Ziegenbein v Victorian WorkCover Authority
[2016] VCC 791
•20 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03182
| ROBERT ZIEGENBEIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 May 2016 | |
DATE OF JUDGMENT: | 20 June 2016 | |
CASE MAY BE CITED AS: | Ziegenbein v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 791 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pre-existing degenerative condition in the cervical spine and lumbar spine – aggravation of pre-existing degenerative condition – whether impairment consequences with respect to pain and suffering are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Petkovski v Galletti (1994) 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Bezzina v Phi [2012] VSCA 161; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Plaintiff granted leave to bring a proceeding at common law to recover damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr G Chancellor | Maurice Blackburn Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff is a fifty-six-year-old married man who was born in March 1960. He suffered injury to his neck and lower back as a result of work which he performed as a sonographer with MIA between February 2002 and March 2014.
2 The plaintiff submitted that he has suffered a serious permanent impairment of the function of his spine. The application is limited to the pain and suffering consequences resulting from that impairment.
3 Mr J Mighell QC appeared with Mr G Chancellor of counsel for the plaintiff. Mr C Miles of counsel appeared for the defendant.
The issues
4 Counsel for the defendant conceded that the loss of function suffered by the plaintiff can properly be described as an impairment of “spinal function”. On my analysis of the radiological studies and the medical evidence, I consider that that concession was properly made.
5 The first issue is whether the present impairment of function of the plaintiff’s spine is due to the pre-existing condition of his spine, and whether it either bears no, or little, relationship with any aggravation of that condition.
6 The second issue concerns the pre-existing condition of the plaintiff’s spine, and whether the aggravation of that pre-existing condition alone has resulted in impairment consequences which are “serious”.[1]
[1]Petkovski v Galletti (1994) 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386 and Bezzina v Phi [2012] VSCA 161
7 The third issue is whether the plaintiff suffered a further aggravation after he left the employ of MIA in 2014 which has contributed to the level of his present impairment of function.
8 Counsel for the defendant conceded that there is no issue concerning the creditworthiness and reliability of the plaintiff.
The Plaintiff’s evidence
9 The plaintiff obtained university qualifications in science and education by 1986. He subsequently worked as a scientist at a hospital, and later performing vascular ultrasounds. He completed a further qualification in 1992, and by 1995, he commenced working as a sonographer and scientist at the Monash Medical Centre.
10 The plaintiff commenced employment with MIA in February 1992 as a vascular ultrasound technician. As MIA conceded that the plaintiff suffered a compensable injury, I am not required to examine, in any particular detail, the tasks which the plaintiff undertook as a sonographer. It is sufficient to note that he set that out in some detail in his first affidavit, and later described it in his oral evidence. None of that evidence was controversial.[2] The plaintiff suffered stress on his spine due to the repetitive nature of the tasks he was required to undertake as a sonographer, and the awkward posture which he was required to adopt in undertaking those tasks.
[2]Plaintiff’s Court Book (“PCB”) 10
11 The plaintiff believed that he saw one of his general practitioners at the Eramosa Family Medical Clinic in 2005 complaining of lower back pain.[3] His belief was based upon the fact that he was referred to Dr Findeisen, rheumatologist, who referred him to have a CT scan, which was undertaken on 20 July 2005.[4]
[3]PCB 10
[4]PCB 64a
12 Counsel for the defendant referred the plaintiff to the clinical notes of his general practitioners for the purpose of pointing out that the first entry in those clinical notes of any complaint of lower back pain was on 28 April 2010. The plaintiff saw Dr Zail, who noted that the plaintiff was bending over a patient performing an ultrasound when he experienced aching and tightness in his mid-back and some ache in his mid-lumbar spine. The rest of the entry discloses that after the initial experience of pain, it spread into his right buttock and radiated down the lateral side of his left leg to his ankle.[5]
[5]Defendant’s Court Book (“DCB”) 29-30
13 I have read the clinical notes from the first entry in 2005 through to the entry of 28 April 2010. There is no other entry noting a complaint of lower back pain. When the plaintiff was exposed to the content of the clinical notes, it appeared to me that he was surprised that there was no such entry. He added that he was referred to Dr Findeisen, which he believed occurred through a referral from one of his general practitioners. Interestingly, the plaintiff did see Dr Findeisen, because the radiologist who undertook the CT scan on 20 July 2005 noted that the referrer was Dr Findeisen. The CT scan was taken of the plaintiff’s lumbar spine.
14 Perhaps the explanation lies in the fact that the CT scan was undertaken by the plaintiff’s employer, MIA, and maybe he was referred to Dr Findeisen through some internal process rather than through one of his general practitioners. However, he came to be under the care of Dr Findeisen and he did have a CT scan of his lumbar spine which satisfies me that he was experiencing pain in his lumbar spine.[6]
[6]There is no report from Dr Findeisen
15 The CT scan demonstrates disc bulging at L3-4 and L4-5. The disc bulge at L4-5 was in contact with the exiting L4 nerve root without causing compression. At L5-S1, there was calcification of the disc and some osteophyte formation which appears to be degeneration of the spine at that level.
16 The plaintiff had some weeks off work initially before experiencing improvement sufficient to allow a return to work. He then experienced intermittent low back, buttock and upper leg pain, which was aggravated by his work tasks and the awkward posture he needed to adopt to perform those tasks.[7]
[7]PCB 10
17 In about 2007, the plaintiff began experiencing neck pain and stiffness. By 2009, the initial neck pain and stiffness progressed to pain radiating from his neck into his left shoulder, left upper arm and he experienced a tingling sensation in his left hand.[8] He saw Dr Zail on 1 October 2009. He told Dr Zail that over the past few years, he had experienced neck pain and tightness and, more recently, a tingling sensation in his hand and a burning sensation in his left shoulder and upper arm.[9]
[8]PCB 11
[9]PCB 11 and DCB 27
18 Dr Zail referred the plaintiff to have an x-ray of his neck which was undertaken on 2 October 2009. It demonstrated degenerative changes from C3 to C7.[10] The plaintiff was referred to physiotherapy. He was prescribed Mobic, which I understand to be an anti-inflammatory medication. It would appear that this treatment was directed to the plaintiff’s neck, and not his lower back. The plaintiff’s work continued to aggravate his neck condition. A workplace assessment was undertaken by a physiotherapist, who recommended some changes to the plaintiff’s work practices. The plaintiff was later referred to Dr Gassin, physician, for treatment. He recommended that the plaintiff have physiotherapy and undertake walking, presumably for exercise.[11]
[10]PCB 64b
[11]PCB 11
19 In April 2010, the plaintiff developed upper and mid-back aching and tightness. He also experienced lower backache when he leant over patients while performing ultrasound examinations. He experienced an increase in lower back pain and developed right buttock and leg pain and a sensation of weakness in his right leg. He saw Dr Zail on 28 April 2010. He went off work for about one week before returning for two days a week performing four hours’ modified duties. He gradually increased his hours of work, and by July 2010, he was able to return to full-time work without restriction.
20 It would appear that between April 2010 and about mid-2011, his lower back was his dominant problem. He had some physiotherapy and chiropractic treatment, although it was also provided for his persisting neck problem. He was provided with prednisolone and Panadeine Forte for pain relief.[12]
[12]PCB 12 and DCB 29-30
21 Dr Crow referred the plaintiff to have an MRI scan which was undertaken on 21 January 2011. It demonstrated widespread degeneration from the lower thoracic spine and the lumbar spine, except at L2-3, and minor disc bulges from L1 to S1. At L5-S1, the posterior disc protrusion indented the thecal sac, resulting in some minimal mass effect on the exiting right S1 nerve root. The radiologist considered that there was a maximal level of degenerative change at L5-S1, disc protrusions at each of the levels just referred to and a moderate posterior disc protrusion at L5-S1.[13]
[13]PCB 65-66
22 The plaintiff had physiotherapy and massage treatment. He used painkilling medication intermittently. He took some long service leave in mid-2011. After he returned from leave, he found that the pain in his neck and lower back worsened. He was using Panadeine Forte at that stage for pain relief.
23 Dr Honig referred the plaintiff to Dr Lovell, spinal physician. The plaintiff first saw him in September 2011. The plaintiff told Dr Lovell that he had suffered an acute episode of lower back pain five years previous. That seems to be consistent with the plaintiff’s recollection of first suffering lower back pain at about 2005. However, Dr Lovell’s treatment of the plaintiff was directed to his neck. He told Dr Lovell that he was experiencing a tingling sensation and associated shooting pains in his left arm with a numb feeling in the fingers of his left hand.
24 Dr Lovell provided the plaintiff with medial branch blocks in February 2012 from C5-6 to C3-4 which gave him some pain relief.[14] In May 2012, he performed cervical radiofrequency neurotomies at the same levels of the plaintiff’s neck.[15] The plaintiff experienced limited improvement with his neck pain.
[14]PCB 53
[15]PCB 51
25 The plaintiff’s general practitioners at the Eramosa Family Medical Clinic provided a number of medical reports summarising the treatment provided to the plaintiff. None of what is contained in those medical reports is controversial. What the reports do provide is a narrative of the treatment provided to the plaintiff for his neck and lower back injuries.[16] He has been prescribed Lyrica, Endep and Panadeine Forte for pain relief. I will return to the plaintiff’s use of that medication later in these reasons.
[16]PCB 21-40
26 The plaintiff was referred to Mr Goldschlager, neurosurgeon, on 3 December 2015. He was provided with the earlier radiology. It would appear that he referred the plaintiff to have MRI scans of his neck and lower back, and also a bone scan of his neck.[17]
[17]PCB 62
27 Mr Goldschlager last saw the plaintiff on 28 January 2016. On that occasion, he considered that the plaintiff had spondylosis of his neck region. He referred him to have further facet joint injections, and also to a neurologist for an opinion regarding the headaches he was suffering. He considered that the plaintiff suffered from headaches of an unknown aetiology, cervical facet arthropathy, lumbar facet arthropathy and cervical and lumbar spondylosis. He was unable to provide a prognosis, because he considered that the symptoms experienced by the plaintiff might improve with medication, physiotherapy and injections.[18]
[18]PCB 63-64
28 At the time of the hearing, the plaintiff had not had any further injections nor any physiotherapy. He was taking Panadeine Forte two to three times per week, taking one tablet on those occasions. He had resumed taking Endone from April 2016, taking one tablet at night. His resort to Endone was intermittent. Before recommencing its use in April 2016, he had stopped using it for a period of time.
The medical assessments
29 Dr Zail provided a report dated 18 August 2013. He considered that the plaintiff had suffered injuries to his neck and lower back resulting from his work. He provided a subsequent report in 2016, and his colleague, Dr Shoenmakers, provided two subsequent reports. The subsequent reports do not condescend to an express opinion on causation, but it is reasonable to infer that both Dr Zail and Dr Shoenmakers were of the same opinion on causation.
30 The plaintiff was examined by Mr Bittar, neurosurgeon, on 23 March 2016. He considered that the plaintiff had suffered an aggravation of cervical spondylosis resulting in neck pain, left arm pain and cervicogenic headaches. He also considered that the plaintiff had suffered an aggravation of lumbar spondylosis resulting in low-back pain and left leg pain. He considered that the plaintiff’s employment was a cause of the development of the aggravation of those conditions, and in particular, because of the repetitive and awkward tasks which he performed. He considered that the plaintiff had a compromised capacity for work, and that residual capacity was unlikely to improve in the future.[19]
[19]PCB 71-72
31 Mr Kossman, orthopaedic surgeon, examined the plaintiff in April 2016. He considered that the plaintiff had suffered discogenic and mechanical pain in his neck and lower back, and a possible scalene entrapment syndrome on the left side which resulted from his employment with MIA.[20] He considered that the plaintiff’s prognosis was guarded, and that he would continue to suffer pain in his neck and lower back which would require treatment with medication, physiotherapy, hydrotherapy and possibly acupuncture. He considered that the plaintiff had a capacity for work, and it would appear that he gave that opinion based upon his understanding that the plaintiff was able to regulate his hours and work duties.[21]
[20]The scalene muscles are a group of three pairs of muscles in the lateral neck
[21]PCB 77-79
32 Mr Reid, surgeon, examined the plaintiff for the defendant on 20 May 2010. He only commented on the plaintiff’s lower back injury. He considered that the plaintiff had suffered an injury to his lower back with symptoms suggestive of nerve root compression bilaterally. He considered that the injury resulted from the plaintiff’s employment with MIA. Mr Reid’s examination of the plaintiff was limited to an assessment of whether the plaintiff had suffered a compensable injury and the defendant’s liability for no-fault payments.[22]
[22]PCB 82-84
33 Mr Scott, surgeon, examined the plaintiff for the defendant on 15 April 2014. He considered that the plaintiff had suffered an aggravation of degenerative changes in his neck with mild persistent left upper limb radiculopathy, and an aggravation of degenerative changes in his lower back with symptoms of intermittent lumbosacral nerve root irritation. He did not express any opinion regarding the plaintiff’s prognosis. His report was otherwise directed to an impairment assessment.[23]
[23]PCB 90-91
34 Mr Dooley, orthopaedic surgeon, examined the plaintiff for the defendant on 28 May 2015. He considered that at times, the plaintiff had suffered an aggravation of age-related degenerative disc disease in his neck and lower back. He did not find any neurological deficits on examination. He considered that the plaintiff’s spinal condition could be self-managed.[24] He was subsequently asked whether the plaintiff had suffered an aggravation and/or a permanent aggravation of the degenerative changes in his neck and lower back. He did not answer that question directly, but he did say that the awkward postures adopted by the plaintiff would aggravate the degenerative changes resulting in intermittent pain.[25]
[24]DCB 3-4
[25]DCB 7
35 Mr Dooley re-examined the plaintiff on 10 February 2016. He was provided with the MRI scans of the plaintiff’s neck and lower back taken in December 2015. His opinion on this occasion did not change from his earlier opinion that the awkward postures would aggravate the degenerative changes resulting in intermittent pain. He considered that the plaintiff needed to remain active and undertake low impact exercises. He also considered that it would be reasonable for the plaintiff to “explore” treatment options such as facet joint injections and facet joint ablation, among other forms of treatment.[26]
[26]DCB 10-11
36 I am satisfied that each of the above medical practitioners had a reasonable understanding of the work that the plaintiff undertook between 2005 and 2014 to be able to express an opinion on causation. I am also satisfied that there is a consistency in their opinions. Essentially, the preponderance of their opinions is that the plaintiff had pre-existing degenerative changes in his neck and lower back, and I think that is very evident from the radiological studies. Furthermore, each of them are satisfied that the plaintiff suffered an aggravation of those degenerative changes. Mr Dooley may be the exception, to the extent that he did not consider that the plaintiff had suffered an aggravation which then produced ongoing pain and disablement.
37 Some of the opinions suggest that the plaintiff suffered a discal injury to his lower back.[27] That diagnosis is consistent with the opinions of Mr Bittar, Mr Kossman, Mr Scott, Mr Goldschlager and Mr Dooley. Whilst the pain radiating from the plaintiff’s neck into his left shoulder and arm with the tingling sensation in his left hand, and the pain radiating from his lower back into his left buttock and leg might suggest some nerve root compression, I prefer the general diagnoses that the plaintiff suffered an aggravation of degenerative changes in his neck and lower back.
[27]Dr Zail at PCB 32-33; Dr Lovell at PCB 56, and Mr Reid PCB 83
An aggravation
38 Prior to 2005, when the plaintiff first experienced pain in his lower back, he had evidence of degenerative changes in his lower back which were asymptomatic. I accept that it was as a direct result of this work that he suffered an aggravation of those degenerative changes. I also accept that the initial pain he experienced persisted. By 28 April 2010, when he saw Dr Zail, the pain had increased to the point where he made the decision to seek medical treatment. It was at that time that Dr Zail recorded that the plaintiff was experiencing aching and tightness in his mid-back and some aching in his mid-lumbar spine, with pain spreading into his right buttock and radiating down the lateral side of his left leg to his ankle.
39 Prior to 2007, when the plaintiff first experienced pain in his neck, he had evidence of degenerative changes in his neck which were asymptomatic. I accept that it was as a direct result of the work the plaintiff performed that he suffered an aggravation of those degenerative changes. I also accept that the initial pain he experienced persisted. By 1 October 2009, when he saw Dr Zail, the pain had increased to the point where he made the decision to seek medical treatment. It was at that time that Dr Zail recorded that the plaintiff had been suffering neck pain, tightness in his neck and a tingling sensation in his left hand and a burning sensation in his left shoulder and upper arm.
40 I accept that as a direct result of the aggravation of the degenerative changes in the plaintiff’s neck and lower back, that he suffered a number of consequences which he had not previously suffered. In summary, I accept that he has suffered the following consequences:
· Pain in his lower back from 2005 which became more pronounced and persistent from 2010.
· Pain in his neck from 2007 which became more pronounced and persistent from 2009.
· Pain radiating from his lower back into his left buttock and leg from 2010.
· Pain radiating from his neck into his left shoulder and arm.
· Lower back pain that is consistent with a pushing, gripping sort of pain as if someone had grabbed a handful of his back and was squeezing it.
· Interference with his sleep. There was some evidence that the plaintiff had previously had difficulty with his sleep for which he was prescribed medication. However, that difficulty appears to have resolved itself. The interference with sleep which the plaintiff now complains is directly associated with the spinal pain he experiences at night, and not with any pre-existing condition.
· The condition of his neck and lower back are aggravated by the work he performs in removing the ultrasound machine from his car, and then returning it to his car, and the awkward posture which he needs to adopt in order to effectively undertake ultrasound examinations.
· He resigned from his employment with MIA, specifying that one of his reasons for doing so was to obtain relief over the longer term from the problems he was experiencing with his neck and lower back.
· He used Lyrica, Endep and Panadeine Forte for pain control. He ceased using Lyrica. He uses Endep intermittently. As recently as April 2016 he resumed his use of Endep and he continues to use Panadeine Forte. The extent of the plaintiff’s use of medication needs to be seen in the context of his evidence, that he is someone who reluctantly resorts to the use of medication.
· He self manages his spinal pain by applying heat packs, using a spa or a hot shower, and when the pain is severe, he lies down, rests or sits in a recliner chair.
· The intensity of the pain is affected by movements, such as bending, lifting, sitting, driving and running.
· The plaintiff last engaged in a formal running event in 2004, but continued jogging after this to maintain his health. He has a history of heart disease in his family and is conscious to maintain fitness and control over his weight to minimise the risk of serious heart problems.
· He is able to drive a car for an hour before he suffers an increase in spinal pain. For example he is able to drive to Wonthaggi which is about 100 kilometres from where he lives and is about a one-hour drive. He is able to drive each way to meet his clinical commitments to patients in Wonthaggi.
· His long interest in woodworking is limited to undertaking it for about 30 minutes at a time. He has woodworking equipment at his home. He joined a woodworking club about two or three years ago. He attends at the club on Thursday nights. Woodworking was something of a substitute recreation for the plaintiff because he is no longer able to engage in jogging. He is not able to undertake woodworking to the same extent as he did before because using hand tools and bending results in tightening and soreness in his shoulders and neck.
· He is able to engage in levels of gardening and home maintenance, although his son assists him where heavy lifting is involved or where he needs to undertake home maintenance work, such as painting or moving things around his property. He uses a ride-on mower, but does not use a recently purchased hand mower. His wife uses the hand mower to mow close to their house.
41 Counsel for the defendant cross-examined the plaintiff about his capacity to engage in the domestic and recreational activities which the plaintiff said have been affected by the spinal injury. He emphasised that the plaintiff has been unable to travel to Europe, Asia and interstate for pleasure, and interstate to pursue his professional interests in sonography. He submitted that I should accept that the plaintiff is able to engage in those activities to some extent, and therefore, still has a level of enjoyment of life consistent with what he enjoyed before he was injured.
42 The main thrust of the attack made by counsel for the defendant was the plaintiff’s capacity to work. It is clear that at various times the plaintiff has had time off work, but has always returned to full-time work and full hours. His income position demonstrates that he is now doing better financially than he was when he was employed by MIA. For example, in the financial year ending 30 June 2014, he earned $121,599 gross. In the following financial year, he earned $190,405 gross.
43 Counsel for the defendant submitted that the plaintiff is doing the same work involving the same physical tasks now as he was before he was injured, and since he has been injured. However, he emphasised that the plaintiff is obviously doing more, and this is shown by his increasing gross income. Despite this, the plaintiff gave me the strong impression that he is finding the volume of his work physically difficult because he now wants to reduce his workload by adjusting what he does during the working week. Further, he is considering employing a sonographer to take up some of his workload.
44 Before turning to whether I consider the impairment consequences are “serious”, I will deal with each of the other issues raised by counsel for the defendant.
The other issues
45 The first issue: there is no doubt that the plaintiff had evidence of degeneration in his neck and lower back. With respect to his lower back, he had not experienced any significant problem prior to 2005. With respect to his neck, he had not experienced any significant problem prior to 2007. What is very patently evident is that the extent of the aggravation was so substantial that it produced each of the impairment consequences which I have set out above. The conclusion I have reached is that it is the aggravation alone which has caused the injury impairing the function of the plaintiff’s spine, and resulting in those impairment consequences.
46 Inherent in the conclusion I have just referred to is an acceptance of the opinions of Dr Zail, Mr Bittar, Mr Kossman, Mr Reid and Mr Scott, and a rejection of the opinion of Mr Dooley. Mr Dooley appears not to have accepted the history given to him by the plaintiff regarding the onset and persistence of symptoms of spinal pain. Rather, he appears to have worked on the basis that the plaintiff’s work was likely to cause him the type of symptoms that most people of his age would suffer, they being intermittent aggravations which would settle.
47 I have dealt with the first part of the second issue separately above. I will deal with whether the impairment consequences are serious below, though before this, I will deal with the third issue. I think it is abundantly clear that by the time the plaintiff was treated by Dr Lovell, that he had a clearly diagnosable medical condition affecting his neck and lower back, and to some extent his mid-back. The radiological studies which were available by 2011 demonstrate the extent of the degenerative changes in the plaintiff’s neck and lower back. They provided a basis upon which a diagnosis could be made by Dr Zail, Mr Bittar, Mr Kossman, Mr Reid and Mr Scott. Most importantly, Mr Reid examined the plaintiff in 2010 and was able to diagnose injuries to the plaintiff’s neck and lower back which appear to me to be broadly consistent with diagnoses made later by other examiners.
48 It occurs to me that the injuries to the plaintiff’s neck and lower back were well-established before the plaintiff commenced self-employment as a sonographer in 2011. There is no medical evidence to suggest that the plaintiff’s spinal injuries are now different in some material way, or that there are any events which constitute intervening causes which have added some extra pathological process for which the defendant is not responsible.
49 Counsel for the defendant referred to occasions when the plaintiff suffered an increase of symptoms, presumably to demonstrate that there are potentially intervening causes which may have added some extra pathological process. He referred to the plaintiff slipping at home;[28] bending over to pick up bags from a floor;[29] a flare-up while using his ride-on mower, [30] and suffering a flare-up at his home.[31] The plaintiff was cross-examined about those occasions.[32] None of those occasions strike me as being of any particular importance except to demonstrate that the plaintiff was suffering from a symptomatic spinal condition which would cause him increased pain whilst engaged in relatively innocuous activities.
[28]DCB 41
[29]DCB 54
[30]PCB 12
[31]PCB 13
[32]Transcript 16-18
Are the impairment consequences “serious”?
50 I will now turn to the second part of the second issue, that is, whether the impairment consequences are “serious”.
51 There is a superficial attraction in finding that a worker does not have a serious injury where the worker has the capacity to work full time in pre-injury employment. That circumstance would tend to suggest that the worker has retained a significant physical capacity, especially where the tasks of the work undertaken by the worker are physically stressful. However, Nettle JA (as he then was) made an observation which I think is equally applicable to the plaintiff. In Dwyer v Calco Timbers Pty Ltd (No 2),[33] his Honour observed that it would be:
“…wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[33][2008] VSCA 260 at paragraph [3]
52 The particular facts of Dwyer are very instructive. Although, Dwyer suffered a different injury to the plaintiff, he had returned to physically arduous work as an earthmoving contractor. Ashley JA did not consider that to be the end of the matter for Dwyer. It was no doubt a factor which his Honour weighed into the balance when assessing what the plaintiff had lost, and what he had retained.
53 I accept the plaintiff’s evidence without hesitation that performing his work is made difficult because of the condition of his spine, and the fact that undertaking the relevant tasks of his workplace stress on his already damaged spine, in turn producing more pain. I also accept that the plaintiff is a highly motivated man. I think that is made abundantly clear by the fact that he has worked hard as an employee, worked hard in his private practice, and has devoted time, without payment, to assessing students and in general professional development. I think he can be properly characterised as a stoic, and indeed, I think that Nettle JA was referring to stoicism when he referred to workers who have not resigned themselves to the injury. I think it is clear that the plaintiff would not resign himself to his injury, but has soldiered on. However, his concerns to adjust the work he does, and to take on an employee, point to the plaintiff arriving at a decision that the spinal injury is impacting more on his capacity to work than it did previously.
54 Otherwise, the plaintiff has unquestionably suffered a permanent impairment of the function of his spine. That is consistent with the medical opinions which I prefer. He has and will suffer persistent pain; interference with his mobility; interference with sleep, and interference with domestic and recreational activities, in particular, jogging which was a major interest for him. The fullness of the life he had is now denied to him. As Ashley JA observed in Dwyer, the fact that some activities are not denied to the plaintiff “… is part of the story, but a part only”.[34]
[34]At paragraph [28]
55 I am not persuaded that what the plaintiff has retained tells against an affirmative conclusion in the plaintiff’s favour that the impairment consequences, which I accept he has and will suffer, are serious. In reaching that conclusion, I have considered like impairments as the authorities require me to do.
Conclusion
56 In conclusion, I grant the plaintiff leave to bring a proceeding at common law to recover damages for pain and suffering.
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