Zahra v GUD Automotive Pty Ltd
[2013] VCC 599
•4 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00619
| JOHN ZAHRA | Plaintiff |
| v | |
| GUD AUTOMOTIVE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 May 2013 | |
DATE OF JUDGMENT: | 4 June 2013 | |
CASE MAY BE CITED AS: | Zahra v GUD Automotive Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 599 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to low back – whether pain and suffering consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(c)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Application for serious injury dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh | Nowicki Carbone |
| For the Defendant | Ms R Kaye | Hall & Wilcox |
HIS HONOUR:
Introduction
1 This proceeding is an application brought by Originating Motion dated 31 January 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of or in the course of his employment with the defendant, and in particular, on 30 June 2004.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages only.
3 The injury suffered by the plaintiff for which he seeks leave to bring proceedings for damages is an injury to the low back or lumbar spine.
4 The plaintiff gave evidence and was cross-examined during the hearing. The parties also tendered the following exhibits:
· Exhibit A, the Plaintiff’s Court Book (“PCB”), pages 6 to 63 and pages 74 to 95;
· Exhibit B, the clinical notes of Dr J Kyriacopoulos, general practitioner, for the plaintiff, in August of 2009;
· Exhibit 1, the J & M Zahra Family Trust Financial Statements for the year ended 30 June 2012;
· Exhibit 2, individual taxation return of the plaintiff for the financial year ended 30 June 2011;
· Exhibit 3, report of Dr Nigel Strauss, psychiatrist, at PCB 64 to 73;
· Exhibit 4, the Defendant’s Court Book (“DCB”), pages 1 to 19, 24 to 49 and 56 to 59.
5 Ms Kaye, on behalf of the defendant, identified the issue in this application as whether or not the consequences of the injury to the plaintiff met the statutory test. In short, this case is a “range case”.
The statutory scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38).
8 I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
10 The plaintiff was born in 1965. He is now aged forty-eight years. The plaintiff was born and educated in Australia and has spent his working life here in Australia. The plaintiff was educated to Year 10 at Sunshine Technical School.[3]
[3]PCB 6
11 The plaintiff is a married man and lives with his wife and two children.
12 The plaintiff and his wife conduct a cleaning business under the name of ‘John O Cleaning Pty Ltd’.[4]
[4]PCB 12
13 The plaintiff had worked for the defendant since 1981. He originally commenced work there as a storeman and then was promoted to warehouse supervisor in 1994.[5] The plaintiff resigned his employment with the defendant company on 9 September 2009.[6]
[5]PCB 7
[6]DCB 54
Injury with the Defendant
14 The plaintiff was employed as a warehouse supervisor whose duties involved the driving of a forklift and handling of stock. On 30 June 2004, the plaintiff was lifting a box onto an overhead pallet. The load became unbalanced and the box fell backwards. The plaintiff bent back in an effort to catch the box, in effect hyper extending his back. He experienced immediate pain in his lower back, which extended into his right buttock.[7]
[7]PCB 8 at paragraph 11
15 In the course of his evidence, the plaintiff expanded on the incident of 30 June 2004. He stated that, in the process of trying to catch the box, he had tripped backwards onto his back.[8]
[8]Transcript (“T”) 22, L16-18
16 In his histories to most of the examining medical practitioners in this case, the plaintiff has maintained that he fell down onto the ground as a result of this incident. I note that Mr Michael Shannon, orthopaedic surgeon, who examined the plaintiff on behalf of the defendant in this case, took a history from the plaintiff that he did not actually fall.[9]
[9]DCB 34
17 In the Worker’s Claim Form which was completed on 21 September 2006 by the plaintiff, he nominated that he was driving a forklift immediately before the injury occurred. He also nominated that the exact location where the injury occurred as “seating on forklift”. The plaintiff also nominated that the seating at the desk chair was a contributing factor to his injury.[10]
[10]PCB 79
18 Whilst it is a bit unclear from the evidence and from the documentation referred to during the hearing of this case as to what was the actual incident which caused the injury to the plaintiff, the defendant has accepted that the plaintiff has a low-back injury arising from an incident which occurred on 30 June 2004.[11]
[11]PCB 82
Medical treatment of the Plaintiff after the injury
19 Immediately after the accident, the plaintiff reported the incident orally to his immediate supervisor, Jim Sambouzakis.[12] He continued with his work and went home on that day. He returned to work on the following Monday without taking any time off work as a result of the incident.
[12]T36
20 The plaintiff gave evidence that he went to see his general practitioner, Dr J Kyriacopoulos, in October 2004 about the injury to his low back. In his evidence, the plaintiff stated that he was certain that he went to the doctor about his low-back pain in October 2004.[13]
[13]T28, L11-17
21 It is clear from the report of the general practitioner, Dr Kyriacopoulos, dated 23 April 2012, that the plaintiff did not present with his low-back pain complaint until 29 August 2006.[14]
[14]PCB 51
22 The plaintiff’s treatment in 2004 from Dr Kyriacopoulos was in relation to his neck complaints. It was at that time that the plaintiff was referred for x-ray of his neck. The confirmation of that treatment for a neck complaint in 2004 is from the notes of Dr Adrian Hubbard, osteopath, referring to treatments between 5 October 2004 and 15 October 2004 for the plaintiff’s neck.[15]
[15]PCB 48a
23 Mr Hubbard’s notes in relation to the osteopathic treatment for the plaintiff’s back commenced on 6 September 2006.[16] From September of 2006 through to September 2012, the plaintiff received reasonably consistent osteopathic treatment for his lower back complaints.
[16]PCB 48b
24 The plaintiff’s evidence is that he received osteopathic treatments from Mr Hubbard at his place of employment with the defendant in 2005. The plaintiff relies on an entry from the “GUD – WorkCover Case Notes” which set out the following:
“Reason the late claim Osteo on sight (sic) at time of incident and treatment was received in house. Osteo services terminated at GUD Aug 06 – treatment then sought off site. … .”[17]
[17]PCB 101
25 In his report dated 19 February 2007, Dr Hubbard stated as follows:
“‘Mr John Zahra presented to Westside Health & Sports Clinic on 6 September 2006 for treatment of his low back complaint
He has been suffering non-specific mechanical back pain for some time. I have previously treated him on-site at GUD for the same condition.
… .”[18]
[18]PCB 28
26 I accept that the plaintiff has been receiving osteopathic treatment from Mr Hubbard and other osteopaths from some time in 2005 until the end of 2012 for his low-back condition.
27 The plaintiff was referred for x-ray of his lumbar spine on 23 April 2009 by his general practitioner, Dr Kyriacopoulos. The fact that the plaintiff was referred for such an x-ray by Dr Kyriacopoulos is inconsistent with the statement by Dr Kyriacopoulos that he first saw the plaintiff for low-back pain in August of 2009. The x-ray report dated 23 April 2009 is best summarised as reporting that the lumbar spine is normal.[19]
[19]PCB 23
28 The plaintiff was then referred by Dr Kyriacopoulos for a CT scan of his lumbosacral spine. This examination took place on 7 September 2009. The conclusion of that examination is as follows:
“CONCLUSION:
1. Mild to moderate central canal stenosis is seen at L4-5 level.
2. No further significant central canal or foraminal stenosis is seen.
3. The degree of nerve root impingement can be further assessed with MRI examination of the lumbar spine.”[20]
[20]PCB 24
29 Dr Kyriacopoulos then referred the plaintiff for an MRI scan of his lumbar spine. The conclusion of that examination, which took place on 12 October 2009, was that there was no canal or foraminal stenosis.[21]
[21]PCB 25
30 The final and last radiological examination of the plaintiff was performed on 23 May 2012. The findings of the MRI examination are as follows:
“L1/2, L2/3 & L3/4 levels:
The posterior contours of the discs are normal. The central canal and neural exit foramina are of normal dimension.
L4/5 level:
Mild right-sided facet joint arthropathy is noted. The posterior contour of the disc is normal. The central canal and neural exit foramina are normal dimension.
L5/S1 level:
The posterior contour of the disc is normal. The central canal and neural exit foramina are normal, dimension.
Impression:
Early degenerative changes noted in L3/4 disc with mild desiccation and reduction in the intervertebral disc space height noted.
No evidence of significant posterior disc herniation throughout the range of the study. Mild right-sided facet joint arthropathy at L4/5.”[22]
[22]PCB 26
31 Dr Kyriacopoulos did not refer the plaintiff to any further specialists for diagnosis or treatment of his lower back complaint. In August of 2009, shortly before the plaintiff resigned from his employment with the defendant, he attended Dr Kyriacopoulos. Dr Kyriacopoulos’ notes were tendered as Exhibit B in this proceeding.
32 On 20 August 2009, the plaintiff was prescribed Panadeine Forte for pain relief. The plaintiff has given evidence that he uses Panadol, Panamax, and occasionally Panadeine Forte for pain relief.
33 The other ongoing treatment that the plaintiff receives is hydrotherapy and, until recent times, some gymnasium exercises.
34 The plaintiff has had a number of unrelated medical conditions and treatments since 2006. In March of 2006, he was hospitalised for ten days with a heart condition.[23] He currently takes Lipitor in respect of his ongoing condition.
[23]T39
35 In late November of 2011 and early 2012, the plaintiff was diagnosed with diverticulitis. He underwent surgery in June and August of 2012, with stays in hospital relating to that condition.[24]
[24]T41-42
36 The plaintiff has also recently been surgically treated for a hernia condition in February of 2013. This also involved his hospitalisation, and his evidence is that, due to those injuries, he does not currently undertake any osteopathic treatment. I accept that these unrelated medical conditions of diverticulitis, hernia and heart condition impact upon the plaintiff’s physical wellbeing and his ability to work and conduct his business of John O Cleaning Pty Ltd.
37 In respect of his back condition, the plaintiff currently receives no medical treatment and takes pain-relieving medication as and when he needs it. His evidence is that he is limited in the medication he can take due to his bowel condition.
38 I conclude that in respect of the medical treatment received by the plaintiff for his low-back pain, that the delay between the incident on 30 June 2004 and his first attendance on his general practitioner in August of 2006,[25] indicates that the symptoms of pain and disability were not serious. The plaintiff continued in his same role and employment from the time of the injury in 2004 until his resignation in September 2009. On the evidence before the Court, the plaintiff took no time off his work due to low-back symptoms until immediately before his resignation. I accept that he had received osteopathic treatments on a regular basis between 2005 and his resignation. That treatment in and of itself does not indicate a serious low-back condition.
[25]PCB 53
The medical opinions tendered on behalf of the Plaintiff
39 The plaintiff relies upon the opinions of the following doctors:
(a) Dr Jim Kyriacopoulos, general practitioner
40 Dr Kyriacopoulos is the plaintiff’s general practitioner. He prepared two reports in respect of this application, dated 23 April 2012 and 25 February 2013.
41 Dr Kyriacopoulos stated, in his first report:
“Mr Zahra has not to my knowledge seen any specialists for his back. He continues to manage his condition with exercises, swimming, gym work and spas at his local gymnasium. Given he has a moderate level of function with his current physical therapies, he should continue with this regimen. Surgery would not be advisable at this stage, although a second opinion from an orthopaedic surgeon can be sought if his condition deteriorates.”[26]
[26]PCB 52
42 In his report dated 25 February 2013, Dr Kyriacopoulos notes that the plaintiff’s condition has stabilised but fluctuates on a daily basis. He stated:
“… He continues to have pain almost daily that causes him to cease driving long distances or working for more than six hours per day. He is currently self employed and is working as a cleaner. … .
…
… He continues to manage his condition with exercises, swimming, gym work and spas at his local gymnasium. Given he has a moderate level of function with his current physical therapies he should continue with this regimen. Surgery would not be advisable at this stage, although a second opinion from an orthopaedic surgeon can be sought if his condition deteriorates.”[27]
[27]PCB 54
43 In neither of these reports does Dr Kyriacopoulos refer to the pain-relieving medication that the plaintiff says he is taking. It was clear from Exhibit B that the plaintiff was prescribed Panadeine Forte in August of 2009. It is not clear from the reports of Dr Kyriacopoulos when the last time Panadeine Forte was prescribed by him for the plaintiff. This is for the period 2009 until 2013.
44 Dr Kyriacopoulos has not seen fit to refer the plaintiff to an orthopaedic surgeon or a neurosurgeon in respect of the lower back pain suffered by the plaintiff.
(b) Mr Michael Fogarty, orthopaedic surgeon
45 The plaintiff was examined by Mr Fogarty for the purpose of this application. Mr Fogarty prepared a report dated 9 May 2012.
46 Mr Fogarty took a history from the plaintiff that he worked 25 hours per week, including some cleaning, but mostly supervising, since he ceased his employment with the defendant in 2009.[28]
[28]PCB 56
47 On examination, Mr Fogarty noted:
“… There was no objective neurological deficit in either lower limb and all reflexes were present, brisk and equal. There was no wasting of muscles (measured) but there was slight weakness of the extension on the right side. Nevertheless full extension could be achieved. Sensation appeared to be normal and there was a good range of movement in both hips and both knees and in both ankles.”[29]
[29]PCB 57
48 Mr Fogarty diagnosed the plaintiff as follows:
“The diagnosis of your client’s injuries is, L4/5 posterior disc bulge plus facet joint arthritis and ligamentum flavum thickening causing some narrowing of the lumbar spinal canal at the L4/5 level. The prognosis of this condition is that he is likely to continue to have symptoms of low back and some right leg pain.”[30]
[30]PCB 57-58
49 I note for completeness that Mr Fogarty has not had the advantage of seeing the most recent MRI scan of the plaintiff’s back which was performed on 23 May 2012. The plaintiff had not been examined by Mr Fogarty since that MRI examination, which occurred on 23 May 2012.
(c) Mr John F O’Brian, orthopaedic surgeon
50 The plaintiff was examined by Mr O’Brien for the purposes of this application. Mr O’Brien prepared a report dated 8 August 2012.
51 Mr O’Brien took a history from the plaintiff that he had fallen heavily on his back at the time of injury on 30 June 2004. He also took a history that the plaintiff had received physiotherapy treatment for approximately two years.[31] I note that there is no report from the physiotherapist in the plaintiff’s material.
[31]PCB 29
52 Mr O’Brien noted a history from the plaintiff that shortly prior to his resignation from the defendant company, his duties changed, resulting in him being more active in relation to lifting and the use of a forklift. The plaintiff told Mr O’Brien that this has resulted in an aggravation of his back pain and that was the reason he resigned from his employment in September 2009. The plaintiff gave a history to Mr O’Brien that he generally worked 20 hours per week as at the time of the report in August of 2012. The plaintiff also stated that he took Panadeine Forte – approximately four a week – and takes Voltaren when his back is particularly sore.[32]
[32]PCB 60
53 On examination, Mr O’Brien noted that there was tenderness in the lumbosacral junction and in the upper aspect of the right buttock.[33]
[33]PCB 61
54 Mr O’Brien’s opinion was as follows:
“Physical signs now are indeed subjective, being related to painful restriction of lumbar movement, there being no evidence to suggest nerve root compromise or indeed radiculopathy. It is in fact noted that the investigations do not describe any significant pathological change.
I would thus conclude that this patient now presents with non-specific back pain, which I believe is now chronic. The pain clearly is influenced by mechanical factors. … .
…
… I would consider that there is no indication for further investigation or any change in actual treatment. Fortunately it would appear that the patient’s recent abdominal pathology has had no bearing on the chronic low back pain.
The prognosis in relationship to the back pain I would suggest is poor in that he will continue to experience back pain. There seems no indication however to suggest that there will be any progressive deterioration in this back pain.”[34]
[34]PCB 61-62
55 In Mr O’Brien’s opinion, the plaintiff currently suffers from a moderate disability associated with chronic back pain.
(d)Dr Adrian Hubbard and Dr Jessica Fetterplace, treating osteopaths
56 I have read the reports and notes of Dr Hubbard and Dr Fetterplace, who have been the treating osteopaths for the plaintiff.
57 Dr Hubbard, within his reports, describes aggravation of the plaintiff’s back pain by the posture at his workstation at the warehouse. Dr Hubbard stated that the plaintiff responded well to manual treatment.[35]
[35]PCB 28
58 Dr Fetterplace, in her last report, noted that the plaintiff was able to manage his back pain with rest, exercise and some treatment, but he still experiences back pain most days.[36] Dr Fetterplace was encouraging the plaintiff to continue with the gymnasium and swim programs so that he could maintain his physical condition. I note that Dr Fetterplace’s opinion is prior to the surgery undergone by the plaintiff for his condition of diverticulitis and the sequel to that surgery.
[36]PCB 43
59 The plaintiff gave evidence that his most recent osteopath was “Matt”. The plaintiff could not recall the surname of that person. There was no report from the most recent osteopath as to the current status of the osteopathic treatment for the plaintiff. The plaintiff’s evidence was that he could no longer do the osteopathic treatment because of his abdominal surgery and treatment.
The medical opinions tendered on behalf of the Defendant
60 The plaintiff was examined by a number of medical practitioners on behalf of the defendant.
(a) Dr Mary Wyatt, occupational physician
61 The plaintiff was examined by Dr Wyatt on behalf of the defendant. Dr Wyatt prepared two reports, dated 3 May 2008 and 13 February 2012.
62 Dr Wyatt took a history from the plaintiff that he had fallen backwards, and that the carton had fallen on top of him in June of 2004.[37]
[37]DCB 24
63 In May of 2008, Dr Wyatt was of the opinion that the plaintiff was fit to do his normal job. She described that employment as 50 per cent sitting in a chair at a computer and 50 per cent required hands-on work such as manual loading and unloading.[38] In Dr Wyatt’s opinion, it was reasonable for the plaintiff to receive the osteopathic treatment at that time.[39]
[38]DCB 26
[39]DCB 27
64 In her report dated 13 February 2010, Dr Wyatt noted her examination results as follows:
“Mr Zahra walked normally and he was generally agile as he moved from the seated to the standing position, alighted the examination couch, etc.
Examination of his spine was unremarkable, with mildly restricted movements, particularly in extension. He had tenderness over his lower back, with stiffness at end-of-range of lateral flexion and rotation. As at the last assessment, he was stiff in the lumbar spine, with tenderness generally over the lumbar spine.
… .”[40]
[40]DCB 30
65 In Dr Wyatt’s opinion, as at February 2010, the plaintiff’s diagnosis is:
“Mr Zahra’s diagnosis is chronic lower back pain. He has ongoing soreness in his back, aggravated by static posture and in particular sitting.
He has the typical features of long-term back problem.”[41]
[41]DCB 31
66 Dr Wyatt’s view was that the plaintiff should be encouraged to remain physically active and fit to assist in the management of his back symptoms.
(b) Mr Michael J Shannon, orthopaedic surgeon
67 The plaintiff was examined on behalf of the defendant by Mr Shannon. Mr Shannon prepared a report dated 28 April 2011. Mr Shannon’s history from the plaintiff is at odds with the evidence. Mr Shannon took a history from the plaintiff that he did not actually fall in the accident on 30 June 2004. He also took a history that the plaintiff had attended his general practitioner a few days later, complaining of pain in the centre of his low back, extending to the right side and down the back of his right thigh as far as the knee.[42]
[42]DCB 34
68 Mr Shannon also took a history that the plaintiff took Panadeine Forte when the pain was really bad, usually once or twice a week, although he mostly takes Panadol and an occasional Nurofen for pain relief.[43]
[43]DCB 35
69 Mr Shannon commented on his physical examination and the radiology reports to that time. He stated that the plaintiff has quite minor restriction of thoracolumbar flexion, and other movements are through a normal range. He described the plaintiff’s movements as a little hesitant but there was no spasm.[44]
[44]DCB 36
70 Mr Shannon reported on the MRI scan conducted in October 2009 as follows:
“On the other hand an MRI Scan performed in October, 2009 is reported to show no canal or foraminal stenosis, preservation of vertebral body heights arid normal disc contour at all levels.
The report makes no specific comment about the presence or absence of disc desiccation.”[45]
[45]DCB 36
71 Mr Shannon’s opinion was:
“On clinical grounds I would have thought that he probably does have some minor degenerative change in his spine but he has a virtually normal range of movement without evidence of spasm or radiculopathy.”[46]
[46]DCB 36
(c) Dr David Barton, occupational physician
72 The plaintiff was examined by Dr Barton on behalf of the defendant. Dr Barton prepared a report dated 1 July 2012.
73 Dr Barton took a history from the plaintiff that he had picked up a box and fallen backwards across a pallet. This is a different history from others given by the plaintiff. Dr Barton also had the report from the plaintiff that he had gone to see his doctor in reasonably close proximity to the time of the accident.[47]
[47]DCB 40
74 Dr Barton was of the view that the plaintiff’s presentation was suggestive of a degree of overlay which exaggerated the physical findings made by him. However, Dr Barton concluded that, as a result of the accident with the defendant, the plaintiff did have a low-back injury.
(d) Mr Michael J Dooley, orthopaedic surgeon
75 The plaintiff was examined by Mr Dooley on behalf of the defendant. Mr Dooley prepared a report dated 5 April 2013.
76 Mr Dooley gave his opinion as follows:
“4. From an orthopaedic point of view, I believe that Mr Zahra will note some intermittent low back pain and lower limb pain. I would not expect this to be major and I would not expect his orthopaedic condition to deteriorate in time.
5. From an orthopaedic point of view, Mr Zahra has the physical capacity to carry out light physical work and clerical duties. He would have difficulty carrying out regular heavy physical work or work that involved a lot of bending, lifting and twisting.”[48]
[48]DCB 48
77 It is clear that Mr Dooley was of the opinion that the plaintiff has a capacity to perform light physical work. This is consistent with his conduct of the cleaning business that is conducted by him and his wife.
78 I conclude that the preponderance of the medical evidence and opinion is that the plaintiff suffered a low-back injury as a result of his accident on 30 June 2004. Each of the medical practitioners who have examined the plaintiff for the purpose of this proceeding agree that the plaintiff can continue to do light work and limit himself in the amount of heavy lifting he engages in. The medical examiners have noted the ongoing physical treatment and deemed that treatment to be appropriate with respect to the plaintiff’s maintenance. All of the medical practitioners agree that no further surgical or expert orthopaedic opinion is required in respect of the plaintiff at this time.
Consequences of the low-back injury for the Plaintiff
79 The plaintiff has sworn two affidavits, dated 16 September 2011 and 21 May 2013. The plaintiff has given evidence and was cross-examined and re-examined in the course of the hearing. The plaintiff also relies upon the affidavit of Miriam Zahra, dated 21 May 2013. Mrs Zahra, the plaintiff’s wife, was present in Court on the first day of the hearing and was not required for cross-examination by the defendant. The plaintiff deposes to the following consequences as a result of the injury to his lower back. These consequences are in part supported by the evidence of Mrs Zahra.
Sleep
80 The plaintiff has given evidence that he experiences difficulty sleeping.[49] The plaintiff stated that he had difficulty trying to get to sleep and he could not get comfortable.[50]
[49]PCB 11, paragraph 31
[50]PCB 11
81 The plaintiff’s wife, Mrs Miriam Zahra, stated that after the plaintiff was diagnosed with diverticulitis, she thought that the plaintiff’s pain was so bad that she could not sleep in the same bed as the plaintiff. The plaintiff’s wife went on to say that she spent a lot of time out of the marital bed over the six-month period subsequent to the diagnosis of diverticulitis due to her husband’s (the plaintiff’s) severe back pain. There was no evidence in the medical reports to connect the plaintiff’s back pain with his condition of diverticulitis. The plaintiff himself did not distinguish between his pain from the back injury interfering with his sleep and the pain from the condition of diverticulitis or, more recently, the pain and discomfort from his hernia operation.
82 The plaintiff gave a history to Dr Nigel Strauss, psychiatrist, that he slept poorly and woke frequently.[51] This history was given in the context of a psychological condition and complaint of depression.
[51]PCB 70
83 The plaintiff also made complaint to Mr Barton about his difficulty with sleeping because of back pain. This history of back pain interfering with his sleep is concurrent with the new diagnosis of diverticulitis and the subsequent treatment for it.
84 I accept that the plaintiff does suffer some interruption to his sleep patterns as a result of back pain. I also find that the plaintiff’s sleep is interfered with by his other more recent medical conditions. I accept that the interruption to his sleep is a significant consequence for the plaintiff, but do not accept that it is, in his case, at least a very considerable consequence as required under the statutory test for serious injury.
Pain
85 The plaintiff has complained of pain to all of the medical practitioners who reported in this case. In his evidence, the plaintiff described his pain experience as follows:
Q:“In terms of your current situation, Mr Zahra, how is your back now; do you experience pain?---
A:I experience pain on day – daily and I don’t get more than four or five hours sleep without having to get up and go for a small walk and get back to bed.
Q:Has that been the constant picture since you left work in 2009 or has it been worse or better; how?---
A:Probably the last three years it’s been about the same as the worst it’s been but it hasn’t been any worse or better in the last year or so.
Q:Has the condition, the diverticulitis, following the surgery, do you suffer any pain from the site of the surgery or from the colostomy?---
A:The pain I suffer from the surgery is where I have the stitches. Sometimes if I cough or sneeze or it’s a bit cold or something like that, where they’ve cut me it’s sore.
Q:What’s worse, the back pain or the pain from the diverticulitis?---
A:When I had my diverticulitis, the pain would be unbearable but now it’s me (sic) back.”[52]
[52]T73, L13-31
86 It is clear from the evidence of the plaintiff that the multiplicity of conditions he currently suffers – that is, his back injury, his diverticulitis and his hernia operation – all combine to give him the experience of pain and interference with his sleep.
87 The plaintiff has managed to continue with conducting his cleaning business and generally live a normal life with the assistance of osteopathic treatment and hydrotherapy treatment. The plaintiff is not currently seeing, or receiving any treatment from, an osteopath, but can maintain his employment and the conduct of his cleaning business with the assistance of family members and other workers.
88 The plaintiff in the past has been prescribed Panadeine Forte, and his evidence is that he takes Panadol and Nurofen to control his pain. As I have previously noted in these reasons, there is no mention of the prescription of Panadeine Forte by the plaintiff’s general practitioner, Dr Kyriacopoulos. The only documentary support for that prescription of pain-relieving medication is Exhibit B. The plaintiff has given a history to the other medical examiners that he has taken Panadeine Forte for pain relief.
89 I accept that the plaintiff does experience pain in his lower back as a result of the accident at work with the defendant. I find that the consequence of pain for the plaintiff is relatively constant but the causes of it relate to his other medical conditions, as well as the injury to his back. The plaintiff, with osteopathic and hydrotherapy treatment, has been able to manage to conduct his life in a reasonable manner since the time of his accident in 2004. In fact the plaintiff managed to work full time in the same employment for the following five years. I do not accept that the plaintiff suffers from pain to the extent that it could be properly described as “very considerable” and hence he does not satisfy the statutory test for serious injury in respect of pain.
Activities of daily living
90 The plaintiff is able to participate in the activities of daily living around his family life, including some domestic chores at the house. His evidence was that he employs someone to maintain his garden but otherwise assists in the housework at his home. In his evidence, when questioned about how much he could do after his discharge from the hernia surgery in February 2013, the plaintiff stated as follows:
Q:“And then again the same story when they discharged you, they said take it easy and the like?---
A:They told me to take it easy for the rest of my life because of the problem I have as well, because it could keep occurring.
Q:And when they said to you, ‘Take it easy’, they’re talking about not doing strenuous activities?---
A:Try and minimise my string of activities as much as I can, where I can. I still do things like wash a car, walk a dog, lift things under a certain weight. I try to.”[53]
[53]T44, L19-27
91 It is clear from that evidence given by the plaintiff that his other medical conditions impact upon the activities he can partake in, in a sense that his later medical conditions have overtaken the back pain which is as a result of the injury in 2004.
Sport
92 The plaintiff stated in his affidavit that:
“Prior to my workplace accident I enjoyed an active lifestyle. I particularly enjoyed playing golf, bike riding and fishing activities.”[54]
[54]PCB 10, paragraph 28
93 The plaintiff’s evidence was that he never played golf in 2004 and had never played golf prior to his accident in June 2004.[55] He went on to say:
[55]T54
A:“I only played golf for a very short period so I only played golf – I think it was around five years from – take five years off now, about 2009, 2010 for a short period I played golf.
Q:And that’s the only time in your life you’ve been a golfer?---
A:Yes.
Q:I see. Were you a member of a club at that time?---
A:No.
Q:Was it a competition golf or a social golf?---
A:Just social.
Q:With a few friends?---
A:Yes.
Q:So you just took it up and started to learn - - - ?---
A:Yeah, playing with a few friends, yes.
Q:Did one of your friends invite you along to come and learn?---
A:Yes.
Q:And in that short period, in 09 and 2010 how frequently did you go and play golf?---
A:I probably played half a dozen times in total.”[56]
[56]T55, L1-16
94 I do not accept that the plaintiff has lost the ability to play golf as a result of the accident in June 2004. It is quite clear the plaintiff had never played golf prior to that accident and that the basis for him playing golf for a short period in 2009 and 2010 was purely a social event, which he gave up.
95 The plaintiff has always been a keen fisherman. He owns a boat. His evidence was that he took up the fishing more keenly in 2006 to 2007. It was at that time that he purchased the boat.[57] The plaintiff has made some changes to his boat as a result of his back pain. His evidence was:
[57]T56
Q:“In terms of your fishing, how has your fishing been affected by your back pain?---
A:I’ve altered my fishing by putting everything on my boat is now electric because in about three, four years ago it was either put another anchor winch on the boat or sell the boat and stop fishing and I don’t go out fishing unless it's under five knots, five to eight knots.
Q:Why is that?---
A:Because as much as I enjoy it, it’s pretty calm in the morning when you’re out at five knots. If I come back and it’s been rough I suffer the next day.
Q:Suffer what?---
A:Back pains.
Q:Are you doing more or less fishing now?---
A:Probably the last 18 months less.”[58]
[58]T76, L9-21
96 It is interesting to note that the major reduction in the plaintiff’s fishing activities coincide, unfortunately for him, with the diagnosis of diverticulitis and its treatment, followed by the hernia operation in the early part of 2013. I do not accept that the plaintiff’s ability to fish has been interfered with to any considerable extent as a result of the back pain suffered as a result of his injury in June 2004.
97 The plaintiff continues to be able to ride his bike. He was a person, who as a result of injuries to his knees from a younger time, took up riding a bike. In his evidence, he stated that he had ridden his bike over a distance of some 16 kilometres approximately two to three weeks prior to this hearing.[59] It is clear that the plaintiff continues to enjoy bike riding despite all of his ailments and pain in his lower back.
[59]T58
Work
98 The plaintiff has given evidence that he resigned from his work due to the back pain in 2009. I find that the plaintiff resigned from his work with the defendant in 2009 for a combination of reasons. The combination of reasons is:
· his conflict with his new superior, Ms Smith;
· the change in his employment duties from being a full-time supervisor to being a picker and being required to do supervisory duties but without the equivalent pay; and
· the back pain that he was complaining to his general practitioner about in August of 2009.
99 A fair assessment of the plaintiff’s evidence supports that conclusion.
100 The plaintiff had also registered his company, John O Cleaning Pty Ltd, on 9 September 2009.[60] Since approximately October 2009 to the present day, the plaintiff has conducted his cleaning business, together with the assistance of his wife, his two children and other family members.
[60]DCB 56
101 The plaintiff’s evidence is that he is limited to 25 hours of work per week. He states he is also limited to light duties. I find that the plaintiff’s change of employment from being a supervisor at the defendant company to being a director and manager of the cleaning company conducted by himself and his wife is not the direct result of him having low-back pain.
102 The plaintiff has made a choice to elongate and control his work situation by conducting his own business. Fortunately for him and his family, it appears on the financial documentation presented in this case, that the change in business and employment has been beneficial to him. The family cleaning business has all the hallmarks of being a promising enterprise conducted by the plaintiff and his wife.
103 The setbacks to the business have been more directly related to his unfortunate diagnosis of diverticulitis and the subsequent repair to his hernia in February of 2013. Despite those setbacks, the plaintiff has successfully adjusted his business.
104 I accept that the plaintiff does suffer some pain in his back if he undertakes heavy cleaning work, but otherwise I do not accept that the consequence for him of that injury to his lower back is significant in the conduct of his work.
Credit of the Plaintiff
105 The defendant in this case did not outline that the credit of the plaintiff was in issue. There was no surveillance film shown of the plaintiff. There was no indication that the plaintiff had been the subject of surveillance by the defendant or its agents.
106 I accept the plaintiff has given his evidence in a reasonable manner. He may have at times tended to exaggerate the impact of the low-back pain on his life and daily activities, including his work situation. Overall however, I accept that he was doing the best he could to give an accurate description of his personal situation in respect of his low-back injury.
Conclusion
107 I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury to his low back has occasioned him. I am required to determine where the facts of this particular case sit in a broad spectrum of cases. The test to be applied is whether the plaintiff’s pain and suffering consequences, when judged by a comparison with other cases in the range of possible impairments or loss of body function, may be fairly described as being more than “significant” or “marked” and as being at least very “considerable”.
108 In assessing the level of consequences for the plaintiff in respect of his low-back injury I take into account what capacities he has retained despite the injury to his lower back. I have dealt with these matters in the course of these reasons.
109 I have taken into account the considerations set out in the cases of Haden Engineering Pty Ltd v McKinnon[61] and Sutton v Laminex Group Pty Ltd[62] to determine the impact of pain and the extent of it on the plaintiff in this case. Ultimately, the decision I am required to make is a value judgment in which matters of fact and degree are to be taken into account when making an assessment of the total consequences to the plaintiff arising from his injury to the lower back.
[61](2010) 31 VR 1
[62][2011] VSCA 52
110 I conclude that taking into account the consequences as I have found them to be, that they are not of such a level to be properly described as being “very considerable”, either separately, individually or collectively as a group. I am not satisfied that the plaintiff’s impairment as a result of the injury to his low back is more than significant or marked and properly described as being at least very considerable.
111 The application for serious injury certification by the plaintiff is dismissed.
112 I will hear the parties on the question of costs.
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