Wright v Ristovski Group Pty Ltd
[2012] VCC 1814
•28 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03877
| Wayne Wright | Plaintiff |
| v | |
| Ristovski Group Pty Ltd | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1, 2 & 5 November 2012 | |
DATE OF JUDGMENT: | 28 November 2012 | |
CASE MAY BE CITED AS: | Wright v Ristovski Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1814 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 (Vic) – s134AB(16)(b) – injury to the lumbar spine – aggravation – causation - pain and suffering - loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Ms S Gold | Advice Line Injury Lawyers |
| For the Defendant | Mr P Montgomery | Minter Ellison |
HER HONOUR:
1 The 44 year-old plaintiff seeks leave under s134AB of the Accident Compensation Act 1985 to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of an injury to the lumbar spine sustained on 18 February 2002 during the course of his employment with the defendant as a truck driver when he twisted and lifted his truck’s bonnet from the side of the vehicle (“the subject incident”).
2 After the subject incident he saw a doctor and received some chiropractic treatment but returned to work about a month later. He made a claim for compensation on 2 August 2002 in respect of a further exacerbation at work on that day. His claim was accepted and he received weekly payments in respect of that claim. The claim form states that the lower back pain experienced on 2 August 2012 “related from previous injury”, that is, the subject incident, when he “tilted bonnet on truck”.[1]
[1]See the Worker’s Claim Form at Defendant’s Court Book (DCB) p55.
3 The plaintiff says that as a result of the injury to the lower back suffered in the subject incident, he has suffered a permanent impairment of the function of the lower spine. He says he has suffered ongoing lumbar back pain and had to find successively lighter forms of employment from which he took substantial time off each year due to his back pain. He managed to work until April 2010 when he realised he could no longer work because of his back injury. He says that as at the date of the hearing, he is permanently incapacitated for all employment. He has been taking Endone and Valium daily for his back and right leg pain. His sleep is disturbed by pain. He finds it difficult to walk or drive more than short distances. He limps and using a walking stick to assist with stability. On occasion his right leg gives way. He is limited in the housework he can do, and has been unable to get back to trail bike riding or water-skiing. He can no longer service his own car. His recent relationship with his girlfriend only lasted a month partly because back pain made physical intimacy “very difficult and painful”.[2]
[2]See plaintiff’s second Affidavit at Plaintiff’s Court Book (PCB) p37.
4 The defendant concedes that, as at the date of the hearing, the plaintiff suffers from a permanent impairment of the function of the lumbar spine and is permanently incapacitated for all employment. However, the defendant says that in the light of the plaintiff’s pre-existing degenerative changes in the lumbar spine which were symptomatic, included leg pain, and required chiropractic treatment and resulted in time off work in 2000, and in the light of the aggravation which occurred at work on 2 August 2002 (which prompted the claim for compensation), as well as subsequent aggravations suffered on 3 January 2003, 4 July 2005, 27 July 2009 and 26 February 2010, the Court should not be satisfied that the subject incident was anything more than a temporary aggravation of pre-existing longstanding degenerative changes in the lumbar spine which had been symptomatic in 2000. The defendant submits that the Court should find that the temporary aggravation resolved within a month and that the longstanding degenerative changes were responsible for the subsequent aggravations, his current permanent lumbar spine impairment as well as his inability to work after April 2010. The defendant relies on a number of matters in this regard, including that:
· The plaintiff had no investigations and only a few weeks chiropractic treatment before returning to work a few weeks after the subject incident;
· The subsequent incident at work on 2 August 2002 was a substantial aggravation of the back injury, and led the plaintiff to see solicitors, to lodge a claim for compensation, and to receive about 150 days of weekly payments; that incident also prompted nearly 80 sessions of chiropractic treatment;
· Between March 2003 and April 2008 he had no chiropractic treatment and only resumed regular treatment in September 2010;
· He did not complain of back pain to his general practitioner, Dr Ng, or other doctors, between March 2003 and September 2008, nor was he receiving prescriptions for medication for his back during that time; nor was he referred to any specialists until August 2009;
· He continued to work, with four different employers, from March 2003 to April 2010, and did not cease work permanently until some eight years after the February 18, 2002 incident; and
· He did not required general or specialist medical treatment or chiropractic treatment, until 31 July 2009;
· The treating neurosurgeon, Mr Nicholas Maartens, received a very limited history from the plaintiff concerning the various incidents involving his back and was not told of the 2000 incident;
· There was no documentary evidence supporting the plaintiff’s claim that he had taken 8 to 10 weeks off work per year since 2002 due to his back condition; and
·The plaintiff was not a reliable historian.
5 The defendant relies on the medico-legal opinions of Mr Klug, Mr Simm and Mr Brownbill and submits that the Court should prefer their conclusions to those of Mr Shannon, Mr King and Mr Maartens.
The hearing
6 The plaintiff and his treating Neurosurgeon, Mr Maartens, gave evidence and were cross-examined. There were no other witnesses. The parties tendered court books and provided some additional documents to assist me: chronologies; a list of medications prescribed since the subject incident; a chronology of injuries and complaints; computerised clinical records from Craigieburn Medical Centre; and some handwritten clinical records.
The plaintiff’s employment, injuries and medical treatment
7 The plaintiff was born on 23 July 1968 and completed Year 8 at Technical College in 1981. In 1982 he worked making staircases and in 1983 he worked for a few months delivering furniture. Between 1984 and 1989 he worked as an interstate truck driver for various employers, including John Fiddies Excavation, from 1989 to early 2001. On 28 February 2000, he suffered low back pain and left leg pain and received chiropractic treatment until 31 March 2000, when he went back to work.[3]
[3]PCB p55.
8 On 26 March 2001, the plaintiff commenced work with the defendant.
9 On 18 February 2002, he was at work lifting the bonnet of his truck in order to check the oil when he felt a strong pain in his back which caused him to collapse to the ground. He was unable to get up for some time and had to be assisted to a chair.[4] He attended a doctor and then saw his chiropractor, Dr Jonathan Richardson, on seven occasions until 7 March 2002.
[4]PCB p26.
10 On 2 August 2002, the plaintiff suffered an aggravation of lower back pain while driving his truck at work when he twisted the wrong way while getting in or out of the truck. He saw a doctor at Craigieburn Medical Centre and was sent by Dr Sonnie Ng for CT of the lumbar spine on 30 August 2002.[5] He lodged a claim for compensation, which was accepted.
[5]PCB p39.
11 CT scan of the lumbar spine on 30 August 2002 was reported as revealing no disc herniation or thecal or nerve root compression at the L3-4, L4-5, or L5-S1 levels.[6]
[6]PCB p107.
12 He received weekly payments for the period 16 August to 7 October 2002, and returned to light duties briefly. Weekly payments resumed for the period 21 October to 29 October 2002. He returned to light duties.
13 On 3 January 2003 he aggravated his back while driving on rough ground.[7]
[7]PCB p58.
14 On 11 March 2003 he ceased employment with the defendant. Between 2003 and 2005 he worked as a truck driver for a number of employers including: L& J Cartage, L& R Cartage, and Patlin Transport.
15 On 4 July 2005 he collapsed on the floor at home without warning and complained to his physiotherapist that his low back was being aggravated when depressing the clutch on the truck at work.[8]
[8]PCB p59.
16 Between 2005 and 2009 the plaintiff worked for IPV Transport as a truck driver. The company went into liquidation. In March 2009 the plaintiff commenced work with Zonta group as a truck driver.
17 He had no chiropractic treatment until April 2009 when he had two sessions for back pain after suffering an aggravation of his low back while filling his truck with diesel at work.
18 On 27 July 2009 he saw Dr Ng in relation to a sudden onset of back pain whilst performing welding duties at home. Dr Ng referred him for CT scan of the lumbar spine which reported the following findings:
…At the L4/5 level there is a very mild posterior disc bulge not causing any significant thecal/neural compression.
At the L5/S1 level there is a left paracentral disc bulge indenting the thecal sac and the left descending S1 nerve.[9]
[9]PCB p108.
19 In August 2009 Dr Ng referred the plaintiff to a neurosurgeon, Mr Nicholas Maartens, who arranged for the plaintiff to undergo x-rays and an MRI scan of the lumbar spine on 24 September 2009. The x-ray was reported as normal.[10] The MRI scan was reported as showing minor disc bulges at L1/2, L2/3 and L3/4 with no canal or foraminal stenosis.[11] The remaining levels were reported as follows:
L4/5: mild circumferential disc bulge with central annular fissure and left foraminal prominence. Mild canal stenosis without neural compression. No foraminal stenosis.
L5/S1: minor broad-based posterior disc bulge. No canal or foraminal stenosis. Conjoined left L5?S1 nerve root incidentally noted with contact but no compression of these nerve roots.
Conclusion: Multilevel disc degeneration without neural compressive abnormality. Incidental left L5/S1 conjoined nerve root.
[10]PCB p109.
[11]PCB p110.
20 On 26 February 2010 the plaintiff suffered a further aggravation of low back pain with referred pain into both legs after working on his boat at home. He was admitted to Northern Hospital for three to four days.
21 In March 2010 Mr Maartens referred the plaintiff to Dr Peter Courtney for pain management. Around this time, the plaintiff ceased work with Zonta, and his employment was terminated in August 2010. In April 2010 Dr Courtney performed a Ketamine infusion. The plaintiff resumed chiropractic treatment in September 2010. In October 2010 the plaintiff underwent a nerve block procedure to the lower back.
Permanent serious impairment of the function of the lumbar spine
22 In the light of the defendant’s concession concerning the extent of the plaintiff’s lumbar spine impairment as at the date of the hearing, it is unnecessary to traverse in detail the lay (from the plaintiff’s friends and neighbour)[12] and expert evidence concerning the plaintiff’s condition.
[12]PCB pp38(a) -38(i).
Causation
Plaintiff’s evidence
23 In his first affidavit, sworn 22 March 2011, the plaintiff stated that although he attended a chiropractor on a few occasions before February 2002 for treatment of aches and pains in his back, he did not recall needing significant time off work.[13] After the subject incident, he continued to attend Dr Ng and his chiropractor, Dr Richardson “on a regular basis in the following years as I tried to stay at work, hoping the pain would go away”.[14]
[13]PCB p24.
[14]PCB p26.
24 At paragraph 10 of his affidavit, he stated:
I attempted to stay at work, first with Sunshine Garden Supplies and then subsequently in other truck driving jobs. However, I continued to experience strong pain in my back and particularly in my right leg and I needed about 8-10 weeks off work each year as a result of the pain, in addition to taking days and half days off here and there and trying to limit my duties as best I could. Dr Ng prescribed strong analgesic and anti-inflammatory medications in an attempt to help me stay at work and I continued to regularly attend upon Dr Richardson for chiropractic treatments, again in an attempt to ease the pain in my back and right leg enough so I could stay at work.
25 At paragraph 18 of his affidavit, the plaintiff stated that he was off work for some time after the subject incident. He described experiencing “a particularly bad flare-up of the pain” in August 2002 and being off work after that incident until around October 2002. After that he returned to work on light duties but was then asked by his employer to return to driving trucks. His employment at Sunshine Garden Supplies was terminated a few months later.
26 He stated that his employment at L&J Cartage was terminated after about 10 or 11 months because he was taking too much time off work as a result of his back pain and right leg pain.[15]
[15]PCB p29.
27 He stated that when he worked for IPV Transport he required “a lot of time off each year” due to his back and right leg pain, but his employer had been understanding and had accommodated those absences. However, “ultimately they took the view that because of my back and right leg injuries I could not perform the role properly and my employment was terminated.[16]
[16]PCB p29.
28 He stated that his next employer, Zonta, in early 2010, was aware of his back injury and made efforts to accommodate him by installing a new truck seat for him.[17] He still required time off work and reduced hours due to back and right leg pain. His right leg pain worsened significantly after the Ketamine infusion in April 2010 and he ceased working in around April or May 2010.
[17]Ibid.
29 In cross-examination, the plaintiff said he did not recall exactly how much time he had off work after the subject incident, but that he thought it had been for about a year. He agreed that after the August 2002 aggravation he saw Dr Richardson about 67 times. He said that agreed that he received weekly payments for 150 days in 2002 and that he returned to work. He agreed that he did not see the chiropractor for two years after July 2003. He agreed that he was in near constant employment between March 2003 and December 2010. He was asked why there was no documentary evidence of sick leave or certificates of incapacity concerning his back. He said that he received no sick pay for the time off work he took each year but insisted that he did take eight to ten weeks off each year due to his back pain. The plaintiff denied that his work capacity was not affected at all until the aggravation experienced in February 2010 and said that during that time he always had a problem with the back but just kept on working. He said that the absence of documentation or compensation payments during the period 2002 to 2009 was due to the fact that he took the time off “on my own accord”.[18] Prior to July 2009 he said he was unable to work on his own car or those of his friends because of his back pain.
[18]Transcript p20, line 73.
30 In re-examination the plaintiff said that the note from the Northern Hospital to the effect that he has about 10 episodes per year of back pain accurately reflected what he told them at the time. He insisted that at no time since February 2002 had his back recovered. He said that when he worked at IPV he got on well with the boss and continued to be paid even when he took time off because of back pain. However, ultimately he lost his job there because of the time off work he was taking. He said that he worked at L&J as a casual permanent and therefore did not get annual leave or sick pay; when he did not work he was not paid. He said that he worked for Patlin Transport on a casual basis for up to 6 months and did take some time off due to his back problem but was not paid for that time off. He said that he lost his most recent job with Zonta when he started taking a walking stick to work and was told he could not take it into the truck he was driving. He insisted that he had some time off for his back pain while he was working there.
Medical Evidence
31 Mr Geoffrey Klug, neurosurgeon, reported to the defendant’s insurer on 2 December 2002 receiving a history of injury on 18 February 2002, a report to his employer, an immediate cessation of work and one week off work during and following which he had chiropractic treatment and was able to return to his normal employment, albeit suffering “an occasional twinge of pain in his back”.[19] He also received a history of a substantial aggravation on 2 August 2002, occasioning some months off work and a return to work on light duties in November 2002 involving truck driving but not bending or lifting.
[19]DCB pp11 – 12.
32 On examination, Mr Klug found no neurological abnormalities. Mr Klug felt that the plaintiff suffered a musculo-ligamentous injury of his low back in February 2002 but noted that it was not possible to exclude an injury involving one or more of the lumbar intervertebral discs. He felt that after the August 2002 incident the plaintiff had various forms of treatment that led to some improvement but his condition had not completely resolved. He felt that the findings were consistent with the plaintiff’s “perceived level of disability”. He felt that provided some care was taken the plaintiff should be able to return to work but should not perform work requiring repeated bending and lifting.
33 Mr Rodney Simm, orthopaedic surgeon, provided a report dated 30 January 2003 to the defendant’s insurer.[20] Mr Simm took a history of a short period off work after the February 2002 injury, and of an “acute recurrence of low back pain” on 2 August 2002. The plaintiff complained of constant low back pain with some intermittent radiation into the right leg and some pins and needles over the right foot. Mr Simm found that the plaintiff presented “as a straightforward person who seemed concerned by his symptoms”.[21]
[20]DCB p16.
[21]DCB p17.
34
Mr Simm felt that in clinical terms the plaintiff suffered from pre-existing early intervertebral disc degeneration in the lumbar spine which was rendered acutely symptomatic in February 2002 after which the symptoms subsided but returned spontaneously in August 2002. Mr Simm concluded that a
“lifting strain at work in February of 2002 and the normal work duties performed in August of 2002 aggravated underlying disc pathology”.
35 Dr Ng reported on 7 December 2009 that the plaintiff saw him on 21 August 2002 complaining of low back pain since February 2002 when he injured his back while lifting the bonnet of a truck.[22] He noted:
Over the next seven years, he continued working as a truck driver and only came in for pain relief with tablets and continued to receive treatment with his chiropractic (sic) from time to time when his back gave him troubles. He suffers from relapse of back pains with collapse on and off and misses work about 6 to 8 weeks in a year with such incidences. He continues to work full time despite the injury.[23]
[22]PCB p39.
[23]PCB p39.
36 On 22 September 2009, Mr Maartens wrote to Dr Ng noting that the plaintiff’s presenting complaint of was of lower back and right leg pain “with collapsing”.[24] He received a history that the plaintiff was well until the subject incident of 18 February 2002 when he collapsed with sudden severe lower back pain and was unable to move for about an hour. He noted a history of the plaintiff missing work “approximately 8 -10 weeks a year because of lower back pain”.[25]
[24]PCB p45.
[25]PCB p45.
37 On 21 October 2009 Mr Maartens wrote to Dr Ng noting that the MRI had shown “loss of lumbar lordosis with disc degeneration at the lower four lumbar segments with a pronounced annular tear at L4/5 which is probably responsible for most of his symptoms”.[26] There was no neural compression. He noted that the symptoms had been present for about nine years and it was likely that the plaintiff would end up facing a choice between conservative treatment and a fusion. The difficulty with a fusion was determining which levels to fuse. He recommended a further three months of conservative treatment. He also referred the plaintiff for physiotherapy.
[26]PCB p46.
38 At the hearing, Mr Maartens agreed that he did not receive a history from the plaintiff of back pain in 2000, but said that as he was seeing him for treatment purposes he did not ask for many details. He said he was more interested in the trend over eight years, the progression of pain and whether it was relapsing or not, and the MRI scan. He did not get a history of an incident in August 2002 or of the 77 sessions of chiropractic the plaintiff had after that incident, nor of the compensation claim relating to it, but agreed that these were relevant matters. He said that his understanding of the plaintiff’s history was that he had a chronic back problem from 2002 which caused him to miss work regularly over the years since then.
39 Mr Maartens agreed that when he saw the plaintiff in May 2010 he would have noted any mention of a significant incident requiring admission to hospital. He was cross-examined about the radiological investigations. He said that one could have minor radiological findings accompanied by severe pain, and that major radiological changes could be present in a person without the experience of pain. He said that neural compression did not have to be present for a person to suffer from referred pain down the leg, and a person could suffer from referred pain down the leg without any neurological deficit.
40 Mr Maartens was asked whether, in the light of the incidents which occurred in February 2002, August 2002, August 2009 and February 2010, it was more likely that the plaintiff’s symptoms relate to the progression of age-related degenerative changes rather than the subject incident. Mr Maartens said that on the information given to him by the plaintiff, the plaintiff developed a major back problem after the February 2002 incident and had remained symptomatic since that time. His symptoms followed a relapsing course, but worsened over the years. Mr Maartens said that this relapsing course is quite common. He felt that the plaintiff was suffering from an organic pain syndrome. He disagreed with Mr Klug’s assessment that the plaintiff’s condition improved after the subject incident, as this was not the plaintiff’s view. Mr Maartens said that a return to work did not mean that the plaintiff’s condition improved, as a person could work and still have pain at work. He said that the plaintiff told him that he had been symptomatic since February 2002 and Mr Maartens said his condition may have been exacerbated by later incidents.
41 There were a number of reports from the plaintiff’s chiropractor, Dr Richardson. In his first report dated 28 September 2010 he noted having treated the plaintiff for a few weeks for an episode of low back pain in February 2000, after which the plaintiff “deemed himself fully recovered”.[27] Dr Richardson also treated the plaintiff after the subject incident and took a history of “immediate and intense” back pain after an awkward flexion and rotation of the lumbar spine while lifting the bonnet of the truck. According to Dr Richardson, the plaintiff said that the pain “was of a crippling nature, making his legs ‘go to jelly’, referring to his left and right groins and medial aspects of his thighs. The pain had been constant since the injury. The pain was aggravated by weight bearing and movement.
[27]PCB p55.
42 Kevin King, orthopaedic surgeon, reported on 12 May 2011 reported receiving a history of no prior back problems apart from a minor attack of back pain in 1996.[28] The plaintiff reported that in the subject incident he suffered an “abrupt onset of very severe pain in the low back region” which was so severe that he collapsed to the ground and lay there for 15 minutes until another driver helped him to his feet. Mr King recorded that the plaintiff took nearly a year off work and had conservative treatment. Mr King noted that the plaintiff appeared to be in considerable pain “and is agitated and distracted by backache and sciatica.”[29] Mr King’s overall impression was that “he was strongly motivated to work, was off duty for about 11 months initially, but then struggled on for the next five to six years with increasing difficulty, with a variety of employers, on each occasion either resigning or being sacked as he was losing days intermittently from work due to flare-ups of back pain”.[30]
[28]PCB p99.
[29]PCB p102.
[30]PCB p103.
43 Mr King concluded that the plaintiff suffered an acute injury to one of more of his lumbar discs and associated ligamentous structures in February 2002 which was “superimposed upon mild, pre-existing but symptomless degenerative changes in his spine consistent with his age and heavy occupation”.[31]
[31]PCB p104.
44 Mr Michael Shannon reported on 15 July 2011 receiving a history that the plaintiff was off work for about a year after the subject incident and had been treated over the years with chiropractic and painkillers.[32] He noted that the plaintiff was losing about 8-10 weeks from work every year and lost a number of jobs because of this. Mr Shannon diagnosed multi-level disc degeneration, particularly affecting the lowest two lumbar discs, but found no definite evidence of nerve root compression. Mr Shannon felt that the condition was work related in that the condition “has persistent following an original work related injury”. He felt that the pain syndrome was secondary to the plaintiff’s work injury, and that the plaintiff was permanently incapacitated for all employment.
[32]PCB p106a.
45 By letter dated 17 October 2012, from the defendant’s solicitors, Mr Shannon was provided with further information concerning the incidents or aggravations of pain in February 2000, August 2002, April and September 2008, July 2009 and February 2010; the plaintiff’s time off work as a result of the various incidents; and the attendances over the years for medical and chiropractic treatment in relation to the lower back.[33] The letter invited him to answer a number of questions in the light of the further information provided.
[33]PCB p106j.
46 Mr Shannon provided a report dated 22 October 2012 in answer to those questions. Mr Shannon commented that the flare-up of pain in September 2008 on getting out of bed was “not inconsistent with the history provided to me that he was getting recurrent episodes of back pain precipitated by simple tasks such as sneezing, opening the car door or even toileting.”
47 Mr Shannon noted his observations about the information given:
In general, although there may have been some embellishment and exaggeration of the frequency of treatment and attendances, there is a fairly consistent pattern of recurrent back pain which has never totally subsided since the bonnet lifting incident which most examiners at the time regarded as the significant event, but was subsequently aggravated by driving in August 2002.
I remain of the view that if an event precipitates a pattern of recurrent pain and episodes of lower limb pain, then the initiating event which would appear to be the event in February 2002 remains a significant contributing factor to the subsequent events, particularly as it does not appear to be documented that there was any other specific injury.[34]
[34]PCB p106(h).
48 Mr Shannon considered that, in the light of subsequent events, the incident of February 2002 “was not a temporary aggravation, but that it was the incident which significantly rendered his back symptomatic, although there was not a lot of time from work following the initial incident”.[35]
[35]Ibid.
49 Mr Shannon felt that the pathology identified on the MRI scan could not be attributed to any particular event or incident. He repeated his conclusion that notwithstanding other aggravations including that suffered in August 2002, he remained of the view that the original injury in February 2002 was contributing to the plaintiff’s current pathology and incapacity.
Legal Principles
50 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[36] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[37]
[36]Fleming v Hutchinson (1991) 66 ALJR 211.
[37]Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172, [58].
51 The whole of the evidence before the court should be considered, not just the medical evidence.[38]
[38]Ibid [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, [170].
52 In cases involving aggravation of a pre-existing injury or condition there must be an analysis of the extent of the impairment of the relevant body function before and after the injury. In addition, the aggravation of the pre-existing injury must itself amount to a “serious long-term impairment or loss of a body function”.[39]
[39]Petkovski v Galletti [1994] 1 VR 436, 444; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz [2012] VSCA 60 (4 April 2012).
53 Where a plaintiff claiming to have suffered serious injury consequences in terms of both pain and suffering and loss of earning capacity satisfies the loss of earning capacity requirements of s 134AB, that plaintiff is entitled to claim damages for both loss of earning capacity and pain and suffering. It is therefore not necessary for the Court in those circumstances to determine whether the plaintiff has established the pain and suffering limb of the application.[40]
[40]Advanced Wire & Cable Pty Ltdand Victorian WorkCover Authority [2009] VSCA 170, [63]; Aluthgamage v Select Care Personnel Pty Ltd [2012] VSCA 111.
Findings and reasons
54 I found the plaintiff to be an impressive, straightforward witness who conceded that his impression that he had had considerable time off work after the subject incident was in fact incorrect. He maintained his claim to have missed between eight to ten weeks of work each year due to back pain. Much of that time was taken on his own time when he was working as a casual employee. When he was working with a sympathetic employer from 2005 to 2009, he continued to be paid even when he took time off. He said that on a number of occasions his employment was terminated because of his poor attendance due to his back condition. His evidence in this regard is uncontradicted and I accept it. I note that it is supported by the treating chiropractor’s report where he notes that the plaintiff had complained of constant back pain since the subject incident.[41]
[41]PCB p55.
55 I accept that not all examining or treating doctors recorded a full or correct history from the plaintiff. In particular, it is clear that many doctors did not have the history of the 2000 incident. However, all of them had the history of the subject incident and most of them were told of the August 2002 aggravation. Mr Shannon had the benefit of the full history. The experts who saw him close to the time of the subject incident, Mr Klug and Mr Simm, agreed with later treating (Mr Maartens) and examining experts (Mr Brownbill, Mr King and Mr Shannon).
56 The weight of the medical evidence was to the effect, and I therefore find, that in the subject incident, in compensable circumstances, the plaintiff suffered an aggravation of pre-existing but largely (apart from an episode in 2000) asymptomatic degenerative changes to multiple levels of the lumbar spine.
57 Mr Maartens and Dr Richardson noted that the plaintiff had suffered ongoing back pain since the subject incident. Dr Richardson had treated the plaintiff briefly in 2000 and noted that he returned to work after a few days and reported being fully recovered by 31 March 2000. I note that there was no treatment at all for the plaintiff’s back between that time and the subject incident. Mr Shannon, who had the full history of incidents in 2000 and of later exacerbations, was emphatic in his conclusion that the subject incident significantly rendered his back symptomatic and, as at 22 October 2012, was continuing to contribute to the plaintiff’s current pathology and incapacity. I note that he reached these conclusions notwithstanding his comments as to the presence of some non-organic features to the plaintiff’s presentation.
58 I accept the evidence of Mr Shannon, which I consider to be consistent with the opinion of Mr Maartens and with the plaintiff’s own, uncontradicted evidence. The plaintiff’s evidence is supported by the answers given on the compensation claim form, citing ongoing back pain from early 2002 requiring three weeks off work at the time and then over the subsequent years occasioning 8-10 weeks off work per year as well as occasional exacerbations followed by periods of chiropractic treatment.
59 That the plaintiff suffered a later exacerbation (that of August 2002) which produced a more substantial period off work than the subject incident, or that he remained capable of working for seven years or so after the subject incident are not determinative against the plaintiff in this application. In this case, I am satisfied on the evidence that the subject incident caused the largely asymptomatic pre-existing degenerative changes of the lumbar spine to become symptomatic, and was a cause of those symptoms becoming chronic in the context of continuing employment. I am also satisfied that by August 2010 the subject incident had contributed to his permanent incapacity for any employment.
60 For the above reasons, I am satisfied on the evidence before me that, as at the date of the hearing, the injury caused by the subject incident has resulted in a permanent impairment of the function of the plaintiff’s lumbar spine and that one of the consequences of that permanent impairment is the plaintiff’s permanent incapacity for employment. It follows that I am satisfied that the loss of earning capacity consequences of his lumbar spine impairment are more than considerable when compared with other cases in the range of permanent impairments of the function of the lumbar spine, and that the plaintiff has established a permanent loss of earning capacity of more than 40%.
Pain and suffering
61 In these circumstances, it is unnecessary to determine the pain and suffering limb of the application. However, out of an abundance of caution, I indicate that I accept the plaintiff’s evidence concerning his pain and restrictions. He has had unsuccessful treatment with Ketamine infusion and a nerve block procedure. He has reduced all his activities in order to manage his pain but is still never pain free. His back pain is exacerbated by all activities. He has continuing numbness, pins and needles and sharp pains in his right leg. His right leg frequently gives way on weight bearing, and he now uses a cane all the time, even in the shower. He can only walk short distances. Sometimes his pain is so severe he cannot get out of bed. His sleep is affected and he wakes in pain about 5 or 6 times each night He can only drive short distances and cannot do the cooking or cleaning. One of the reasons his marriage broke up was that physical intimacy caused him pain. The same problem arose during his recent relationship with his girlfriend, which only lasted one month. Prior to his back injury he enjoyed bike-riding, camping, fishing, boating, waterskiing, playing golf and riding a trail bike. He used to maintain his own car. He no longer does these activities, and sold his trail bike in 2003.
62 He takes Tramadol twice per day, and Valium when required. He alternates between taking Tramadon and Endone. He sees Dr Ng twice per month. He has a disabled parking sticker. His evidence was that he has had a problem with his back since the subject incident, but just kept working .
63 I consider that the plaintiff has been very stoic, attempting notwithstanding his chronic and worsening lumbar symptoms, to remain in full time employment as a truck driver, to the point of attempting to use his walking stick to assist him in and out of the truck, at which point his last employer indicated that he was not capable of working in that capacity. The cessation of employment has not resulted in the abatement of his symptoms. He suffers constant pain, takes substantial prescription analgesia, can no longer work, and is limited in all his domestic and recreational activities. I consider that the pain and suffering consequences of his lumbar spine impairment are more than considerable when compared with other cases in the range of long-term impairments of a body function.
Conclusion
64 Leave is granted to the plaintiff to issue proceedings for the recovery of damages for loss of earning capacity and pain and suffering in respect of the injury to the lumbar spine suffered on 18 February 2002 during the course of his employment with the defendant. I reserve the question of costs.
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