degenerative nature of the underlying condition.  He should undergo further evaluation, including a lumbar  MRI scan, and would benefit from seeing a pain specialist to address his pain control.  Funding limitations, his fear of medication and risk of addiction are all significant barriers to his recovery. 

183The plaintiff cannot return to his pre-injury role as the job demands lie outside his capacity limits.  Dr Slesenger considered that the plaintiff is likely to struggle to return to work, performing suitable alternative duties on a consistent and reliable basis, due to his age, residential location, education, past employment history, current symptoms and functional limitations, literacy limitations, limited computer skills and the variable and unpredictable nature of his symptoms. 

The Defendant’s evidence

Lay evidence

184Allison Staggard, company secretary of JFK Interiors, swore an affidavit on 23 February 2021.

185Based on the company’s records, the plaintiff was employed as a full-time lister in an office-based role involving drawing and listing items to put in a machine.  He worked about 40 hours a week from 30 July 2007 until his employment was terminated on 14 May 2008.

186JFK’s records indicate that the plaintiff was absent, late, or on sick leave on numerous occasions during his employment for various issues.

187The reasons for him calling in sick or failing to attend work included things like going to hospital with his daughter, a tooth extraction, car troubles, being locked up, some relatives killed in an accident, minding his children, and suffering broken ribs.

188There was no reference in the records to him reporting any back complaint, and based on her enquiries with company directors, no recollection can be made of any such issue affecting the plaintiff.

189There were two references in the records in October 2008, over five months after the plaintiff stopped work, to him having been reimbursed in October for two hours for WorkCover medical examinations.  He never lodged any WorkCover claim with JFK.

190Ms Staggard was informed that the plaintiff attended several independent medical examinations for the purposes of his WorkCover claim with Rosewood Industries during 2007, and it seems from JFK’s records, that the plaintiff may have sought reimbursement from JFK for his time off to attend those examinations long after he ceased employment.

Video surveillance

191On 6 February 2020, from 1.42pm, the plaintiff was shown putting up a tarp at a residential address.  At 1.52pm, he secured an orange string on the tarp to the ground.  At 1.59pm, he stood on the top of a tin shed holding a cordless drill in his right hand, securing the tarp to the roof.  At 2.02pm, he was lying on his side on the shed roof, operating the drill.  At 2.06pm, he worked with his hands above his head securing ropes to poles.  For most of the remainder of the film that day, he worked under the tarp once it had been secured.

Medico-legal examiners

Mr Clive Jones, orthopaedic surgeon

192Mr Jones examined the plaintiff on behalf of CGU in October 2006.

193The plaintiff claimed for the first six months after the incident, as well as his painful back, he had intermittent pain in the left leg extending down past the knee and associated with numbness and tingling in the left foot.  He had had treatment at the VRC, but back pain was still a problem.  He was then taking Voltaren alone, although initially he required quite a deal of medication.  Back pain was activity related, and often interfered with his sleep.

194He had not been able to return to his hobby of fishing.

195On examination, the plaintiff presented as a genuine individual.  Pain was localised to the left sacroiliac joint.  There was 60 degrees of back flexion and 20 degrees of lateral bending to each side.  Straight leg raising was to 45 degrees on the left, with a positive stretch test and 70 degrees on the right.  There were no abnormal neurological signs.

196He thought the plaintiff had a lumbar disc injury sustained in the incident which was initially associated with significant levels of left leg pain which had now abated.  Back pain remained a problem, and the plaintiff had been advised he was unsuited to his previous work.

197A vocational assessment identified furniture designer, estimator, and sales assistant as suitable.  The plaintiff advised he personally preferred furniture design, which would fit in well with his cabinet-making skills, but he would require some retraining.

198Although there was a history of a minor back injury six years earlier as a result of a car accident, it appeared the plaintiff made a full and complete recovery and was able to work full time and play football.

199The plaintiff’s condition had not resolved and was still materially contributing to his incapacity for work as a cabinetmaker.  He was clearly not unfit for all work, but lighter employment was obviously desirable.  Retraining and the location of suitable employment would facilitate his work return.

200In summary, he had had a significant lumbar disc injury.  Surgery was not recommended.  He was only twenty-three, and to return to the workforce would almost certainly require retraining with lighter duties in prospect.

201When re-examined in May 2007, the plaintiff was then enrolled at the Frankston TAFE, working towards a drafting diploma, a two-year course he was self-funding with some difficulty, as not only were the course fees significant but the equipment which had to be purchased was also expensive.  He said he was enjoying his studies and felt he was making headway with them, and at the conclusion of the course, he would be able to work in a drafting office or commence his own business.

202He still had back pain, and that had not changed greatly since last seen.  It varied in severity from day to day, but activities tended to make it worse.  He had just moved house, and that increased his pain level.  His sciatica was not the problem it previously was.

203The plaintiff could not remember what he was currently taking, but it was an anti-depressant of some kind.  He said he had become depressed owing to his back difficulties, and that had resulted in marriage breakdown.  He only saw his children occasionally.

204On examination, Mr Jones noted the plaintiff presented as a genuine individual.  There was tenderness of the lumbosacral and left sacroiliac joint.  He could achieve 60 degrees of back flexion, with 20 degrees of lateral bending.  Leg raising was to 45 degrees on the left.  Neurologically there were no abnormalities.

205Mr Jones was yet to see the MRI, but understood the plaintiff had a significant disc problem at the lumbosacral level.

206The plaintiff presented much as he previously did, with ongoing variable levels of backache.  He accepted that the plaintiff would not return to carpentry and cabinetmaking and was pursuing alternative qualifications.

207The condition had not resolved, and was still contributing to his work incapacity.  He was doing the full-time course and was unable to work.

208Mr Jones noted the plaintiff had accepted that there had to be a change in direction, and he was working towards obtaining suitable qualifications to include that.  He would not be able to return to work requiring repeated bending or heavy lifting in the future.

209Mr Jones was sent the Resolutions vocational assessment.   He thought the plaintiff was not able to return to his fairly physical job as a cabinetmaker, a view shared by two neurosurgeons who had also seen him. 

210Mr Jones last saw the plaintiff in May 2007.  He believed the plaintiff would be capable of doing the jobs identified by Resolutions of retail assistant, sales representative, and estimator/‌scheduler.

Mr Brendan Dooley, orthopaedic surgeon

211Mr Dooley examined the plaintiff in October 2007 and conducted an AMA assessment.

212On examination, bilateral straight leg raising was to 30 degrees, causing minor back discomfort.  There was moderate restriction of back movement, with 70 degrees of flexion, 20 degrees of extension, and lateral flexion to either side of 25 degrees.  There were no abnormal neurological signs and no muscle wasting.

213Mr Dooley noted that apparently the MRI showed significant disc degeneration at the lumbosacral level, with a central prolapse but no neural involvement.

214He thought the plaintiff had suffered a lumbar disc injury at the lumbosacral level, causing back pain and referred pain to both legs.  He had improved considerably.  He had not been able to resume his previous occupation, but now had a job that suited him ideally, designing furniture.  His condition had now stabilised and he required no ongoing treatment apart from a continuing a self-management program to gain maximum physical fitness, with regular walking and back strengthening.

215Mr Dooley diagnosed chronic low back strain with aggravation of lumbosacral disc degenerative changes causing back pain and referred pain to both legs with no signs of radiculopathy.  He allowed a 5 per cent whole person impairment of the lumbosacral spine.

Dr Ales Aliashkevich, neurosurgeon

216Dr Aliashkevich examined the plaintiff on behalf of his solicitors in October 2018.

217The plaintiff then complained of ongoing pain over his back which dominated between the shoulder blades and the middle of his back and increased with activity.  He scored the intensity of his pain as a constant 6+ our of 10, and he had a constant feeling like it needed to be cracked.  He also complained about his back locking up and spasms.  Occasionally, he had pain that radiated down his leg.

218The plaintiff was then taking Nurofen regularly.  As he had drug issues, he tried to avoid stronger pain medication such as Tramadol.  He was doing physiotherapy, exercises and stretching.  He was not drinking alcohol or consuming illicit drugs at that time.

219On examination, he had preserved muscular strength, tone and bulk.  There was no sensory deficit.  The range of movements of his lumbar spine were significantly restricted, with flexion possible to around 60 degrees, but no extension.  Lateral tilting was possible to around 15 degrees to both sides.  Significant tenderness was noted on palpation in the interscapular mid-thoracic region, in the low cervical region and upper lumbar disc area with several trigger points.

220The July 2005 MRI was available.

221He diagnosed a range of conditions: chronic and refractory lumbar back pain, chronic and intractable neck and interscapular pain, Chronic Pain Syndrome, L5‑S1 disc desiccation and bulge, history of work-related injury in the incident, history of motor vehicle accident, central sensitisation, suspected myofascial pain syndrome, depression, history of illicit drug use.

222Given the long period since the injury, he would rely on the assessment of the physical injury provided by Mr Drnda, Mr Jones and Mr Dooley, who identified aggravation of pre‑existing degenerative lumbosacral spinal disease, dominant at L5‑S1.

223He had the impression that the work-related incident in 2005 had started a cascade of Chronic Pain Syndrome, typical for central sensitisation and likely subsequent evolution of a myofascial pain syndrome/syndrome.

224In his opinion, the plaintiff was experiencing the pain amplification/from the development of central sensitisation on a background of organic aggravation of his musculo­skeletal injury.

225He thought the prognosis was poor, with the plaintiff having suffered from complex chronic back pain since the stated work-related injury which required further investigations and treatment.

226As a result of his ongoing pain, the plaintiff was moderately limited in his domestic, social and recreational activities. Dr Aliashkevich thought the majority of consequences were attributable to interscapular, thoracic and lumbar back pain, and suggested diagnostic and treatment recommendations. 

227He did not comment on the plaintiff’s work capacity. 

Mr Michael Dooley, orthopaedic surgeon

228Mr Dooley examined the plaintiff in December 2019. 

229The plaintiff said he had ongoing low back pain, at times pain in the mid back, and he took Nurofen and Maxigesic. He used a spray on his back, and  physiotherapists used to tape his back. 

230The plaintiff reported nocturnal thigh and calf cramps, and at times, his hands, feet and legs became swollen.  He spent most of the day at home looking after his teenage children, having previously been active and played football.

231The plaintiff’s application for a disability support pension had been rejected.

232On examination, there was mild low lumbar tenderness.  Flexion was to 60 degrees, and extension to 15 degrees.  Lateral flexion and rotation to both sides was to 20 degrees.  Bilateral straight leg raising was to 60 degrees, at which level the plaintiff noted low back pain.  Neurological examination was normal.

233Mr Dooley noted there were no radiological investigations available for review.  In the attached documentation it was stated that the July 2005 MRI noted desiccation of the lumbosacral disc with a minor central disc bulge with no evidence of nerve root compression or of major disc prolapse.[90]

[90]The radiologist reported dessication at L5-S1 disc associated with a broad based central disc bulge

234He thought the plaintiff sustained a soft tissue injury to his lumbar spine that had involved some aggravation of underlying naturally occurring degenerative disc disease at the lumbosacral level when he was about twenty-two.

235Mr Dooley noted that while disc degeneration was thought to be predominantly age related, one did observe patients who smoke developing degeneration of soft tissues at an earlier age and to a greater degree than might otherwise occur.

236The plaintiff reported his pain persisted and worsened in time.

237While Mr Dooley accepted surgery was a theoretical option, he believed the chances of it providing lasting improvement in terms of pain and function, in the setting of a soft tissue aggravation sustained in a compensable setting, were very low at best.

238He noted the plaintiff currently reported ongoing low back pain and major disability.  Accepting that the plaintiff suffered a soft tissue injury, Mr Dooley thought that the constancy and intensity of his ongoing pain and his described disability were greater than one would expect to see for his organic condition, and he believed his psychological condition had influenced his ongoing symptoms.

239Orthopaedically, he thought it important that the plaintiff remained generally active and undertook low impact exercise, and at the age of thirty-six, it was imperative that he returned to suitable work such as drafting or cabinet-making design.  He did not require regular ongoing formal conservative treatment, and there was no indication for surgery.

240From an orthopaedic point of view, he expected the plaintiff to note ongoing intermittent low back pain, and he would not expect his orthopaedic condition to deteriorate over and above the natural evolution of his underlying degenerative disc disease.

241He thought plaintiff had naturally-occurring degenerative disc disease involving the lumbosacral disc, that was aggravated in the incident.

242He would expect the plaintiff to have difficulties with heavy physical activity and with a lot of lifting, bending, and manoeuvring, and would expect him to have difficulty engaging in active impact leisure pursuits.

243On re‑examination in January this year, the plaintiff reported ongoing low back pain, and that his back was often sore and stiff first thing in the morning.  He could have difficulty putting on his shoes and socks.

244On examination, there was no local tenderness.  Flexion was to 40 degrees, and extension to 15 degrees. Lateral flexion and rotation to both sides was to 20 degrees.  Bilateral straight leg raising was to 50 degrees, with low back pain at that level.  Neurologically, the examination was normal.

245Diagnosis, clinical impression and opinion remained essentially as outlined in the previous report.

246In a supplementary report, Mr Dooley advised, from an orthopaedic viewpoint, the plaintiff had a physical capacity to work as a cabinet draftsman/‌designer, retail assistant/representative, rental salesperson.

247In his view, any return to suitable work would need to be on a graduated basis, and one would then be better able to judge the number of hours he would be able to ultimately work in time.  From an orthopaedic point of view, he would expect the plaintiff to have a physical capacity to increase his hours towards full time, and he would also have a physical capacity to complete the short design course.

Dr Sam Soliman, occupational physician

248Dr Soliman examined the plaintiff in July 2021.

249The plaintiff then complained of constant low back pain which was 4 to 5 out of 10 in severity and could go up to 7 to 8 out of 10.  He also reported numbness hamstring/and toe.  He said he was taking Panadol and Nurofen about four times a week.

250On examination, the plaintiff’s back was hypersensitive on light touch.  Flexion was to 70 degrees, extension to 20 degrees, and lateral flexion to 30 degrees.  Straight leg raise was to 70 degrees bilaterally. 

251The plaintiff said his left leg medial side was numb.  He had multiple positive Waddell signs which indicated a non-organic component to his lower back pain including non-specific tenderness and non-anatomical distribution, axial loading, rotation and indirect observations.  However, despite the hypersensitivity, he was moving more freely when he was not being observed.

252The history included back pain from a car accident prior to the incident.  His lower back had been improving, according to him, until he slipped and fell at home the day before the MRI scan.  He had multiple social and personal circumstances, including multiple jail sentences, marital issues, drug abuse, being homeless, chronic depression, extensive periods of unemployment, a rejected WorkCover claim for unfair dismissal and stress, and no ongoing lower back complaints since 2007.

253Based on his examination and the provided history, from a physical perspective, Dr Soliman considered the plaintiff had a work capacity for suitable duties, and any incapacity was not related to his employment but to personal issues.

254From a physical perspective, he thought the plaintiff had a temporary exacerbation of a minor degenerative L5‑S1 disc disease in 2005 which had fully settled a long time ago.  He may have developed other unrelated disc and facet joint degenerative changes since which are relatively prevalent.

255Dr Soliman thought any incident-related injury had resolved, and a work contribution had ceased.  He thought the plaintiff had a capacity for most of the pre-injury employment as a cabinetmaker, except for transferring heavy cabinets.  He could work full time, but it would be advisable to avoid repetitive lifting over 12 kilograms.

256In a supplementary report commenting on the August 2021 vocational assessment, Dr Soliman concluded that the plaintiff does not have the capacity to perform the cabinetmaker roles identified without modification/, as they require repetitive heavy lifting according to the job description.

Criminal history/imprisonment

257The defendant tendered numerous certified extracts of the plaintiff’s criminal convictions.

258It was agreed between the parties the plaintiff was incarcerated during the following dates:

·        December 2010 – March 2011

·        July 2011 – February 2013

·        April 2016 – June 2016

·        July 2017 – September 2017

·        October 2018 – July 2019

·        February 2020 – September 2020.

Overview

259It is not in issue that the plaintiff suffered a compensable injury to his lumbar spine in the 2005 incident when he was aged twenty-two.  His claim was accepted, and he was in receipt of weekly payments for about two years.[91]  He also was paid an impairment benefit.[92]  

[91]24 June 2005 to 23 August 2007

[92]        Five per cent lumbar impairment – following examination by Mr Brendan Dooley in October 2007

260There is no significant history of any back pain pre incident.  The plaintiff had a minor transport accident in 2001 but was able to return to playing footy soon after.

261While the 2005 MRI is somewhat outdated, and further investigations have been suggested,[93] examiners who saw the plaintiff soon thereafter who were aware of the radiologist’s conclusion – desiccation at L5-S1 associated with a broadbased central disc bulge – were satisfied the plaintiff had suffered a lumbar disc injury in the incident.

[93]        Dr Aliashkevich, Professor Teddy and Dr Slesenger

262Treaters, Dr Zallmann and neurologist, Mr Drnda, thought there was disc damage. Medico-legal examiners – orthopaedic surgeon, Mr Clive Jones, who saw the plaintiff on behalf of the insurer, agreed, diagnosing a “significant lumbar disc injury” when he saw the plaintiff in late 2006.  He also described the plaintiff as a genuine individual.  Mr Brendan Dooley thought there had been an aggravation of lumbosacral disc degenerative changes.

263Before the “stairs incident”, Dr Zallmann had arranged the lumbar MRI scan.  She also noted, on examination on 4 July 2005, the plaintiff’s movements were still very limited and restriction of movement was unchanged since his last visit on 23 June 2005.

264In more recent times, Dr Aliaskevich provided a range of diagnoses, including L5‑S1 disc desiccation and bulge.[94]  Professor Teddy thought the plaintiff suffered an apparent exacerbation of lumbar spondylosis manifest as disc degeneration at L5-S1.  Dr Slesenger diagnosed a soft tissue injury, as did Mr Michael Dooley, who also thought there was some aggravation of underlying degenerative change.

[94]        Paragraph 221 of my Judgment

265These examiners had a full history of the plaintiff’s treatment and history since the incident and concluded the effects of the incident injury continued, despite not having more recent radiology available.

266Dr Soliman, occupational physician, is an outlier, the only examiner of the view the plaintiff’s lumbar condition had resolved.  He gave no explanation for this view and based his conclusion on a history which was inaccurate in many respects – in particular, a history of no ongoing back complaints since 2007.[95] 

[95]T148

267I accept the preponderance of medical evidence that the plaintiff suffered a lumbar disc injury in the incident which continues to materially contribute to his current lumbar presentation.

Credit

268As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[96]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”  

[96](2010) 31 VR 1 at paragraph [12]

269Counsel for the defendant submitted credit “looms large” over the application.[97] The plaintiff’s affidavits and other evidence were “shambolic”, with the affidavits full of inconsistencies, full of exaggerations and deliberate mistruths.  The failure to disclose the true work history was an example of a deliberate mistruth.  There was no mention of subsequent jobs and they only just came out in cross-examination.[98] 

[97]        T122

[98]T128

270Further, it was a deliberate mistruth that the slightest bending then caused an increase in pain.[99]  It was submitted the plaintiff presented a strong picture of disability and that bending and reaching can hurt.  He also mentioned constant pain in all his affidavits.  The film showed that just to be a nonsense.[100]  The core deliberate mistruth is constant pain aggravated by the smallest benign activities.[101] 

[99]T129

[100]T129

[101]T131

271Further, the plaintiff’s criminal history reveals repeated levels of dishonesty, and that situation has continued through the hearing.[102]

[102]      T125

272Counsel for the plaintiff submitted the plaintiff was truthful, and gave evidence to the extent he is able to, and does do things which ordinarily he ought not do because of back pain.[103]

[103]      T136

273It was submitted that he had made frank concessions about “everything under the sun, most of which was against his interest”.  While he has multiple criminal convictions for many offences including ones involving dishonesty, his evidence in this case has been creditable and he should be accepted as a credible witness.[104]

[104]      T161

274Further, the film had to be viewed in its entirety, with 79 hours of surveillance and only two hours of film.[105]  The plaintiff was filmed weeks before he was sentenced to another jail term.  He was also filmed laying down to do an activity, so he did not have to bend.[106]

[105]T136

[106]      T136

275It was disputed the plaintiff’s evidence was “shambolic”.  Any omissions were minor and involved very short-term work.  The plaintiff said he had difficulty picking up very light things from the floor from time to time.  He did not say it was a very permanent feature of the injury.[107]  Ice is an explanation and is “common knowledge in the community”.[108] 

[107]T134

[108]T135

276As I indicated during the hearing, I did not consider there were deliberate mistruths on the plaintiff’s behalf.  It is understandable he did not give full details of his work history post incident – which was spasmodic in any event – because of the many other issues at that time when his life was spiralling out of control.

277The level of activity shown in the film was of some concern but I did not consider the plaintiff’s evidence was that he could do nothing or was a cripple.  Further,  there were many hours of surveillance and little film shown.

278I am also required to take into account the plaintiff’s explanation that he was able to do what was shown because he was on Ice at the time.[109]  While this evidence could not be challenged, it is significant that he was imprisoned again several weeks later.

[109]      Woolworths v Warfe [2013] VSCA 22 at paragraph [111]

279While the plaintiff has a history of offences involving dishonesty, I thought he was a truthful witness who tried to do his best.  He is a man who clearly regrets the mistakes he has made in his life and wants to get on with his future.  His apology after leaving the Court at lunchtime of the first day of hearing made that clear.

280Finally, in this case, where there is objective evidence of lumbar injury, the plaintiff’s credit assumes a reduced importance as seriousness must assessed on all the evidence.[110]

[110]      Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167

Pain

281As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[111]

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)what the plaintiff says about the pain (both in court and to doctors);

… .”

[111]      (supra) at paragraph [11]

282The plaintiff has not described being crippled by pain.  His back pain has been constant at varying levels since the incident.  Leg pain comes on when there are flare ups.  His pain is activity related and aggravated particularly by bending forward.[112]

[112]      T15

283Complaints to recent medico-legal examiners have been in similar terms.[113] In July this year, he told Dr Soliman his pain ranged from 4 to 5 out of 10 to 7 to 8 out of 10.

[113]      Mr Michael Dooley, December 2019 and January 2021 and Dr Slesenger September 2021

284Limitation of lumbar movement has been found by most examiners.  Dr Soliman is the only examiner who thought there was a non-organic component to the plaintiff’s presentation.[114]

[114]      Mr Michael Dooley thought there was a psychological contribution.

285The plaintiff is still a relatively young man, presently aged thirty-eight.  He will continue to experience back pain for many years.

286In Stijepic v One Force Group Aust Pty Ltd,[115] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.

[115] [2009] VSCA 181 at paragraph [43]

287The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it is relevant to look at the likely period for which those consequences would be experienced.  It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.

Treatment

288Initial treatment for back complaints consisted of regular attendances with Dr Zallmann in 2005 and less frequently over 2006-2007.  On 22 April 2008, there was a note of two-month flare up of low back pain.

289A Gamblers Help referral form dated 26 October 2009 set out “chronic back pain subsequent to heavy lifting work”.

290On 19 January 2010, Dr Zallmann noted the plaintiff estimated back pain of 7 out of 10 for more than four years. 

291Over the following years, the plaintiff spent a lot of time in jail, where I accept he had treatment for his back at various times.

292It is understandable, with only conservative treatment having been suggested, that the plaintiff would not be a regular attendee at his general practitioner, especially where his life was fuelled by drugs and alcohol and he had significant periods of jail.[116]

[116]      T153

293In terms of specialist treatment, in 2005, the plaintiff was referred to neurosurgeon, Mr Drnda, who advised conservative treatment, although suggesting surgery may be an option.

294Initially, the plaintiff was prescribed Tramal and Voltaren by Dr Zallmann.  He has also been prescribed Endone with which he developed problems.  In more recent times, given his drug issues, he is reluctant to take heavier painkillers and relies on over-the-counter medication such as Maxigesic and ibuprofen.   

295The plaintiff had physiotherapy initially from Clive Percival and then as part of his VRC interdisciplinary program in 2005.

296While there was no report from her,[117] I accept that the plaintiff has had physiotherapy at various times from “a lady” at the footy club.  I also accept that he saw a doctor at times for back pain when he was in jail.

[117]T123

297The plaintiff’s partner continues to tape his back for support.  He also applies multiple heat packs during the day and does exercises at home.

Trade – work

298The main consequence relied upon by the plaintiff was in relation to employment. It was submitted the plaintiff had lost something very important to him at which he had worked hard, trained hard and studied hard, being that of his trade as a cabinetmaker.[118]

[118]T159

299Counsel for the defendant submitted that the plaintiff had been able to find alternative work such as the job at Touch Wood doing drawing.[119]  While that return to alternative work is not determinative against the plaintiff on the issue of pain and suffering, then it tends, in the absence of other evidence, against a conclusion that the pain and suffering consequences are “serious”, although all of the evidence must be looked at.[120]

[119]Stijepic v One Force Group Aust Pty Ltd (supra) and also Chernov AJ in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292

[120]T124

300It was submitted the loss of a trade was not a significant issue in this application as the plaintiff went back to drawing work, which he found enjoyable and could manage.[121]  Therefore, on the basis of Ellis Management Services v Taylor,[122] there is no viable submission the plaintiff has been denied his ability to engage in employment of a particular kind he happens to enjoy.[123] 

[121]T124

[122][2013] VSCA 326

[123]T125

301It was submitted it would be different if the plaintiff could only do light, boring factory work, but he could do design.  Enjoyment of work is the key.  If he is finding enjoyment and satisfaction in his work then, according to his own evidence, that is relevant.[124]

[124]T125

302Further, the plaintiff’s problems at Touch Wood were totally unconnected to any back injury.[125] 

[125]T127

303It is not in issue that a career change was recommended at a very early stage by a number of examiners.  Having worked in his trade since leaving school in Year 10, he took that advice and embarked on a self-funded drawing course which he had to cease after only a short time because WorkCover indicated it would cease weekly payments and wanted him to do a computer course.

304While he enjoyed the drawing course and doing the limited drawing work that followed, that was not his career plan.  It became his plan “since the injury.”[126]

[126]      T73

305He has been able to return to work on a limited basis.  Although he did not lose the Touchwood job because of his injury, I accept that in future jobs, the plaintiff would have difficulty with prolonged postures, particularly sitting.  There are also his issues with dyslexia.

306I accept that the plaintiff would like to get back to work if he could find a suitable job.  Not only has he lost his trade as a result of his back injury, he no longer has the capacity to do unrestricted physical work – a particular issue for a man with limited job opportunities, having recently got out of jail.

307His frustration and disappointment losing his trade is a significant pain and suffering consequence in this case.[127]

[127]      Haden Engineering (supra) at paragraph [15] and Peak Engineering (supra) at paragraph [12]

308I also accept that the plaintiff is restricted in domestic and social activities because of his back pain.  As a man in his early twenties pre incident, he enjoyed playing golf, fishing and had played club football.  He has not returned to golf or fishing.

309As a result of his back injury, he is now less physically active and unable to perform a range of activities he would like to share with his teenage daughters.  He perseveres with walking although it gives him back pain.

310Taking into account all the evidence, I am satisfied the consequences of his lumbar impairment are “serious”.  As the condition has persisted for in excess of fifteen years with no significant improvement, the impairment is permanent.

311Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in relation to the incident.

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