Zwart v Visy Packaging Pty Ltd
[2016] VCC 755
•7 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-15-02826
| JONATHAN ZWART | Plaintiff |
| v | |
| VISY PACKAGING PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2016 | |
DATE OF JUDGMENT: | 7 June 2016 | |
CASE MAY BE CITED AS: | Zwart v Visy Packaging Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 755 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lower back – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Transport Accident Commission v Dennis (1998) 1 VR 702; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan | Adviceline Injury Lawyers |
| For the Defendant | Mr C O’Sullivan | Thomson Geer |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant on 10 February 2009 (“the said date”).
2 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
3 The body function relied upon in this case is the lumbar spine.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
11 The plaintiff relied upon two affidavits and gave viva voce evidence. He also relied on an affidavit from a friend, Michael Youngberry, sworn on 24 March 2016, and his partner, Linda Sherie Murray, sworn on 14 April 2016. In addition, the parties relied on medical reports and other material tendered in evidence.
The Plaintiff’s evidence
12 The plaintiff is presently aged fifty-two, having been born in November 1963. He lives with his partner, Linda.
13 Having left school in Year 11, the plaintiff worked as a labourer, a machine setter for a screening company and as a landscape gardener.
14 On 17 October 1988, the plaintiff started work for the defendant, then known as J Gadsden. Whilst in that employ, he also studied for a Bachelor of Mechanical Engineering and later, an Advanced Diploma of Engineering at TAFE, but did not complete either course.
15 The plaintiff worked for the defendant for about twenty five years as a machine and tool-setter. His duties involved setting high-speed pressing machines, which made lids for tin or aluminium cans. His job involved a lot of lifting, twisting, bending and getting into awkward positions.
16 Prior to the said date, the plaintiff had suffered minor injuries, but had not had any problems with his lumbar spine.
17 On the said date, the plaintiff felt a strange sensation and pain in his lower back and between his shoulder blades, when he found it awkward putting a tool box down onto the ground.
18 The following morning, the plaintiff felt lower back pain when he went to remove his toolbox from his locker. He reported his injury to the defendant and arrangements were made for him to see its doctor, Dr Slesenger, who gave the plaintiff a certificate for light duties and referred him for physiotherapy.
19 A few days later, the plaintiff lodged a Claim for Compensation in which he described having suffered back strain, and felt pain in the back when lifting a toolbox on 10 February 2009 (“the incident”).
20 Following the incident, the plaintiff did not have any time off work. He went back to lighter work on full-time hours.[3] His duties were restricted to quality control type work and general housekeeping and administrative duties. Pre-incident, his duties mainly involved maintaining and repairing production machinery and equipment. There were other tasks, like quality control and inspections. His whole day and his predominant duty was looking after the machinery.[4]
[3]Transcript (“T”) 11
[4]T10
21 The plaintiff saw Dr Slesenger two or three times a week for a month. A CT scan was arranged in March 2009.
22 That month, the plaintiff attended his general practitioner, Dr Williams, at the Evans Street Clinic (“the Clinic”), who referred him to Mr Bartram, physiotherapist. Initially, the plaintiff’s upper back symptoms improved, but he continued to have problems with his lower back. Another general practitioner at the Clinic sent him for a further CT scan.
23 There was a flare up of back pain in about June 2009, after the plaintiff was using a steel bar to turn a flywheel (“the flare up”). The plaintiff’s general practitioner referred him to Mr Morokoff, neurosurgeon.
24 There was another CT scan of the plaintiff’s lower back in June 2009 and Mr Morokoff also arranged an MRI scan, which took place in October that year. Following receipt of the MRI, Mr Morokoff recommended conservative treatment and told the plaintiff to use a back brace at work. In about September 2009, the plaintiff brought a new bed to help with his back pain and obtained a lower back brace.
25 Dr Williams reduced the plaintiff’s hours to five hours a day after the flare up. The plaintiff continued doing quality control and general housekeeping duties. During this time, he was looking for somewhere to lie down after a few hours but there was no suitable facility at the factory.[5]
[5]T11
26 The plaintiff continued with physiotherapy and exercise, and his hours were gradually increased over a few months, maybe four or five months, from five to six hours in November 2009, seven hours in March 2010, and then eight hours. He was still doing quality control type work and light mechanical work, as well as some training.[6]
[6]T12
27 The plaintiff continued to receive certificates of incapacity until February 2011, when the defendant decided to withdraw his duties and sent him home. The plaintiff then saw Dr Hocking on 14 February 2011.[7]
[7]T12
28 The plaintiff agreed he then told Dr Hocking that he had mild pain in his lower lumbar midline, with good and bad days, and the pain did not interfere with his activities. He could sit and stand for an hour and walk up and down stairs freely, do car maintenance, mow lawns, and the pain did not stop him sleeping. He was doing home exercises and occasionally took two Panadol for pain relief.[8]
[8]T20
29 The plaintiff explained he would have agreed he could “play a game of AFL football” if it was suggested to him then, because he was in fear of losing his job.[9]
[9]T20
30 Dr Hocking did a worksite assessment on 15 February 2011, removing hazardous lifting. It was agreed that the plaintiff would be able to do his pre-injury duties, with some modification, so the plaintiff stopped providing certificates.[10]
[10]T13
31 The plaintiff agreed his duties were then a bit lighter but he was doing a normal setter’s job from that time with no restrictions. It was just his old job, working full time as a setter. He continued working on this basis right up until the voluntary redundancy in November 2013.[11]
[11]T19
32 The plaintiff agreed that he only saw his general practitioner once before taking the redundancy, and that was on 12 March 2013 and next saw him in May 2015.[12]
[12]T19
33 In re-examination, the plaintiff confirmed he told Dr Carr on 14 April 2011 that he had lower back pain, he felt he needed a few days’ rest and did not want to re-open WorkCover, as he thought he would get fired. If he gave any indication whatsoever of his back injury, the plaintiff thought the defendant would start proceedings against him to get rid of him.[13]
[13]T44
34 In re-examination, the plaintiff confirmed his fear of losing his job. He had been the senior union delegate for many years, and he knew how the defendant dealt with WorkCover recipients. He was in fear the defendant was trying to get rid of him and using his certified restrictions to justify doing so. He could do his job with the modifications that had been made such as the introduction of the mobile trolley, the new procedures for lifting and the use of more lifting devices, so it was no longer a requirement for anyone to lift more than 12 or 15 kilograms.[14]
[14]T40
35 The plaintiff disagreed that he was “happy enough” to take the redundancy and leave his job. The redundancy was not forced on him. He had not looked for any job since. He has pursued interests that he was already pursuing to a greater degree.[15]
[15]T21
36 The plaintiff took a redundancy because he had had enough. He could not take it anymore. The defendant was constantly at him, trying to get rid of him. The plaintiff had won an adverse action claim against the defendant in the Federal Court and they had their “eagle eye” on him. He was working under extreme pressure and his back was getting worse, so he saw the redundancy as a way out.[16]
[16]T46
37 In the last twelve months of work, the plaintiff’s back was becoming progressively worse. He was finding it increasingly difficult and quite a struggle as he was doing a lot of project-type work which involved a lot of bending, or being stooped in awkward positions, and getting under machinery.[17]
[17]T45
38 The plaintiff was finding it hard to straighten up after working under the machines and, at the end of the day, he was “just spent.” His back pain was restricting his musical activities.[18]
[18]T46
39 The plaintiff really enjoyed working as a setter. He was good with tools. He was very upset he could not return to this career as the work is too heavy for him.
40 The plaintiff could not do the work again, or any sort of work because of his back, so he has not applied for work since the redundancy. He is devastated as he had been doing that sort of work since he left school and it was work that supported him and his family.[19]
[19]T47
41 The plaintiff applied for a part time job with 3PBS-FM as an interview coordinator. He was offered a job last year fixing and repairing old vinyl record pressing equipment, but could not do it because of his back.[20] He cannot do heavy lifting, pushing and pulling or carrying tools around.[21]
[20]T42
[21]T48
42 In cross-examination, the plaintiff was shown a page from the StarNow website, a talent directory for people working in music and film, where jobs could be posted and applied for.
43 The plaintiff wanted to apply for a paid recording position shown on that site on a short film, for two weeks. He would like to get more sound recording work and get his business up and running, making money. He would do more hours recoding if he could get them.[22]
[22]T37
Recent treatment
44 In 2013, Dr Williams was prescribing Tramadol and Celebrex, although the Tramadol made the plaintiff ill and he ceased taking it.
45 From about July 2014, when the plaintiff moved house, he saw a general practitioner, Dr Desai, at Mt Evelyn Medical Clinic, about every two months. Primarily Dr Desai treated the plaintiff his diabetes and cholesterol, and gave him prescriptions for Celebrex and Panadeine Forte.
46 The plaintiff discussed his back pain with Dr Desai to obtain prescriptions for Celebrex. He asked Dr Desai if he could take on WorkCover and Dr Desai wanted to make sure treatment would be funded. QBE advised the plaintiff’s claim was inactive, so the plaintiff went to see Dr Lajoie, because he was the last doctor he had seen in relation to his claim.[23]
[23]T25
47 In about May 2015, the plaintiff started seeing Dr Lajoie at the Clinic approximately monthly. He managed the plaintiff’s work-related injury and provided him with certificates. The plaintiff told him that things were getting pretty bad. He was fifty-two and could barely walk and was worried what he was going to be like in ten years.[24] At that time, the plaintiff was taking two Panadol tablets a week.[25]
[24]T26
[25]T19
48 The plaintiff then saw solicitors as he was advised he should make a new WorkCover claim and Dr Lajoie issued him with a certificate. QBE advised the new claim was going to be rejected and the plaintiff subsequently withdrew it.[26] He understands his chemist bills submitted to QBE still have not been paid.[27] The claim has not been denied or accepted.[28]
[26]T25
[27]T27
[28]T27; a print-out of these chemist expenses was tendered
49 In about February 2016, the plaintiff was referred by Dr Desai to a psychologist, Ms Cleland, for treatment after he was showing signs of depression and anxiety. He sees her once a month on average.
50 The plaintiff currently takes one Celebrex tablet a day and two Panadeine Forte probably five days a week. Celebrex does not seem to have the same effect as it once did.[29]
[29]T47
51 The plaintiff suffers from ongoing pain in his lower back and both legs. He experiences an intermittent shooting pain that runs down both legs almost daily.
52 The plaintiff’s pain has been progressively worsening. When he swore his first affidavit on 3 February 2015, the plaintiff described less frequent pain and pain in one leg only as that was the case at that time. His condition now involved both legs and that was why he was seeking treatment from Dr Lajoie.
53 The plaintiff also suffers from fluctuating numbness from his waist down and into his right toe, which occurs approximately two or three times a week.
54 About once a week, the plaintiff has a flare up of pain, which usually occurs after some form of activity, such as playing his guitar in his band. When a flare up occurs, he has to spend the next couple of days resting to recover.
55 The plaintiff usually feels some sort of pain as soon as he sits down. After thirty minutes to an hour, he needs to get up and move around as he can no longer tolerate the pain. He manages to stand for between half an hour and forty-five minutes and then needs to move around.
56 The plaintiff is not seeing any physiotherapist and he has not been back to another neurosurgeon or orthopaedic surgeon, but was working on it.[30]
[30]T30
57 The plaintiff continues to find it difficult to run, kneel, squat, lift heavy things and do repeated bending movements.
58 Before the incident, the plaintiff used to cycle about once a month for exercise and to get around. Since the incident, he has found it difficult cycling on his racer as being in a stooped position aggravates his back. He agreed he was not a great bike rider before the injury and did not know how far he used to ride. He agreed bike riding was not a serious hobby.[31]
[31]T31
59 Before the incident, the plaintiff enjoyed two to three-hour bushwalks several times a week. Now, after walking for about half an hour, he gets increased back and leg pain.
60 Before the incident, the plaintiff really enjoyed landscape gardening, especially the garden at his Sunbury property where he did a lot of work. He left there in 2009. Since the incident, the plaintiff has found it difficult to do any landscaping and is now able to do limited general gardening. He mows the lawns, does the weeding and trims the tress. He takes breaks whilst doing these activities.[32]
[32]T23
61 Before the incident, the plaintiff was in the process of building an off-road racing buggy. He had to abandon that project because of his injury and did not believe he would have been able to use the buggy if he had completed it because of his back pain.
62 The plaintiff struggles to sleep at night and wakes up at least once a night. On a bad night, he finds it difficult to get to sleep. His lack of sleep and ongoing disrupted sleep causes him a lot of tiredness during the day. He has been having a lot of difficulty just getting to sleep two or three times a week because of pain.[33]
[33]T47
63 If the plaintiff does not empty his bowels once per day, he suffers from increased back pain. In cross-examination, he agreed with the general proposition that from day-to-day, he could find a toilet and go when he needed to.[34]
[34]T32
64 The plaintiff’s sex life continues to be restricted by back pain.
65 For the past few months, the plaintiff has suffered from depression and anxiety and, for a period of time, he was also having occasional suicidal thoughts. He felt sad most days, unmotivated and low in energy.
66 The plaintiff’s back pain has really brought him down and he finds it hard not being able to continue to do a lot of things he was doing and loved. With time, he is also finding it harder and harder to do things, and that is causing him to despair.
Community radio
67 The plaintiff deposed that since about February 2013, he had been working as a community radio presenter on a voluntary basis.
68 As of March 2015, the plaintiff was volunteering two nights a week on three-hour shifts. He presently does one three-hour shift every Friday night between 9.00pm and midnight. He probably spends two or three hours during the week gathering material for radio interviews and preparing recordings for the air.[35]
[35]T30
Recording business
69 The plaintiff deposed that since about April 2015, he has also been trying to set up his own recording business. That involves him recording bands and releasing their music as albums. To date, he has recorded four bands and released two albums. He is currently working on releasing two other albums. He is yet to make a profit from this venture.
70 The plaintiff is required to work one day a week, on average, but due to his back pain and restrictions, he usually does that day’s work across two or three hours of work per day.
71 In examination-in-chief, the plaintiff explained his involvement in music and sound recording in more detail. He has played in bands since he was a teenager and developed an interest in sound recording for his own purposes. He took that interest further to actually recording other live bands and acts. In that context, he took up the community radio role, to make quality recordings to play on the radio. He then got his own show at Yarra Valley FM.[36]
[36]T13
72 The plaintiff decided to set up his own recording business so he would not have issues with copyright. Since April last year, he has operated under the name “Skulduggery Records” as a sole trader. He uses Michael Youngberry’s studio and has built a production studio himself in a portable bus at his property. He purchased the materials to put it together with his redundancy payment.[37]
[37]T16
73 The plaintiff confirmed he is good with his hands and he had put the studio together.[38] He has been working on the studio for two years, a few hours of here and there as long as he could manage. He has to spend a few days recuperating or doing something else after that type of activity.[39]
[38]T40
[39]T49
74 The plaintiff has had his own studio as long as he has been a musician. As a teenager, he set up his bedroom as a studio.
75 The plaintiff visits artists and they also come to his studio. He has recently released two albums under his record label, one for “Humbucking Pickup”, a country folk band, and another for his band, “Blind Creek Rhythm and Blues Review.”[40]
[40]T14
76 When a band comes to Youngberry’s studio, the recording gear has to be set up. The plaintiff positions the microphones and sets up and monitors the recording. He does this pretty much alone, but his friends do help out.[41]
[41]T15
77 The plaintiff attends live concerts and shows with his friends. They all do the sound system, run the PA and the lights. The plaintiff then takes recordings from that system, with the agreement of the artists, to play on his radio show.[42]
[42]T41
78 The plaintiff sometimes has difficulty lifting equipment. There is always someone to help and he has put a lot of money into lightweight equipment and uses a foldable trolley.
79 The plaintiff did the recording at a music festival in Healesville late last year. He spends roughly one day a week recording at home, at Youngberry’s and also the radio station
80 The plaintiff agreed that when he recorded offsite or played, he took his guitar and equipment, put it in the car and drove to the location, set up the equipment and dismantled it at the end of the show.[43]
[43]T41
Performing
81 The plaintiff deposed that between October 2015 and early April 2016, he also did some seasonal performing work as a bass guitarist in a band, playing two to three times a month on a Sunday afternoon at a winery or beer garden.
82 In that role, the plaintiff was required to play four forty-five minute intervals, followed by a break, over three hours. Although this was difficult at times, he persisted with the performances, as playing the bass guitar was, and continues to be, his passion. It is one of the few things left in his life that gets him up in the morning.
83 Outside performing, the plaintiff plays the bass guitar at least twice a week for intervals of between of thirty-five and forty-five minutes. When playing the guitar, he feels increased pain. When playing alone, or during band practice, he alternates between standing and sitting.
84 The plaintiff gave further details of his guitar playing in cross-examination.
85 The plaintiff presently plays as a bass guitarist in three bands. They play live and produce albums. His main band plays on Sunday afternoons, predominantly in beer gardens during summer, from October until the end of April, pretty much every Sunday. In between times, the plaintiff plays with a tribute band, “Credence Rewound”, having played three or four shows in the last twelve months.[44] He practices quite regularly with another blues band.
[44]T34
86 “Credence” was established in 2007, and in the last twelve months has done three or four shows. During that time, the other blues band has performed maybe a couple of dozen times.[45]
[45]T35
87 One of the plaintiff’s bands performed at Shepparton and at Strathmerton. They had done not more than half a dozen country performances. They performed at Wagga at a music festival.[46]
[46]T36
88 Probably three or four times a week, the plaintiff would be doing something with playing in a band for a couple of hours at a time.[47] He agreed he described himself as generally liking to keep busy to the StarNow site. He confirmed he is a very experienced bass player.[48]
[47]T36
[48]T38
Lay evidence
89 Michael Youngberry swore an affidavit on 24 March 2016. He has known the plaintiff for at least five years. He met him through his studio rooms, which the plaintiff used for various projects.
90 At a minimum, Mr Youngberry sees the plaintiff twice a week in the studio, and might see him outside the studio for another live show or performance if he is helping the plaintiff.
91 Since the plaintiff’s injury, he has seen the plaintiff suffer from pain and restrictions. The plaintiff always appears stiff and has to be careful getting in and out of the car. He is unable to drive long distances and has had to turn down gigs because of his difficulty travelling.
92 On terrible days, the plaintiff struggles to stand up and play his guitar. The plaintiff has to do things to accommodate for his playing, such as making a modified stool to let him play while seated.
93 Mr Youngberry has also observed the plaintiff struggling to lift heavy things and he asks for assistance, generally to move or lift anything that is heavy. It is obvious when the plaintiff is struggling with spasm because of his facial expression and body language. Over the past few years, the plaintiff’s injuries have had a significant impact on his life.
94 Linda Sherie Murray, the plaintiff’s partner, swore an affidavit on 14 April 2016. She has known him for almost seven years, having met him in April 2009. They have lived together since November 2009.
95 Over the past few years, Ms Murray has noticed the plaintiff’s condition seems to have progressively deteriorated and worsened. He struggles to walk with her, and she has had to slow down to accommodate him. At times, he appears to be in pain while walking.
96 While shopping, Ms Murray has noticed the plaintiff lean over the trolley for support and, on occasion, when they have had to do a couple of hours’ shopping together, the plaintiff has had to lie down on the couch when they got home. The plaintiff has not done much walking since they met. He can manage to walk for about 20 minutes before needing to stop and rest.
97 The plaintiff struggles with long drives and, on occasion, when they have driven for longer than half an hour, he has complained of back pain.
98 The plaintiff struggles to bend and has difficulty lifting anything that is heavy.
99 Ms Murray has noticed, when the plaintiff is playing the guitar, he avoids standing in the same position.
100 The plaintiff does the gardening but she has noticed that over time, he has been able to manage less and usually has to sit down and rest after he has done something.
101 The plaintiff’s sleep is disrupted most nights and he usually wakes up once or twice a night due to pain and discomfort. When his pain is particularly bad, she has seen him take a painkiller to try and help him get back to sleep.
102 When the plaintiff has been in pain, he has often asked her to massage his back.
103 The plaintiff’s pain and restrictions have had quite an effect on their relationship. As his pain has progressively worsened, they have done less and less together as a couple. They do not go away as much as when they first met, and they have also struggled to be sexually intimate with each other at times.
104 While the plaintiff does not whinge, Ms Murray knows he is struggling through looking at his facial expressions, observing his body language, hearing him moan in pain and seeing him do breathing exercises to cope.
105 Over time, as the plaintiff’s condition has deteriorated, his mood has progressively worsened and he has told her that he feels down because of his pain and restrictions. She thought there was little doubt the plaintiff’s injury would have a significant impact on his life and caused him a great deal of pain and suffering.
Medical evidence
Treaters
106 The plaintiff first attended Dr Williams on 19 March 2009 in relation to the incident injury.
107 On attendances on 2 April and 16 April 2009, there was mention of the back pain easing and some improvement. From 30 April 2009, low-back pain was worse and on 14 May 2009, it was noted to be fluctuating.
108 Investigations were organised in May 2009.
109 As of 23 June 2009, Dr Williams noted that back pain continued with intermittent pain and paraesthesia and a Return to Work Plan was signed. On 9 July 2009, there was no change in back pain. On 6 August 2009, there was increasing back pain after the flare up.
110 On 20 August 2009, there was some improvement but the plaintiff was still in pain. On 21 September, Dr Williams noted the plaintiff’s back pain was better, and on 15 October, it was a little better.
111 There was worsening back pain noted on 12 November 2009, and on 10 December 2009, constant chronic low-back pain, worse lately, was noted.
112 On 4 February 2010, Dr Williams noted the plaintiff felt less pain and felt stronger after six weeks off work on holidays. On 4 March 2010, he noted chronic pain persisted. The reason for contact was increased work hours, with the employer wanting the plaintiff to work seven then eight hours a day over the next month.
113 On the last attendance with Dr Williams on 1 April 2010, he noted the plaintiff was managing well at work, he was prepared to try eight hours a day, the pain was chronic but mild and eased with a brace.
114 Dr Williams reported in March 2010, setting out the plaintiff’s progress at work and various investigations and treatment undertaken.
115 At that stage, Dr Williams thought the plaintiff suffered from back pain due to a lumbar disc injury sustained in the incident. He thought the plaintiff was making slow progress and would likely continue to improve. He also believed the plaintiff should not perform heavy physical work for the indefinite future, and that current restricted work duties were appropriate, and would likely to be extended to longer hours over the next few months.
116 The plaintiff started seeing Dr Lajoie, Dr Williams’ partner, on 4 May 2010 with Dr Lajoie. He noted chronic back pain persisted; the employer wanted the plaintiff to work seven, then eight hours a day, over the next month. The plaintiff was coping with then light duties and Voltaren was ceased.
117 The plaintiff attended Dr Lajoie for lumbar disc disease on 1 June 2010. On 29 June 2010, it was noted chronic back pain persisted and the plaintiff was coping with light duties. There was a similar entry on 27 July 2010.
118 On 9 September 2010, it was noted chronic back pain persisted and the employer wanted the plaintiff to work without rest breaks. On 13 October and 11 November 2010, it was noted chronic back pain persisted and was worse in the cold weather.
119 On 31 January 2011, Dr Lajoie noted the plaintiff’s lumbar disc disease had improved and he was able to return to work to normal duties. The following day, Dr Lajoie noted the plaintiff had considered his work re-considered his work capacity and was unable to do normal duties.
120 On the next attendance on 12 March 2013, Dr Lajoie reported right Pars interarticularis defect at L5, with L5 nerve root irritation, chronic pain. Tramal and Celebrex were added.
121 When seen on 26 May 2015, Dr Lajoie noted lumbar disc disease and chronic. The plaintiff was unable to work and wanted to reopen his WorkCover claim.
122 On 22 September 2015, a CT scan of the lumbar spine was organised. The plaintiff attended on 20 October 2015 for lumbar disc disease and chronic pain.
123 Dr McGrath at that practice saw the plaintiff on 17 November 2015. The plaintiff then needed a certificate of capacity in relation to lower back injury. He was still getting right sciatica. There was a query re an L5-S1 foraminal injection.
124 There was an attendance on Dr Lajoie on 15 December 2015 for lumbar disc disease. Dr Lajoie noted chronic lumbar back pain and the plaintiff remained unfit for work.
125 On 13 January 2016, Dr Lajoie noted the plaintiff had fluctuating lumbar back pain and was unfit for his pre-injury job as a fitter and turner. He certified that the plaintiff had no capacity for employment to 16 February 2016.in that period.
126 Dr Lajoie reported on 4 February 2016, noting the plaintiff had attended twenty-one times since March 2010. Unfortunately, the plaintiff had continued to experience chronic back pain since that time, which he described as worse during cold weather.
127 Dr Lajoie reported that the plaintiff had attempted to return to work on normal duties in January 2011, but had to reconsider his work capacity in February of that year, as he failed to cope.
128 Dr Lajoie noted that in May 2015, the plaintiff discussed re-opening his WorkCover claim due to his continuing fluctuating back pain and, subsequently, not being able to return to work as a fitter and turner.
129 Dr Lajoie diagnosed lumbar disc injury resulting from the incident, having seen the August 2015 CT scan.
130 Mr Morokoff, neurosurgeon, reported to QBE in April 2010, having seen the plaintiff on 4 August 2009 and 9 February 2010.
131 Mr Morokoff thought the plaintiff suffered an acute injury to his back, leading to exacerbation of back pain. The injury was entirely consistent with his description of the incident. The injury occurred to the plaintiff on a background of longstanding pars defect and Grade 1 spondylolisthesis. There was moderate disc degeneration leading to ongoing back pain.
132 Mr Morokoff recommended conservative treatment. He believed that heavy work and lifting would aggravate the situation and that the plaintiff should, ideally, be placed on a permanent restriction of 15-kilogram lifting. He thought the plaintiff would be suitable for alternative duties that did not require heavy lifting or twisting, or repetitive bending.
133 The prognosis at that stage was that the plaintiff’s symptoms would probably wax and wane for many years. Mr Morokoff thought the plaintiff may eventually require surgery if things deteriorated considerably, but there was no plan for that at the moment.
134 Chris Bartram, physiotherapist, from Evans Street Physiotherapy, reported in April 2010.
135 The plaintiff first attended on 23 March 2009, reporting he had sustained an injury in the incident.
136 Mr Bartram thought the plaintiff sustained a strain of his lumbosacral spine involving an aggravation of pre-existing, albeit asymptomatic, spondylolisthesis and degenerative changes of his lumbar spine.
137 Mr Bartram then thought the reported symptoms of the plaintiff’s current condition were likely to resolve over time if he avoided all aggravating activities such as heavy and repeated lifting or repeated bending, prolonged standing, staying sitting, heavy pushing or pulling activity. He thought the plaintiff may benefit from the assessment of a musculoskeletal physician as to a local diagnostic injection.
138 Mr Bartram considered the plaintiff had a permanent, but partial incapacity, as it related to his current manual occupation. He thought because of the provocative factors noted, the plaintiff’s current work duties as a maintenance fitter may be precluded in the long term. In his view, the plaintiff was suitable to undertake his current alternative duties, but could do them on a full-time basis with a progressive build-up of work capacity. In his view, the plaintiff would be at risk of re-injury or aggravation of his condition if he returned to his pre-injury work duties.
139 The plaintiff attended Dr Desai’s clinic at Mt Evelyn on two occasions for his incident injury (14 April 2011 and 24 March 2014).
140 Dr Carr noted the plaintiff attended with an exacerbation of lower back pain on 14 April 2011.
141 On 24 March 2014, when the plaintiff saw Dr Desai, he noted “sore back injury, time before fractured vertebra, using Celebrex for a long time, reason for contact, osteoarthritis.” It was also noted that Celebrex was added.
142 In his report of May 2015, Dr Desai noted that the plaintiff had been seen very regularly for his newly diagnosed diabetes myelitis-related consultations. Even during those consultations, the plaintiff never raised his back pain issue apart from pain scrips.
143 The plaintiff was by Dr Desai to psychologist, Louisa Cleland, in February 2016 by Dr Desai for counselling and treatment for anxiety and depression.
144 In Ms Cleland’s opinion, the plaintiff’s current symptoms of anxiety and depression were attributable to his recurrent back pain, which impacted on his mental health and wellbeing. His back pain regularly disturbed his sleep, daily function and affected his mood, causing him to feel depressed, impatient and frustrated. It also impacted upon his relationship with his partner, specifically his ability to have an intimate sexual relationship.
Medico-legal examiners
145 The plaintiff was examined by Mr John O’Brien, orthopaedic surgeon, initially in December 2014 and, more recently, in April 2016.
146 On re-examination, the plaintiff described constant lower-back pain, which he rated as 6 to 7 out of 10. It radiated to the lower back, to predominantly the right buttock, with some pain radiating down the posterior aspect of the right thigh into the calf, the severity of which he described as 4 out of 10.
147 The plaintiff told Mr O’Brien he took Panadeine Forte, four a day, plus Celebrex. Arrangements had been made for him to recommence physiotherapy and he was going to be referred to a neurosurgeon. The plaintiff felt psychological counselling for the last year had been of some benefit.
148 On examination, the physical signs remained basically unchanged from the first examination. They were also subjective, with no evidence to suggest the presence of nerve root compromise or indeed, radiculopathy.
149 Mr O’Brien considered the plaintiff’s chronic back pain was most likely associated with pre-existing pathology at the lumbosacral junction. Considering there had been no real change in relation to the nature, distribution or severity of pain since the first examination, Mr O’Brien thought the clinical condition must be regarded as stable, and ongoing treatment should remain conservative. In fact, given the chronic nature of pain, he thought the introduction of psychology would be beneficial in the plaintiff’s management of chronic back pain.
150 The prognosis was for the plaintiff to experience continuing back pain, which Mr O’Brien did not think would be progressive.
151 Mr O’Brien thought the ongoing disability associated with chronic pain was mild. He suggested the plaintiff would not be capable of undertaking unrestricted manual work. He did, however, consider that the plaintiff was not totally incapacitated, noting the plaintiff advised he was quite active in the music sphere, progressing with his attempts of creating a viable self-employed area of music recording and production. Mr O’Brien was sure, physically, this would fall within the plaintiff’s capabilities to undertake on a full-time basis.
152 Mr O’Brien would, however, conclude that in relation to his chronic pain, the plaintiff remained permanently mildly limited in his general, social, domestic and recreational activities and his chronic back pain would persist.
Investigations
153 Dr Slesenger organised a CT scan of the plaintiff’s lumbar spine on 16 March 2009.
154 It was reported there was a right L5 pars interarticularis defect and very minimal degree of spondylolisthesis.
155 Dr Rosenhain organised a CT scan of the plaintiff’s lumbar spine in May 2009.
156 It was reported there was Grade 1 anterolisthesis of L5 on S1, and there was a right L5 pars defect. There was narrowing of the right L5-S1 exit foramina, and the right exiting right L5 nerve root could be irritated.
157 Dr Morokoff organised an MRI scan of the plaintiff’s lumbar spine in October 2009.
158 It was concluded there was an L5 pars defect, with minor anterolisthesis, but no significant canal or foraminal stenosis.
The Defendant’s medical evidence
159 The plaintiff was examined by Dr Bruce Hocking, specialist in occupational medicine, on 14 February 2011. He carried out a worksite assessment the following day
160 The plaintiff then reported that he had mild pain in his lower lumbar midline and had good and bad days; however, his pain did not interfere with his activities.
161 Dr Hocking noted the CT scan and MRI scan showed a pars defect and minor spondylolisthesis, but no significant canal or foraminal stenosis.
162 Dr Hocking commented on various return to work programs, concluding that in resuming pre-injury duties, the risk of further injury was low because the plaintiff had minor spondylolisthesis and mild lower back pain and, on examination, had a good range of movement and reported function at home. He was able to cope with the duties of his trial return to work, until it was abruptly terminated, and the ergonomics of the workplace were reasonably good (there was an unscheduled cessation of the return to work program because the defendant withdrew duties).
163 Dr Hocking noted the plaintiff was the senior union rep and also the OH& S officer on site and that management and that he believed management was trying to get rid of him.
164 The printout from the StarNow website set out the plaintiff’s personal details, specialising in live sound and live sound recording. He described himself as an experienced interviewer and he pre-recorded interviews with musicians and other industry people for radio broadcasts. He generally liked to keep busy. He was out gigging most weekends.
165 The plaintiff toured the country a few years’ back as part of a troupe performing the Australian Meatloaf show and the Australian Eagle’s show, performing in every state and capital, except South Australia. He is a very experienced and reliable bass player, and has excellent equipment. His playing has often been described as ‘solid’.
166 The plaintiff described his own record label, Skulduggery Records, and his volunteer community radio program every Friday night. He was currently in the process of fitting out his interstate coach as a mobile studio that he intends to use for location recording production anywhere the need arises. He has a good range of recording and editing equipment software, and also dabbles in music videos, mostly from his radio show.
Overview
110 There is no dispute the plaintiff suffered a compensable injury to his back during the course of his employment with the defendant as a machine fitter in 2009.
111 The consensus of medical opinion is that the plaintiff suffered an aggravation of pre-existing asymptomatic degenerative change in his lumbar spine as a result of his work duties.[49]
112 It is accepted that employment continues to be a significant contributing factor to the plaintiff’s present condition.
113 There is no suggestion of any functional element in the plaintiff’s presentation and it is not disputed that his condition has a substantial organic basis.[50]
[49]T51
[50]Meadows v Lichmore Pty Ltd [2013] VSCA 201
167 The defendant fought the case essentially as a range case, with particular emphasis on what had been retained by the plaintiff.
168 Reliance was placed by the defendant on the decision of the Court of Appeal in Stijepic v One Force Group Australia Pty Ltd,[51] a judgment of 14 August 2009, per Ashley JA and Beach AJA. The Court noted:
“It is to be remembered that in reaching a conclusion whether a worker has established that he (or she) suffered serious injury ‘the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[52]
See also Dwyer v Calco Timbers Pty Ltd (No 2).[53]
[51][2009] VSCA 181
[52]Stijepic v One Force Group Australia Pty Ltd (supra) at paragraph [44]
[53][2008] VSCA 260 at paragraph [27]
169 Counsel for the defendant submitted the issue was whether all the consequences the plaintiff currently claims arise from the accepted compensable back injury in circumstances where his condition appears to have become drastically worse many years on from the accepted injury.[54]
[54]T8; Haden Engineering Pty Ltd v McKinnon (supra); Stijepic v One Force Group Australia Pty Ltd (supra); Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12
170 Further, it was submitted that the medical evidence in support of the plaintiff’s application was “very underwhelming” and any lumbar impairment did not meet the statutory test.[55]
[55]T56
171 Counsel for the plaintiff submitted the impairment was serious as the plaintiff had lost his capacity to work in his chosen field as a setter.[56] Further, he experienced constant pain and required daily medication and some of his recreational activities had been lost to him.[57]
[56]T8
[57]T63
Credit
172 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon: [58]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. … .”
[58](2010) 31 VR 1 at paragraph [12]
173 Counsel for the defendant submitted that the plaintiff’s credit was relevant insofar as whether his affidavits gave the full picture of his post-incident level of activity and insofar as they described drastic worsening in his condition very late on after the accepted injury.[59]
[59]T9
174 As I indicated during the hearing, the true extent of the plaintiff’s involvement in the music industry, in particular his level of performing, only became apparent in his viva voce evidence. It was not “pretty much covered” in his affidavits and history to doctors, as counsel for the plaintiff submitted.[60]
[60]T59, T57 – counsel for the defendant disagreed
175 In my view, the plaintiff’s affidavits did not give the impression he was out “gigging most weekends” as he described on the StarNow site.
176 Further, there was no mention of any difficulties experienced by the plaintiff in the period leading up to the redundancy due to his union role or of any significant deterioration in his back condition such that he had to cease work in late 2013.
177 However, the lay evidence relied upon by the plaintiff was not challenged and whilst surveillance had been undertaken for some fifteen hours,[61] no film was shown.[62]
[61]T50
[62]T61
Pain
114 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[63] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).[64]
[63]Supra
[64]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [3]
178 The plaintiff now complains of ongoing pain in his lower back and both legs and an intermittent shooting pain that runs down both legs almost daily. As of early last year, the pain was less frequent and involved only his right calf.
179 There is no mention however in Dr Lajoie’s brief report of any worsening in the plaintiff’s condition in recent times. In his 2016 report, Dr Lajoie simply described chronic back pain and thought the prognosis was guarded. He did not explain on what basis he certified the plaintiff unfit for all work earlier this year.
180 On recent re-examination, the plaintiff complained to Mr O’Brien of constant low back pain which he rated 6 to 7 out of 10, radiating across to the right buttock and down the right thigh.
181 Mr O’Brien noted the physical signs were subjective and there was no evidence of radiculopathy or nerve root compromise. No other examiners have found evidence of these features. He considered any disability was mild.[65]
[65]T52
182 Whilst the plaintiff had seen Dr Desai very regularly for unrelated conditions, there were only two visits related to the incident, the most recent in mid-2014, and Dr Desai did not comment on the severity of plaintiff’s back condition, save that he attended requesting prescriptions.
183 Whilst the plaintiff has described some problems with sleeping, as confirmed by his partner, he has never sought medical advice in this regard or needed to take sleeping medication.
184 The plaintiff has also complained of problems with intimate relations due to his back pain, which his partner has also confirmed.
Treatment
185 The plaintiff has had very limited treatment for his back.
186 In the reports from his treating doctor, in the two years after the incident, Dr Williams suggested the plaintiff’s condition was improving over that time leading up to recommencement of full-time, nearly pre-incident duties in February 2011.
187 There was only one specialist referral to a neurosurgeon in 2009, who considered conservative treatment was appropriate. There has been no suggestion of any surgery, or the need for pain management.
188 There was no attendance on a doctor for back pain from April 2011 to March 2013 when Tramal and Celebrex were prescribed. There were no further visits that year leading up to the November 2013 redundancy.
189 In my view, this level of treatment does not indicate a significant worsening in the plaintiff’s condition in recent years, as his counsel submitted.
190 I accept that this lack of treatment fits well with what the plaintiff was doing at that time – working full time in almost normal duties – as counsel for the defendant submitted.[66]
[66]T53
191 Further, the plaintiff did not tell Mr O’Brien on examination at the end of 2014 that his back pain had increased to the point of having to take a redundancy. In fact he noted the plaintiff continued full-time work which the plaintiff stated tended to be controlled by the use of Celebrex. Mr O’Brien also noted the plaintiff in fact reported no significant alteration in the nature, distribution or indeed severity of pain.
192 Whilst Dr Desai reported that the plaintiff had attended his Mt Evelyn clinic very regularly for diabetes, there was only one attendance at his clinic after April 2011 for back pain on 24 March 2014 when Celebrex was added.
193 The plaintiff also saw Dr Lajoie in March 2013 when Tramal and Celebrex were prescribed.
194 After the May 2015 visit with Dr Lajoie when the plaintiff advised he wished to reopen his WorkCover case, the plaintiff attended that clinic on five occasions up to January 2016.
195 Whilst the plaintiff may require Panadeine Forte pain-relief medication almost daily,[67] and he continues to suffer from episodes of pain, I do not accept that he suffers from a continuous substantial level of pain, as he does not require stronger prescription medication on an ongoing basis.[68]
[67]T62; See for example Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267 at paragraph [199] per Dodds Streeton JA
[68]Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181 at paragraph [48]
Work
196 There is no dispute between recent medical examiners that the plaintiff does not have the capacity for unrestricted heavy manual work.[69]
[69]T52, T62; Dr Williams - March 2010; Dr Morokoff - 15 kilograms February 2010; Mr O’Brien - 2014
197 However, the plaintiff has retained the capacity for a wide range of duties and carried them out until the November 2013 redundancy.
198 Dr Williams thought the duties were appropriate as of 2010 and Mr Bartram, the physiotherapist, shared his view.[70] Dr Hocking certified the plaintiff fit for full-time duties with limited restrictions in early 2011.
[70]T54
199 The plaintiff resumed full-time hours in his pre-injury duties with some minor modifications[71] to the workplace. His prognosis was excellent from his doctors, and the plaintiff was willing to start those duties.[72]
[71]T55
[72]T54
200 From February 2011 until November 2013, there were only three attendances on a general practitioner, as noted above, and prescription of painkilling medication only on occasion.
201 In the absence of any evidence of deterioration in the plaintiff’s back condition in 2013 or thereafter, there is no explanation whatsoever from Dr Lajoie as to why he now certifies the plaintiff unfit for any work.
202 Dr Lajoie simply stated in his brief report that the plaintiff attempted to return to work on normal duties in January 2011 but had to reconsider his work capacity the following month as he was unable to cope.
203 Mr O’Brien does not share Dr Lajoie’s view as to the plaintiff’s incapacity and considers he is fit for some work, noting his present activity in the music field.
204 Whilst the plaintiff mentioned his concerns about losing his job because of his WorkCover claim to Dr Hocking in February 2011 and Dr Carr in April that year, the plaintiff made no mention of these concerns in his affidavits or to any other medical examiners later on.
118 Given the lack of treatment and the plaintiff’s ability to work full time for nearly three years on duties very similar to those carried out pre-incident, I am not satisfied that he was forced to take a redundancy because he could no longer perform his duties as a setter, as his counsel submitted.[73]
[73]T62
119 Since taking the redundancy, the plaintiff has been able to build upon the musical interests he has enjoyed for a lifetime and including whilst working.
120 Whilst the plaintiff may have some pain and discomfort standing to perform, as the lay witnesses confirmed, he is able to play very regularly in a range of bands – “out gigging most weekends”.
121 Whilst Mr Youngberry confirmed many of the difficulties the plaintiff described with his musical and recording activities, his affidavit did not disclose the full extent to which the plaintiff was involved in both performing and sound recording.
122 The plaintiff has expanded his recording business, setting up and fitting out the mobile studio he purchased with funds from his redundancy. He records there, at Youngberry’s studio, and also the radio station. He also travels to various locations to record live music and later produced albums from his recordings.
123 The plaintiff would spend more time in these activities if he had the opportunity.
124 I accept however that the plaintiff would have difficulty lifting heavy recording equipment but he has met this problem by purchasing lighter equipment, using a trolley, and at times, obtaining assistance from others transporting and setting up equipment.
125 Similarly, the plaintiff would have difficulty with heavy gardening or household work, as his partner confirmed. He has been unable to complete a rebuild of an off-road racing buggy, as that work is too heavy for him.
126 Further, the plaintiff is unable to go bushwalking, an activity he enjoyed regularly pre injury. Whilst he deposed to difficulties cycling post incident, the plaintiff conceded that cycling was not a major interest.
127 While the plaintiff has suffered some restriction and is likely to continue to suffer from inhibitions on his ability to engage in unrestricted physical activity, by and large, his ability to engage in the activities that were important to him (and will be important to him in the future) is not affected to any significant degree.[74]
[74]Stijepic v One Force Group Australia Pty Ltd (supra)
128 As the Court acknowledged, in Transport Accident Commission v Dennis:[75]
[75](1998) 1 VR 702 at 703
“Many impairments are considerable, in the sense that they are important or substantial without being very considerable.”[76]
[76]Transport Accident Commission v Dennis (supra) at 703 per Callaway JA; Sabo v George Weston Foods (2009) VSCA 242 at paragraph [73]
129 Taking into account all the evidence, I am not satisfied that the plaintiff has satisfied the onus of showing that the pain and suffering consequences of his injury have resulted in an impairment to the lumbar spine which “is fairly described as being ‘more than significant or marked’ and as being ‘at least very considerable’”.
130 Accordingly, the plaintiff’s application is dismissed.
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