Yates v Victoria Police
[2016] VCC 88
•28 January 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
COMMON LAW DIVISION
SERIOUS INJURY
Case No. CI-15-03481
| YATES | Plaintiff |
| v | |
| VICTORIA POLICE | Defendant |
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 January 2016 | |
DATE OF JUDGMENT: | 28 January 2016 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2016] VCC 88 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | |
| For the Defendant | Mr D Masel SC with Mr S D Martin |
HIS HONOUR:
1 In this proceeding the plaintiff seeks leave to bring a proceeding for the recovery of damages for the pain and suffering consequences only of an injury to his lumbar spine. Leave is sought pursuant to s134AB of the Act.
2 The legal principles applicable to such applications are well known and were not in dispute here.[1]
3 Discussions with counsel at the commencement of the case revealed that there were two issues to be determined. The first was whether the condition of the plaintiff’s lumbar spine relied upon was compensable under the Act. Second, if it was, did the consequences satisfy the “very considerable” test.[2]
[2]Ibid.
4 It is convenient to set out matters which were not in dispute. It was specifically conceded by senior counsel for the defendant that, on the evidence, the plaintiff’s present symptoms of lumbar back pain and referred pain into the left leg probably arose from the disc pathology (identified in the more recent radiological studies) at the L5-S1 level. They are described by the radiologist who interpreted the MRI of 24 July 2013 – PCB 36 – in these terms “disc degeneration at L5/S1 consists of loss of disc hydration without disc space narrowing, a small broad-based posterior disc bulge and annular fissuring of the posterior disc fibres. No central canal stenosis or foraminal or nerve root compression.” A further MRI examination on 27 March 2015 – PCB 36 – is reported as showing “L5/S1 disc desiccation associated with an annular fissure. Minimal disc bulging.”
5 Further, it was not in dispute that the plaintiff suffers, and had suffered in an unremitting way since first reporting the injury more than 10 years ago, from low back pain which has interfered with a range of social recreational and domestic activities, his sleeping, his sex life, and aspects of his work as a police officer. These are set out in his two affidavits in some detail and were not challenged in cross-examination. In June 2009 he suffered knee injury in the course of his employment and whilst his knee was troublesome the chiropractor records that chiropractic treatment was less effective. Moreover, none of the medical commentators in the case has cast any significant doubt on the accuracy of his reported history of symptoms and complaints.
6 The plaintiff gave evidence before me,[3] was cross-examined (with, if I might say so, commendable brevity) and I formed the view that he was giving a truthful and accurate, though at times somewhat rambling, account of his back problems.
[3]He had sworn 2 affidavits dated 5 March 2015 and 27 January 2016 PCB 3 and PCB 4
Background
7 The plaintiff will soon be 33 years of age and is a serving police officer, currently as a detective leading constable in criminal investigation. After two years study in social science at TAFE he commenced employment with the defendant on a full-time basis in April 2003.
8 His early work on general duties involved the wearing of a belt laden with policing equipment, and the plaintiff found that the wearing of the belt and the difficulty the implements on it posed for finding a comfortable position during long periods of time in police vehicles,[4] caused him back pain which he first reported to his employer – PCB 50 – on 12 June 2004. Further reports of back pain attributed to the equipment followed and claims for compensation were lodged, accepted by the employer, and medical and like expenses under the then s99 of the Act were paid by the WorkCover insurer. A more detailed account of his report to the employer is set out in an Occupational Health & Safety Incident Notification, prepared by one Senior Sergeant Barbary on 6 July 2007 – which recorded that the injury had occurred over a period of 2½ to 3 years from the wearing of the belt and sitting with it on.[5]
[4]PCB 9, paragraph 3
[5]PCB 28
9 The plaintiff continued to work and to wear the belt until about 2010 when equipment vests were provided, though after that time the continued wearing of a less cumbersome belt (nevertheless with a gun suspended from it) continued to cause him trouble. In 2011 the plaintiff underwent some training with a view to joining special operations but found he could not persist with that because of back pain.[6]
[6]He also had a problem with dizziness for which cardiac causes were eliminated – Exhibit 3
10 Since 2011, the plaintiff has been in criminal investigations where equipment belt wearing is not required, although he still avoids activities and duties that might aggravate his back problem.
11 The plaintiff’s entitlement to medical and like expenses under the statute seems only to have been interrupted on one occasion – and on this the reason given was the suitability of the treatment rather than the compensability of the condition for which it was being received.[7]
[7]DCB 18
12 In 2014 the plaintiff submitted a claim for impairment benefits under the Act, and the authorised insurer of the defendant accepted liability by notice dated 24 July 2014, after having the plaintiff’s impairment assessed by Professor Goldwasser – PCB 59.
History of treatment and investigation.
13 About a year after reporting his back pain, the plaintiff commenced to consult a chiropractor in June 2005 – the chiropractor’s history is at PCB 16. He presented with a history of left-sided low back pain without radiation that had begun months earlier and had gradually been getting worse – aggravated by the wearing of his equipment belt and sitting. On examination, the chiropractor felt his symptoms were localised at the L5-S1 level and, apart from a minor scoliosis, plain x-rays revealed no abnormality. He was treated over a period of about a month and returned three months later with similar pain. Massage was recommended and received, and the plaintiff was seen with relative regularity in 2006, and in 2007, during which time the chiropractor noted some improvement at times when he was not working, and in 2008, it was noted that myotherapy had not helped, and a more intensive period of chiropractic treatment followed. Over a number of years it appears from the report that although some improvement was experienced from spells of treatment, he soon returned with similar complaints. The chiropractor noted that treatment seemed to be less effective during the year 2009 when the plaintiff was also suffering from compensable injury to his knee.
14 A decision of the authorised insurer brought his engagement with Dr Brown to an end. Dr Brown commented in his report – on which I cannot find a date – that the coincidence between return to regular work duties and his back symptoms indicated “a direct correlation between his work duties and Mr Yates’ lower back condition” – DCB 19 – a conclusion he restated at DCB 21 “it still doesn’t change the fact that Mr Yates has sustained a chronic low back condition as a result of his work duties and requirements”.
15 After chiropractic therapy stopped, the plaintiff persisted with massage at his own expense, and in about 2013 consulted doctors at the Hastings Clinic. Bradley Frew, a doctor from that clinic writing in October 2013, felt that his symptoms were consistent with the described mechanism of onset, and that his duties as a policeman were responsible for his low back pain. Dr Frew was aware of a decision made by the WorkCover insurer in July 2013 attributing the plaintiff’s problems to some form of aggravation of an adolescent growth problem[8], a proposition which he strongly disagreed. Dr Frew referred him to radiology for the MRI examinations I have already set out. Dr Frew’s diagnosis was of chronic lower back pain with disc degeneration at L5-S1 for which he recommended ongoing physical therapies and which he continued to attribute, writing in 2015, to his duties as a policeman.
[8] Not elsewhere referred to in the material tendered.
16 In March 2015 he consulted the Rosebud practice of Dr M Coffey. The history recorded was –
“On Friday 6th March he consulted me with a flare of his longstanding left sided low lumbosacral back pain with associated left sciatica after doing some gardening. Michael told me that he initially noted pain when he was a policeman some 10 years ago wearing the equipment belt required for the job. His pain has improved since he became a detective as he no longer has to wear the equipment belt & he is able to sit or stand as needed. Even so, he says he is never really ever free of pain. It will flare with activity, as well as prolonged sitting or standing and interferes with his enjoyment of life. Anti-inflammatory agent including prednisolone seem to help manage the pain but he gets only limited relief with physiotherapy, chiropractic or massage”.[9]
Dr Coffey diagnosed L5-S1 discogenic lumbar back inflammation for which a short course of prednisolone and analgesics was prescribed, producing an improvement in his acute symptoms, leaving his constant low grade pain. Dr Coffey felt his back pain was such he should be referred for specialist treatment, first to a neurosurgeon, Dr Ales Aliaschkevich - whose correspondence with Dr Coffey is at PCB 33B. The neurosurgeon felt that the available imaging “demonstrated the most significant pathology affecting segment L5-S1 with reduced height and reduced hydration in the intervertebral disc with posterior annular tear persisting since 2013” – PCB 33C. The neurosurgeon felt he had classical features of an annular tear and dehydration of the annulus pulposus and felt referral to Dr Gassin appropriate, and should he fail to respond to that treatment, spinal fusion would be a last resort.
[9] PCB 9
17 The plaintiff was referred to Dr Robert Gassin, a musculoskeletal and pain physician, who performed left S1 transforaminal epidural injection and bilateral L5-S1 facet joint injections without any significant relief. Dr Coffey continued to regard his prognosis as guarded.
18 Dr Gassin reported on 30 October 2015 – PCB 31 – that he felt his pain was most likely arising from the L5-S1 disc and advised the plaintiff that the mainstay of his treatment should be a specific form of physiotherapy. He performed transforaminal steroid injections in July 2015 which produced little change in his symptoms, and suggested low lumbar medial branch blocks with a view to subsequent radio frequency neurotomy as possible forms of treatment. As to causation, Dr Gassin wrote “prolonged use of the heavy equipment belt can certainly lead to a previously damaged lumbar disc becoming symptomatic”.[10] In later correspondence, Dr Gassin reported that his treatment options were frustrated by the fact that he was not then covered by WorkCover. It was the plaintiff’s evidence that he intends to proceed with the proposed injections this year.
[10]PCB 33
19 The plaintiff has had prolonged physical forms of therapy for many years and his medication, apart from the short course of prednisolone, has been predominantly “over-the-counter” anti-inflammatory medication and Panadol, both of which he continues to take with some regularity.
The medico-legal reports
20 The plaintiff was examined by Professor Richard Bittar, a neurosurgeon, who took a history which seems to be uncontroversial and concluded that the plaintiff’s back pain was most likely discogenic arising from the L5-S1 segment. On the basis of the history he obtained from the plaintiff, it was the professor’s opinion that employment was a significant contributing factor.
21 In the context of the accepted impairment benefits claim, Associate Professor Goldwasser, answered the question – “What is the nature of the workers spinal condition?” – in these terms: “Mr Yates suffered an injury to his lower back with evidence of disc pathology, bulging and degeneration, at the L5-S1 level, associated with pain dysmetria and local tenderness.” Professor Goldwasser was also asked[11] whether apportionment was indicated in the case replying “Mr Yates has had no significant problems with his back previously and apportionment is not required.
[11]Perhaps for the purpose of s91(7)
22 Although the plaintiff has had an apparently active WorkCover claim for about 10 years, the defendant tendered only the reports of Mr Rodney Simm and Professor Graham Brazenor, both obtained in 2015. In his report of 13 May 2015, Mr Simm describes the plaintiff’s presenting condition as “chronic mechanical lumbar back pain with referred pain into the left lower limb”. He stated that “the most likely cause for his pain is L5-S1 lumbar disc degeneration”, observed that this was common constitutional pathology not influenced by significant trauma in this case and then stated “this man has had ongoing symptomatic exacerbation of his mechanical low back pain in the course of his work as a police officer since 2005; however, there have been other causes for exacerbations of back pain” – DCB 5 – as to his prognosis he wrote “I suspect that in the not too distant future he will have difficulty coping with the more physical demands of his job and there may be the need for some permanent constraints on these activities by modification of his work duties”.
23 In a later supplementary report, Mr Simm addressed the connection between mechanical loads and lumbar disc degeneration by reference to unspecified literature which he said “demonstrated that physical loading of the back, even extremely high and repeated physical loading of the back, has a very limited and still uncertain contribution to the acceleration of lumbar disc degeneration”. He said most studies indicate that manual work does not cause it, and that the mechanical loads here would not qualify as excessive or abnormal. He then wrote “The forces transmitted to the back from wearing a utility belt could be associated with some secondary backache, perhaps muscular and/or discogenic in origin, but these relatively minor mechanical forces could not, in the light of the literature studies of epidemiology, be responsible for causing accelerating or changing this degenerate intervertebral disc pathology” – DCB 2.
24 Professor Graham Brazenor, neurosurgeon, in an opinion he qualified as he had not himself seen radiological images, noted (unlike other examiners) that he could find no physical sign of low back pain or disability on examination, regarded his history of back discomfort as plausible and unexaggerated, and agreed with Mr Simm to this extent “that by far the most likely cause for the mild age-appropriate degenerative changes reported on MRI is merely the normal age-related degenerative change seen in healthy human beings”. In a footnote or rather an addendum, he regarded Dr Frew as being outside expertise when he attributed the plaintiff’s back pain to his duties.
25 As to whether compensable injury to the plaintiff’s lumbar spine is a cause of his present low back and left leg pain, I am satisfied on the balance of probability that it is. My reasons for so finding follow. Under the Act, injury as defined includes the “recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease”[12]. These expressions cover a variety of ways in which a pre-existing disorder may “worsen” in that the worker’s experience of the pre-existing condition changes for the worse, either as a result of increased symptoms and disability or as a result of changes to the pre-existing condition’s pathology. The Act provides that any such worsening is compensable only if employment was a significant contributing factor to that worsening. In considering whether this is so, I must take into account the factors listed in s51B, and I have done so.
[12]Relevantly in reprints 13 and 14 what is often referred to as the extended definition of injury it was found in s5
26 I pause to notice that the evidence does not disclose the existence of any hereditary risks, any lifestyle risks or any activities of the worker outside the workplace that might contribute to his condition. It does disclose that he performed this work over a period of years, that he experienced increased symptoms whilst doing the work and I note that there is not any evidence that he would have developed, at the age of 21, symptoms arising from the lumbosacral disc had the employment not taken place.
27 I notice also that in the course of his submissions senior counsel for the defendant – Transcript 31-33 – accepted that the “flaring up” of the plaintiff’s back pain was caused or significantly contributed to by his employment at the time it came on, but went on to submit that the “flaring up” so described was not permanent or long-term, stating rather that it is a short-term flaring up of an underlying condition. When this proposition was further explored, the submission was clarified to be “the pain is not necessarily short-term, the contribution of work is short-term” – Transcript 32. Counsel was unable to say when it was that the plaintiff’s pain ceased to be caused or significantly contributed to by his work and became only caused by the underlying condition – this is unsurprising as there was no evidence of any change in his experience of the symptoms over the years since they came on.[13]
[13]None of the medical commentators had offered an opinion as to when this might have occurred.
28 In this case it is not in contest that the plaintiff’s back pain and leg pain arise from the pathology identified on the imaging at the L5-S1 level. His symptoms have remained the same since they were first experienced, and I am satisfied that this has been so since 2004 when he was only 21 years of age. His symptoms came on whilst performing his work and have been with him ever since. In my view, the evidence does not support the defendant’s argument that the plaintiff has experienced discrete flare-ups of the condition, nor the argument that at some point since the pain commenced, the work contributing to its persistence, came to an end.
29 As is often the case in applications of this sort, none of the medical witnesses were required to attend to be cross-examined upon their opinions, and it has often been remarked that this makes more difficult the assessment of conflicting views.[14]
[14]Reference to Makita was not accompanied by an objection to the admissibility of the opinion relied upon
30 That the plaintiff’s work was the cause of the onset (and persistence) of his low back pain arising from the lumbosacral disc degeneration, is the opinion of those medical and chiropractic professionals who have treated him over the years and who have had the opportunity to observe the effects of his work upon his presentation during the period in which it occurred. It is also the opinion of the treating specialist Dr Gassin and of the medico legal commentators associate professor Goldwasser, and Prof Richard Bittar. Their opinions, in my view, fit well with the sequence of events and the plaintiff’s description of his experience of his low back pain. I accept their opinions.
31 Where they are in conflict, I prefer those opinions to those of Mr Simm, and Mr Brazenor. They each saw the plaintiff for the first time for single examinations more than 10 years after the onset of symptoms and the acceptance of his claim. Neither of them has seen the films of the radiology. Their opinions do not explain why it is that the plaintiff had disc pathology at the L5-S1 level at the young age of 21, and the studies that Mr Simm refers to are not identified nor is there any discussion as to whether those studies shed any light on the incidence of like degenerative changes in males of that age. Much of Mr Simm’s supplementary report was directed to whether the plaintiff’s symptoms arose from the changes in the lumbosacral disc, he concluded on balance that they did. Neither of them attempts to identify when it was that the (continuous) symptoms ceased to be related to work.
32 I should say that I would have reached this conclusion on the basis of the evidence without reference to the admissions of liability which are also relied upon by the plaintiff – Ansett v Taylor.[15] Here the defendant accepted the claim on at least two occasions. It did refuse, after some years, payment for medical treatment in the form of massage and chiropractic – but only did so on the grounds that this treatment was ineffective, and not because the treatment was not for a compensable condition. Moreover, it accepted in circumstances not explained, the claim for permanent impairment that was lodged in 2014. In those circumstances I regard the admission as very significant and supportive of the conclusion I have reached - that the present condition of the plaintiff’s lumbar spine results from compensable injury within the meaning of the Act.
[15]Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171; Dasreef Pty Ltd v Hawchar [2011] 243 CLR 588; Transport Accident Commission v Florrimell [2013] VSCA 247; Borazio v The State of Victoria [2015] VSCA 131; Valente v OneSteel & Ors [2013] VCC 453; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Haden Engineering
33 I find that the plaintiff suffered compensable injury over the course of his employment as a result of the wearing of the belt and sitting for long periods with it on, being the aggravation, acceleration, exacerbation or deterioration of degenerative changes at the L5-S1 level of the lumbar spine. I find that as a result of this injury the plaintiff has a permanent impairment or loss of function of the lumbar spine.
34 I have been careful not to include psychological or psychiatric consequences of the physical injury when assessing permanent serious impairment or loss of a body function in accordance with s134AB(38)(h).[16]
[16]Apart from one paragraph in Mr Simms report, none was suggested.
35 I am satisfied that the impairment or loss of body function of the plaintiff’s spine has resulted in pain and suffering consequences which are, when judged by comparison with other cases in the range of possible impairment or losses of body function, fairly described as being more than significant or marked and as being at least very considerable (s134AB(38)(c)).
36 As the plaintiff’s account of the consequences of the injury was scarcely contested, I will state my reasons for so finding shortly. The plaintiff is presently only 32 years of age and has suffered symptoms from the compensable injury for over 10 years as at the date of hearing. The weight of the medical evidence is that he will continue to suffer symptoms at their present level and that they may deteriorate to the point of requiring surgery. The plaintiff describes continuous pain easily exacerbated by a range of relatively minor activities. The plaintiff has sought regular medical treatment for his symptoms over the years and more recently has undergone spinal injections, treatment with cortisone, and further treatment may eventually be recommended in the form of surgery. He has taken for years, and continues to take, regular over-the-counter anti-inflammatory medication and analgesics. His symptoms interfere with a wide range of sporting activities and he is now reduced to basketball which increases his pain and often causes him to miss the next week’s game. It has interfered with his career prospects and his ambition to join special operations, and with aspects of his present duties. It interferes with his sleep on a regular basis, with his sex life, with the parenting of his infant child and his tolerance of social situations. It has not been seriously suggested that any improvement is likely and so these consequences are likely to persist for the rest of his life. In my judgment, after making the required comparison, the consequences for him meet the very considerable test.
37 For these reasons the plaintiff is granted leave to bring a proceeding for the recovery of damages for pain and suffering consequences of the serious injury to the lumbar spine sustained in the course of his employment between 2004 and 2010.
Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622;
Church v Echuca Regional Health [2008] VSCA 153;
Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219;
Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124;
Haden Engineering Pty. Ltd. v McKinnon [2010] VSCA 69 at para 47.
Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235
Humphries v Poljak [1992] 2 VR 129
Jayatilake v Toyota Motor Corporation Australia Limited [2008] VSCA 167;
Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649;
Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143.
Sabo v George Weston Foods [2009] VSCA 242
Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 and
State ofVictoria v Rattray [2006] VSCA 145;
Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 81
Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
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