Wickson, Michael v M C Herd Pty Ltd
[2009] VCC 1483
•3 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
WORKCOVER LIST
SERIOUS INJURY
Case No. CI-08-04147
| MICHAEL WICKSON | Plaintiff |
| v | |
| M C HERD PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O’NEILL |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 20 and 21 August 2009 |
| DATE OF JUDGMENT: | 3 September 2009 |
| CASE MAY BE CITED AS: | Wickson, Michael v M C Herd Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1483 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – s.134AB Accident Compensation Act 1985 – discrete injury to lumbar spine – injury over the course of employment – pain and suffering only – whether consequences “very significant”
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with | Maurice Blackburn |
| Mr D J N Purcell | ||
| For the Defendant | Mr J A Tebbutt with | Wisewoulds Mahony |
| Ms A M Magee | ||
| HIS HONOUR: |
Preliminary
1 The plaintiff claims to have suffered injury to his lumbar spine on 21 August 2002 in the course of his employment as a meatworker with the defendant. After a short period off work, he returned to normal duties although avoiding the heavier lifting aspects of his work. He suffered aggravations in his spinal condition from time to time thereafter and as a result, both of those aggravations and his desire to expand his knowledge and experience, the plaintiff trained firstly as a meat inspector, and then as a workplace trainer in abattoirs. He is currently working full-time in that capacity.
2 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment. The Originating Motion issued by the plaintiff sought relief:
“For personal injuries arising out of or in the course of, or due to the nature of, employment subsequent to 2 October 1999 and on or about 21 August 2002 … .”
3 The plaintiff’s draft Statement of Claim, filed in accordance with the Ministerial Directions, sought relief[1] as follows:
“Throughout the course of the plaintiff’s employment, the plaintiff was required to carry out heavy, repetitive and arduous duties, with associated bending and lifting (‘the work’).
As a result of performing the work and including on or about 21 August 2002, when the plaintiff was required to throw frozen sheep carcasses into a truck, the plaintiff suffered injury, loss and damage.”
[1] Paragraph 4
4 Mr Mighell, on behalf of the plaintiff, identified the body function said to be lost or impaired as the lumbar spine. This application is thus brought under sub- s.(a) of the definition “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of pain and suffering only.
5 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of impairments or losses of the body function of the spine.
6 The plaintiff and the treating specialist, Dr Steven Jensen, were called to give evidence and be cross-examined. In addition, medical reports, various relevant correspondence, and other material was tendered into evidence. I have read all the tendered material.
7 On behalf of the defendant, Ms Magee outlined the position of her client in response to the application as follows:
•
She stated that the onus was upon the plaintiff to prove what impairment was claimed as a result of the injury sustained on 21 August 2002. It was that injury which was the subject of the application.
•
The consequences of that injury, when considered within the range of other injuries, did not achieve the very considerable level as required by the legislation.
Relevant Background
8 The plaintiff was born in 1962 and is currently forty-six years of age. He left school in approximately Year 9 and worked in various positions, including for International Harvester and on the railways. He obtained employment at Australia Post as a postman in the mid-1980s. In the course of that employment, he suffered various injuries, including to his neck and upper back. It is clear from the clinical notes of the plaintiff’s then treating osteopath, Ms Parker, that he made various complaints of low-back pain from time to time while he worked at Australia Post.
9 In approximately 1996, while working as a postman, he suffered an injury to his neck. From that time up until 2000 he was treated regularly by the osteopath, Ms Parker, for neck and mid-back pain and restriction. He had a number or cortisone injections to the neck over the years. On a number of occasions in 1999 and 2000, the osteopathic clinical notes record low-back problems. The plaintiff accepted that he had niggling low-back pain which fluctuated and required episodic osteopathic treatment.
10 The plaintiff’s pain and restriction in his neck have continued through to the present time. The neck problem required him to attend Dr Steven Jensen, a musculoskeletal pain medicine specialist, in 1998. He also saw a specialist neurologist.
11 According to the plaintiff’s affidavit,[2] before the incident he claimed to be very active. He stated that he played regular squash and mixed netball, enjoyed swimming and was a keen fisherman. He said he undertook gardening and maintenance around the house and that as a result of his lumbar injury his social, recreational and home life had suffered.
[2] Plaintiff’s Court Book (“PCB”) 24
12 Prior to commencing work with the defendant in late 2001, the plaintiff undertook a computer course at Gordon TAFE after he left Australia Post. His intention was to “better myself”[3] and to enable him to improve his earning capacity.
[3] Transcript (“T”) 112
13 In evidence, the plaintiff stated that as a result of his back injury he had been unable to fish which he said he had undertaken “all my life”.[4] This was because he was unable to handle the boat which he had owned prior to injury, by himself. He stated that he had enjoyed bike riding, but was limited in the riding he could now do.[5]
[4] T 14
[5] T 15
14 Of significance, when he obtained employment with the defendant in late 2001, he underwent a medical examination to determine his fitness for work.[6] This report showed the plaintiff had good lumbar and cervical movement and the assessment was otherwise uneventful.
[6] Defendant’s Court Book (“DCB”) 16
The Injury and its Consequences
15 According to his affidavit,[7] the plaintiff claims that on 21 August 2002 he was loading a container with frozen sheep carcasses. These weighed in the order of 15 kilograms and he developed low back pain with pain into his right leg when repetitively lifting the carcasses.
[7] PCB 22
16 After the incident he saw the company doctor, Dr Carroll. He had several weeks away from work, and was referred for physiotherapy in Geelong.[8] The plaintiff was then certified by Dr Carroll as being fit for light duties for a short period until September 2002. Thereafter he was certified by Dr Carroll as being fit for normal duties from 5 September 2002.[9]
[8] PCB 31
[9] See WorkCover Certificate of Capacity – Exhibit 1.
17 From that time until the middle of 2003 the plaintiff remained on normal duties, save that he claimed that whereas before the incident the bulk of his time was spent in physical labour lifting animal carcasses, and only a small proportion in the driving of a forklift, that arrangement reverted after injury. He spent most of his time driving the forklift, and less time in repetitive physical labour.
18 In evidence, he claimed that after the incident, he was never without pain in his back. The plaintiff also returned for treatment with his osteopath, on 22 August 2002. The clinical notes of the osteopath state that by mid- September, the plaintiff was suffering occasional twinges only, and was otherwise significantly improved. He agreed with the history given according to these records.[10] In the report of the osteopath[11] the plaintiff had six treatments between 22 August 2002 and 19 September 2002, during which time “his symptoms gradually resolved” with occasional low-back twinge and no leg pain.
[10] T 45
[11] PCB 47
19 In mid-2003 the plaintiff suffered another flare-up of back pain. There was reference in the osteopathic clinical notes to back pain while driving a forklift, and to Mr Jensen, who the plaintiff saw in January 2004, he complained[12] of an episode in June 2003 when he twisted in a chair at home and his back “went” on him. According to Mr Jensen, that episode took approximately one month to settle.
[12] PCB 34
20 Further, according to Dr Jensen,[13] one month before December 2006 the plaintiff had a further flare-up when getting out of bed. Dr Jensen noted on this occasion his symptoms were somewhat different, in that his leg pain became worse than the back pain.
[13] PCB 35
21 In the course of his employment up until December 2006, the plaintiff from time to time lifted significant weights, including boxes weighing up to 23 kilograms.[14] The incident involving the forklift and increased lower back pain in June 2003 was the subject of a report.[15]
[14] DCB 24
[15] DCB 26
22 He had further physiotherapy in June and October 2003 and was provided with a self-management strengthening program.
23 From June 2006, the plaintiff was treated by Dr Randall, general practitioner.[16]
[16] PCB 29
24 In January 2004, the plaintiff was again referred to Dr Steven Jensen, a specialist in pain medicine, for treatment. He obtained a history[17] that after the initial incident there was some improvement, but the pain never really went away.
[17] PCB 34
25 In January 2004, Dr Jenson referred the plaintiff to Dr Paul Verrills, pain- management specialist, for facet joint injections.[18] These occurred in January 2004 and March 2004. According to Dr Verrills, these provided considerable relief, and in May 2004, the plaintiff underwent radiofrequency neurotomy. This involves the insertion of a needle into the facet joints of the spine under x-ray control, and the treatment, by heat, of the nerves in the facet joint area. The plaintiff was advised that the treatment would last up to twelve months, but was palliative only. The initial treatment was successful, and the plaintiff was “more or less pain-free”. This persisted for about eleven months, and in May 2005 a further neurotomy was undertaken. These treatments continued up until August 2007. On each occasion, the plaintiff claimed that he was receiving less relief. The last treatment, in August 2007, lasted only about six months.
[18] PCB 40-41
26 From December 2006, the plaintiff was on modified duties until March 2007 when he was certified as being unfit for any work. In August 2007, his employment was terminated. In 2007, the plaintiff undertook training to become a meat inspector. He then changed course again, and became employed by Southern Edge Training as an onsite work trainer involved in the meat industry. He found this employment on the open market, although with some assistance from a rehabilitation company. He has maintained this employment, on a full-time basis, to the present time.
27 The work involves travelling to various abattoirs, including particularly to Brooklyn and Kyneton, where the plaintiff spends time in a classroom giving instruction to trainees, together with on-the-job assessments. This employment requires considerable driving from the plaintiff’s home in Geelong to Melbourne and Kyneton; sometimes up to an hour and a half in the car each way. The plaintiff’s son works with him, and takes some of the driving duties. The plaintiff stated that he was able to manage the job, and the hours.
28 Over the years, the plaintiff has taken various medication, including, at times, strong pain-relieving morphine-based medication, Endone, and Gabapentin. He also used Norspan patches. At the present time, he takes Digesic for pain relief, two to eight tablets per day, and Mobic from time to time when needed.
29 He now has little in the way of active treatment, save to attend his general practitioner for prescription of medication. He claims that his sleep is affected, and he wakes regularly during the night with low back pain and pain shooting into his right leg. He uses heat-bags and hot towels to relieve the pain. He claims he is unable to fish, as he is unable to handle his boat with his back pain. He claims his personal relationship with his wife has been affected. He states he cannot carry out maintenance and gardening work as he used to do. He rides a pushbike, but suffers pain as a result. According to his affidavit[19] he regularly played squash and mixed netball. He has had to give up these sports. Generally, he has suffered a restriction in a range of social, recreational and domestic tasks and pastimes.
[19] PCB 24
Medical Evidence
30 There is no report from Dr Carroll, who originally treated the plaintiff, although Dr Randall, from the same clinic, reported in May 2007 and May 2009.[20] He diagnosed a pain state due to L4-5, L5-S1 disc disease, and facet joint arthritis. He thought this was caused by years of labouring.
[20] PCB 29-30
31 Dr Jensen treated the plaintiff from January 2004 until 2007. He noted complaints of exacerbations of low back pain and referred pain into his right leg from time to time. He was never really pain-free. These exacerbations included June 2003, May 2006, and in particular December 2006, when there was a considerable change in the symptoms to the right leg. There was sharp pain to the thigh, throbbing to his calf, and dysaesthesia over the lateral calf. He referred the plaintiff to Dr Verrills for neurotomy treatment.
32 In terms of neurological examination, he found profound weakness of the first toe extension and mild weakness of the hamstring and foot eversion, but this was only after December 2006. As a result of these signs, he arranged an MRI scan which revealed a degenerate L5-S1 disc, with some central protrusion, indenting the theca, but not significantly displacing any nerve roots. Bilateral facet joint hypertrophy was noted at that level. At L4-5 there was general disc disease, with a small annular tear and mild facet joint degeneration, again without significant nerve root entrapment. This MRI scan did not reveal a cause for the right leg or right foot weakness. Other investigations did not provide any cause.
33 Dr Jensen concluded that the plaintiff had suffered a work-related injury to his lumbar facet joints, which was evident as a result of the positive response to the neurotomies. He further considered there had been an aggravation of his back condition causing some L5 radiculopathy. He considered work a significant factor, given the plaintiff’s long history of manual handling and heavy lifting, bending, and twisting.
34 Dr Jensen attended for cross-examination. He noted[21] that the radiculopathy was a progression of the original injury of August 2002. He considered[22] that at some time the plaintiff had suffered a disc prolapse, impinging upon the L5 nerve root, but that prolapse had resolved. He considered there may have been a chemical leak from the L5-S1 disc which irritated the nerve, thus explaining the radicular symptoms in 2006.
[21] T 126
[22] T 126
35 In cross-examination, Dr Jensen was taken through the various exacerbations and noted that until December 2006 there were no significant neurological findings by any practitioner. He agreed that in December 2006 there was a dramatic change to the plaintiff’s presentation, including a very sharp pain into the right leg or thigh, and a constant throb in the calf. Since the plaintiff had suffered the injury in August 2002, the pain never really went away. Thereafter the plaintiff had suffered various strains to the low back from time to time.
36 In re-examination,[23] it was put to Dr Jensen that from 2000 to 2002 the plaintiff was relatively pain-free in terms of his low back. He then suffered the incident in August 2002, after six months of heavy work. He had a short period off work, and worked on modified duties thereafter. The plaintiff claimed never to have been pain-free, and undertook osteopathic and physiotherapy treatment. The neurotomies were performed over 2004 to 2007, and in 2006 the plaintiff had suffered the radicular symptoms. In these circumstances[24] Dr Jensen thought the incident of August 2002 was related to the development of radiculopathy in December 2006. Although the neurotomies did improve his back pain, there was some residual pain which was likely to be as a result of a disc problem. Each subsequent incident was a further insult to the disc. The incident of August 2002 was probably a significant factor.[25]
[23] T 149 and following
[24] T 152
[25] T 153
37 In his report of 14 August 2007,[26] Dr Verrills set forth his treatment of the plaintiff by way of facet joint injections, and neurotomies. Dr Verrills considered that the plaintiff had suffered a significant disc injury to his right L4-5 and L5-S1 facet joints in August 2002. He considered the plaintiff’s prognosis for ongoing work capacity was good, and that he had shown tremendous resolve to stay in the workforce. He proposed to continue the neurotomies into the future.
[26] PCB 40-42
38 In her report of 30 May 2007, Ms Janine Parker, osteopath, described her treatment of the plaintiff over the years. The report notes resolution of symptoms after the original injury, and then further exacerbations.
39 In his report of 19 May 2009 to the plaintiff’s solicitors,[27] Mr Khan, orthopaedic surgeon, obtained a description of the injury of 21 August 2002, and noted flare-ups in pain from time to time, including June 2003. He noted that his current employment as a workplace trainer required him to work full-time, 37 hours per week, but was lighter duties than he had previously undertaken. He noted most of the plaintiff’s then-current complaints of pain were in the right buttock and thigh area. There was some weakness in the right ankle and extensor movement of the right toe, but no other neurological deficit.
[27] PCB 53-60
40 Mr Khan considered the plaintiff had mild discogenic pain, consistent with work with the defendant, and affecting the two lower lumbar discs, and facet joint arthropathy. He said there was no nerve root entrapment, radiologically. He considered the plaintiff would be unable to do work which required excessive bending, twisting, or turning of his cervical and lumbar spines, and therefore he had a partial incapacity as a result of his injuries. He considered the plaintiff’s condition had stabilised, and there was no indication for surgical treatment.
41 On behalf of the defendant, Dr McGivern provided a report of her treatment of the plaintiff.[28] It is not clear when she treated the plaintiff, but she considered the plaintiff had suffered an injury resulting in facet joint arthropathy as a result of the incident of August 2002, aggravated by work duties in June 2003.
[28] DCB 29-30
42 Dr David Barton, occupational physician, reported in November 2003 and June 2004.[29] There was some restriction in examination, but neurological examination was normal. He noted a plain X-ray taken in July 2003 which was normal. He considered the plaintiff had suffered a soft-tissue injury to his back, attributable to employment, but that the plaintiff was fit to continue with his work on the mutton chain. He thought there had been a good resolution of the plaintiff’s symptoms following the neurotomy.
[29] DCB 31-38
43 Dr Maurice Wallin, specialist in rehabilitation medicine, reported in September 2006.[30] He noted that the plaintiff over the years from 2002 had had little time off work, save for the neurotomies and injections into the spine. When he examined the plaintiff he noted a complaint of knife-like sensation extending down the right thigh. The plaintiff stated that his back problem had “plateaued out”, and that he had to be very careful with the activities he was undertaking so as not to aggravate the back pain. Neurological investigation was normal.
[30] DCB 39-48
44 Dr Wallin concluded that the plaintiff had persisting thoracic and lumbar spine pain which he thought was genuine and resulted in a loss of mobility. He considered that this was related to the plaintiff’s work, in part from the lumbosacral disc which was aggravated in the episode of 21 August 2002. There were no treatments available which would settle the condition down, and the pain was likely to continue into the foreseeable future. There was also a problem with the plaintiff’s lumbar and possibly thoracic facet joints. The plaintiff was capable of continuing his employment, providing he avoided heavy lifting, twisting, etc. He should not work handling frozen sheep carcasses.
45 The plaintiff was examined by Mr Peter Scott, surgeon, in January 2007.[31] He obtained a history of the original incident, and then exacerbations from time to time thereafter, including in May 2003 and late 2006. Mr Scott considered that the plaintiff had suffered discogenic problems in his lumbosacral spine, including intermittent right-sided nerve-root irritation, as a result of which he was fit only for light duties. He did not consider surgery appropriate. He said the work incident of August 2002 had initiated an intervertebral disc lesion at L5-S1 and recurring right-sided lumbosacral nerve-root irritation. He considered the prognosis uncertain.
[31] DCB 49-55
46 The plaintiff was examined by Mr Bruce Love, orthopaedic surgeon, on one occasion in June 2007.[32] He considered the plaintiff had symptoms indicative of nerve-root irritation severe enough to prevent him working in his heavy occupation. He considered that surgery was appropriate, and that the symptoms into the leg were likely to remain until such surgery was performed. He concluded that the plaintiff required surgical decompression at L5, on the right side.
[32] DCB 57-59
47 The plaintiff was examined by Mr Keith Elsner, orthopaedic surgeon, in November 2007.[33] Upon examination, Mr Elsner noted marked reduction of power of extension of the right big toe, this area being supplied by the L5 nerve root. The plaintiff complained of that weakness some time after the injury of August 2002. He inspected CT films of July 2007 which showed small disc bulges at L4-5 and L5-S1, without obvious nerve-root compression. MRI scans of March 2007 were similar.
[33] DCB 60-63
48 Mr Elsner noted various other examiners had reported weakness of the right big toe extensor. It was Mr Elsner’s opinion that the plaintiff’s employment had been a significant contributing factor to aggravation of lumbar disc degenerative changes, particularly at L4-5. Given the persistent weakness in right big toe extensor, he could not exclude L5 radiculopathy, despite the findings on radiology.
49 Finally, Mr Greg Malham, neurosurgeon, reported to the insurer in January 2008.[34] He saw the plaintiff for treatment in June 2007, upon referral from Dr Jensen. He was referred for “painful right foot drop”. As the plaintiff had relief from medial branch blocks, he considered that the L5-S1 facet joint was the main reason for lower back pain. However, by May 2006 the neurotomies were having less effect, and the pain was radiating down the right leg to the heel and sole of the foot. He noted the MRI scan showed no nerve-root compression. Further investigations, including MRI of the pelvis and nerve- conduction studies, showed no source for the right leg problem. He noted that Dr Jensen had performed a nerve-root injection to the L5 transforaminal nerve in May 2007 which gave immediate relief.
[34] DCB 75-86
50 Upon examination, Mr Malham noted partial right foot drop. He undertook a CT lumbar myelogram which was performed in July 2007 and did not show any significant right L5 nerve-root compression. He returned the plaintiff for treatment by his general practitioner and Dr Jensen.
51 The various investigations undertaken in respect of the plaintiff’s injury are set forth in Mr Malham’s report.[35] He considered that the plaintiff’s heavy duties as a labourer may have contributed to his then-current condition. He recommended that the plaintiff consult a neurologist.
[35] DCB 78
Summary and Findings in Relation to Medical Evidence
52 I am satisfied the plaintiff suffered an injury to his lower spine in the lifting incident in August 2002. Prior to that time, he had suffered low-back problems from time to time, even with some referred pain to the right leg over the years, particularly 1999 and 2000. However, he underwent a medical examination when he commenced with the defendant in late 2001 which cleared him for heavy work, and he undertook that work until August 2002 without difficulty.
53 In that incident, I am satisfied, particularly given the evidence of Dr Jensen, that the plaintiff suffered an injury which affected the lumbar facet joints together with an injury to the L5-S1 disc. This required him to have some treatment from the physiotherapist and osteopath, and some time away from work.
54 The course of the injury thereafter is somewhat curious. It appears his condition improved considerably during 2002, enabling him to return to his previous employment, albeit with some modification, and thereafter he suffered exacerbations in his condition including in June 2003, May 2006, and on various other occasions, and in particular in December 2006.
55 It is put by Ms Magee that the plaintiff made a complete or near complete recovery from the relevant incident, but then suffered various other assaults to his spine, which followed the course which had commenced well before the injury. The incident of 2002, she said, was no more than another exacerbation of an underlying condition.
56 Much depends on whether I accept the evidence of the plaintiff that from August 2002 his pain never really went away, and that while there was considerable improvement, he continued to suffer lower-back pain and right- leg pain on an ongoing basis. It is clear that there was some significant exacerbation in December 2006 with more pronounced radiculopathy, and in particular neurological signs including right great toe eversion and ankle weakness. In that regard, I do accept the evidence of both Dr Jensen and Mr Elsner that, although not confirmed on CT nor MRI scans, there is some partial right L5 radiculopathy explaining the neurological signs to his right foot. It is difficult to be precise as to when these symptoms came about, but it would appear to be some time in late 2006.
57 Many of the treating and consultant practitioners obtained a history of the fluctuation in the plaintiff’s lower-back condition from time to time,[36] although it could be said that they did not receive a clear history of the improvement in the plaintiff’s symptoms, particularly over the period in 2002-2003.
[36] See reports of Dr Jensen, PCB 34-35; Mr Khan, PCB 54; Mr Scott, DCB 50-52
58 I do not accept the opinion of Dr Barton that the plaintiff suffered a soft-tissue injury to his lower back and was in a position to maintain heavy employment. That opinion is contrary to almost all of the other medical opinions, and is now somewhat dated.
59 The medical opinion is uniform that the plaintiff is not in a position to return to his previous heavy duties, but is fit for modified duties, and in particular the work that he is presently carrying out as a workplace trainer.
60 Many of the medical reports refer to the fact that the plaintiff had worked with the defendant in heavy duties from 2000. In addition, Dr Jensen said that his back problems probably started in the 1990s when he first received treatment from the osteopath.[37] When I asked him, however, as to the extent to which the incident of August 2002 affected his current lower back and leg condition, he described it as “probably significant”.[38] He also conceded other events were significant.
[37] T 152
[38] T 153
Credibility of the Plaintiff
61 In his affidavit, and in evidence, the plaintiff stated that before August 2002, he had been active in his recreational and sporting pursuits, including playing golf regularly, although he had ceased club membership in 2000. He also enjoyed fishing, squash, and netball. Various extracts from medical reports obtained in relation to his earlier cervical spine claim were put to him, including, a report from Mr Billet of March 1999 where he agreed he had given up golf before 1996. Further, Mr Pease in a report of June 1998 obtained a history that the plaintiff had enjoyed playing golf, but was no longer able to indulge in that activity.
62 Of significance are two letters written by the plaintiff to Australia Post in support of his neck claim,[39] where he said in 1999 that he had not played any sport for two years, and in February 2000 that he did not do any sporting activities.
[39] Exhibits 3 and 4
63 The plaintiff did give evidence that he resumed golf and played with members of his family prior to August 2002, and further that he had purchased a boat after 2000 and resumed fishing.
64 Ms Magee further asked the plaintiff whether he had any other recreational activities which he enjoyed at the present time. The plaintiff answered that he did not, but in further cross-examination the plaintiff disclosed that he had purchased a Harley-Davidson motorcycle some two months ago and had ridden it on a number of occasions. He accepted he planned to do future rides.
65 I was unimpressed by this evidence of the plaintiff. I am of the view that the plaintiff was attempting to promote the effect of injury upon his recreational activities when it suited him, depending upon the injury which he was describing. I further found his failure to disclose his motor-riding activity as an active concealment.
66 Video film of the plaintiff taken in April, June and August 2009 was shown, but in my view did not in any way impact upon the plaintiff’s credit. The film was quite innocuous.
67 On the other hand, I am impressed by the efforts of the plaintiff to obtain and maintain employment, notwithstanding his back injury. He retrained as a meat inspector in 2007, and retrained further to undertaken workplace training, and he accepted that he was able to do this work.
68 The assessment of credit is a balancing exercise. At the end of the day, while I have reservations about the plaintiff’s credit, the cross-examination in relation to his recreational activities, does not, in my view, dictate that I should not accept his evidence. I do accept the plaintiff’s evidence that he has suffered ongoing pain since the August 2002 incident. That is supported by histories to the various doctors over the years, particularly Dr Jensen. I do, however, have reservations about the extent to which that injury has affected the plaintiff, particularly in relation to sporting and recreational activities.
Submissions by the Defendant
69 Ms Magee submitted that the plaintiff had confined his case to injury arising from the incident of August 2002. That was the basis of the evidence from his affidavit, and it was that incident which was the subject of a claim for compensation under the Act.[40]
[40] DCB 17-18
70 In relation to that incident, Ms Magee submitted that it was no more than one of many small aggravations of the plaintiff’s underlying back condition from which he recovered. She submitted the plaintiff could not aggregate the various incidents, including those of June 2003, and May and December 2006. She referred to Altona Bus Lines and Anor v Lococo.[41]
[41] [2002] VSCA 159, at paragraph 7
71 She submitted that the plaintiff was able to continue in his full-time employment with little time off, including spending many hours in a car, driving. She submitted I should not accept the plaintiff’s claim that his various recreational and sporting activities had been affected by his injury, as he had ceased undertaking these before August 2002.
72 In those circumstances, the consequences to the plaintiff arising out of respect of the incident did not reach the “very considerable” level.
Submissions of the Plaintiff
73 Mr Mighell submitted that the ministerial directions require that in addition to the Form A, prescribed form of application, required by s.134AB(4), the plaintiff was required to provide a draft Statement of Claim. This document[42] described the plaintiff’s claim, in paragraphs 4 and 5, as being an injury arising out of the plaintiff’s employment due to various heavy duties carried out, and including work performed on 21 August 2002. Thus, said Mr Mighell, the plaintiff’s claim was not restricted to the incident of August 2002, but rather a claim in respect of injury arising throughout the plaintiff’s employment with the defendant from late 2001 until 2007.
[42] PCB 25-26
74 Mr Mighell submitted that while the plaintiff did have pre-existing lower-back problems, they were minor only, and allowed him to pass a pre-employment medical examination and undertake heavy work until the incident of August 2002. Thereafter there was a dramatic change, including that the plaintiff’s work duties were restricted, in that he drove the forklift rather than continuously undertook heavy lifting, commenced physio and osteopathic treatment on a regular basis, and in particular had extensive treatment from Dr Jensen and Dr Verrills in the nature of spinal injections and neurotomies.
75 He noted there were significant changes on radiology, and the plaintiff had taken extensive medication over the years, and was currently taking pain- relieving medication.
76 He submitted that there had been a dramatic effect upon the plaintiff’s work capacity and his ability to enjoy a range of activities.
Conclusions
77 The first matter to determine is whether the plaintiff’s claim for injury, in respect of which leave is sought to bring common law proceedings, is restricted to injury arising from the incident of August 2002, or throughout the plaintiff’s employment with the defendant. It is clear the plaintiff’s affidavit focuses on the incident of August 2002 as the cause of his problems. That is consistent, in general terms, with the histories provided to most of the practitioners, although he has described the various incidents and the fluctuating nature of his back condition.
78 The plaintiff’s Originating Motion of 1 October 2008 described the relief or remedy sought as follows:
“The plaintiff seeks leave to bring proceedings for personal injuries arising out of or in the course of, or due to the nature of, employment subsequent to 2 October 1999 and on or about 22 August 2002 at or near Bacchus Marsh Road, Corio, in the State of Victoria, in accordance with s.134AB of the Accident Compensation Act 1985.”
79 Given the Originating Motion is the pleading which brings the proceeding to the Court, it is my view that the plaintiff is entitled to cast his claim in accordance with that pleading. It is clear that the affidavit lodged in support of the application is concerned essentially with the August 2002 incident, but that is essentially a matter of evidence, rather than something which confines the plaintiff’s claim. While s.134AB of the Act does, in sub-ss.(1) to (4), refer to “an injury”, that is not to say that an injury may have been caused by work over a period of time. That is clear from applications such as repetitive strains which occur on production lines.
80 In my view, the plaintiff’s claim should not be restricted only to the August 2002 incident, although it is clear from the affidavit material and the evidence given by the plaintiff that that was the focus of the source of his injury.
81 As stated, I am satisfied the plaintiff suffered an injury to his lower spine in the August 2002 incident. That was in the nature of an injury to the facet joints of the lumbar spine, with some effect upon the L5-S1 disc. Although the pathology shown on the MRI scans is not substantial, the plaintiff does have bulging and an annular tear at L4-5. I am satisfied that the plaintiff has suffered the referred pain into his right leg, which has become more significant since December 2006. There is no explanation for this pain on radiology, but there are objective neurological signs found both by Dr Jensen and Mr Elsner. I am satisfied there is some radicular pain into the right leg, and that this is a significant aspect of the plaintiff’s presentation. I am satisfied from the evidence of Dr Jensen that the episode of December was significantly contributed to by the original incident of August 2002.
82 As Ms Magee states, the plaintiff is able to engage in full-time employment without significant difficulty, including driving long distances. I am not satisfied that there has been any significant effect upon the plaintiff’s recreational and sporting activities, in the nature of squash, netball, golf, and fishing, given the evidence that he gave in respect of his earlier neck claim.
83 However, the plaintiff does take significant medication on a regular basis, and, in particular, has had a very extensive regime of treatment for his lower back, being the facet joint injections and neurotomies. It is proposed by Dr Verrills that these neurotomies continue, although the plaintiff is obtaining less relief from them.
84 The real issue, in my view, is whether the consequences to the plaintiff of the injury to his lower back over the course of his employment, and in particular in August 2002, achieves the “very considerable” level. On balance, I have determined that the consequences do attain that level. I accept the plaintiff has ongoing pain in his back, and referred pain into the leg. I accept that this has meant that any prospect of resuming his previous heavy duties is lost to him. While he is able to cope with his current employment, he requires considerable medication and ongoing treatment. There is no prospect of relief from his symptoms, and all doctors appear uniform in the view that they are likely to persist into the future. I accept his sleep is affected as is his relationship with his wife.
85 In these circumstances, I propose to grant leave to the plaintiff to issue proceedings for injuries suffered in the course of his employment, and will make further orders as to costs.
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