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[2012] VCC 1232
County Court of Victoria
2012-08-29
Mr J
Original judgment source is linked above.
**1 This is an application for leave to bring a proceeding for the recovery of damages pursuant to section 134AB of the Accident Compensation Act 1985 ("the Act") made by Originating Motion pursuant to section 134AB(4) on 17 September 2010 by the Plaintiff, in respect of an injury suffered by him in the course of his employment with the Defendant on 19 February 2007.
2 The Plaintiff seeks a declaration that he suffered a serious injury as defined within section 134AB(37) under paragraph (a), by reason of a disc disruption at L5/S1; and facet joint dysfunction.
3 Leave is sought in relation to damages for pain and suffering only.
4 In the course of the application, the Plaintiff gave oral evidence and was cross-examined. Otherwise the parties rely upon material tendered by them which included three affidavits sworn by the Plaintiff,[1] an affidavit sworn by his wife; medical reports tendered by both parties; clinical notes of the Valewood Clinic[2] tendered by the Defendant; and surveillance video tendered by the Defendant.
5 The Defendant concedes that the Plaintiff suffered a compensable injury during the course of his employment on 19 February 2007. However, it claims that any such injury has now resolved; or alternatively, the consequences arising from any residual impairment are not serious. Accordingly, the following issues need to be addressed: First, the nature of the injury to the lumbar spine; Secondly, the permanence of any resulting impairment; and Thirdly, whether the consequences of the impairment are serious, within the meaning of the statutory test.**
**6 The Plaintiff was born on 22 June 1978 which makes him now 34 years old and 28 years old at the time of the workplace injury.
7 The Plaintiff is married and now has three children: a daughter aged 4½; a son aged 18 months; and a baby born within a week of the hearing. His wife currently works at home in Information Technology for the National Australia Bank.
8 The Plaintiff attended school to Year 9 at Salesian College and then Year 10 at CBC, following which he began an apprenticeship as a cabinet-maker, but stopped after 3 years, because of all the dust which was affecting his lungs.
9 He then performed casual work, including waiter and bar attendant work, production line work, labouring work and concreting. Between about 2000 and 2003 he worked in the family business running a charcoal chicken shop. During the same period, he also began doing some casual work with the First Defendant, a labour hire firm, performing various jobs including stock control, unpacking containers and other labouring type work. From about 2003 onwards he worked exclusively for the First Defendant. The heaviest work he was required to perform was the last 3 months when placed at Watson Automotive, the Second Defendant, as a warehouse stock controller involved in the distribution of brake components. His duties at Watson Automotive were very heavy and repetitive and included pulling brake components out of a container, which he performed about 80% of the time.
10 In his first affidavit, the Plaintiff describes this work in some detail:**
5. ...I would have to reach in to the large container and prise out the brake components directing them into a smaller container situated directly beneath it. Sometimes I would pull out 3 at a time, sometimes 10, or 15, or 20. It depends how jammed they were and attached to one another. Sometimes when the brake components would jam up I had to loosen them which would place considerable pressure on my back. This was very heavy work... Prising out the brake components from the large container required a twisting motion of my spine, working the hook sometimes low down into the container, which meant having to bend into the container. In addition for about 20% of the time I was working with the Second Defendant I was required to sort out left and right sided brake components (each weighing about 5kg to 8kg) by lifting assorted brake components out of one of the large containers which were situated on the ground and sorting them and placing them into other containers. This was also heavy work as I had to bend right into the container in order to pick up the components and lean into the other containers after I had sorted. I had to perform the above tasks on a repeated basis...
8. Prior to suffering the injury the subject of this application my health was very good. In particular I had never suffered any significant injury to my back or neck. I used to occasionally obtain a massage or alignment from naturopath Mr Fivos Odysseos, but this was just to maintain my general health rather than for any specific problem or injury. I was a fit, healthy and active person. I enjoyed going out with friends and participating in activities such as go kart racing and ten pin bowling. I would play soccer socially. I enjoyed jogging and working out in the gym. While I was still living with my parents before I got married I would help my parents out around the house, for example I would mow the lawns and help my mother with the vacuuming. We enjoyed going out for long drives for picnics and day trips.
11 Under cross examination, the Plaintiff agreed that prior to the workplace injury he consulted his naturopath, maybe on a yearly basis, in relation to pains in various parts of his body, including his neck and shoulder and upper part of his back.[3]
9. ...[A]s a result of performing my duties with the Second Defendant I began to suffer from some mild aching in my back and neck. It was nothing severe enough to stop me from working or seek medical attention initially. However on 19 February 2007 whilst pulling a load of brake components out of a crate with the hook I experienced pain in my low back going half way down into my left buttock. I reported the injury to the supervisor and managed to finish my shift, avoiding the heavier work and I think I mainly did lighter forklift duties. The following day I woke up with persisting pain but I still went to work. By about 11.00 am however the pain was quite severe and I was experiencing difficulty walking. I attended doctors at a local clinic, recommended by the First Defendant, namely Dr. Wattegarna at Valewood Clinic in Mulgrave.
9. ...Dr. Wattegama prescribed me some anti-inflammatories and certified me unfit for work. I returned to Dr. Wattegama on 22 February 2007. My back was still feeling stiff and worse than before. Dr. Wattegama organised a CT scan which was performed on 23 February 2007. This revealed a disc protrusion of my L5/S1 disc.
9. ...I continued to see Dr. Wattegama regularly with ongoing back pain and spasm. I was also suffering from neck pain, going into my left shoulder, with some numbness in the fingers, but this was not as severe as the back pain which I was more preoccupied with. I was also experiencing numbness in my legs and toes. I was unable to get back to work because of the pain and restriction. Dr. Wattegama recommended physiotherapy treatment but when I saw a physiotherapist he did not really do anything for me.
12. On one occasion in about April 2007 over the weekend my fiancé and I were attempting to move a sofa by pushing it so my fiancé could vacuum when I felt an exacerbation of my back pain. I was reviewed by Dr. Wattegama on 12 April 2007 and 3 May 2007. Unfortunately my fiancé and I had already planned well in advance our wedding and honeymoon in Greece for 12 May 2007. This went ahead and we went away for about 5 to 6 weeks. The airplane trip was most uncomfortable for me and while in Greece I was unable to do much walking in the hilly and mountain areas.
13. I returned to Dr. Wattegama for review on 6 July 2007 and she recommended I be assessed by a rheumatologist. From 29 August 2007 I started seeing Dr. Michael Kiley at the same clinic as Dr. Wattegama had left. Dr. Kiley organized an MRI of the whole spine which I underwent on 8 October 2007. This was reported as being normal. Initially I was reluctant to take pain killers. I was not one to resort to tablets. However eventually I found that medication such as Tramal, Voltaren and the anti-inflammatory Mobic helped a bit and managed to keep me going.
14. In the meantime I started seeing an osteopath, Dr. Win Soeleiman, about once or twice a week commencing on 11 September 2007. I was experiencing low back pain, radiating down into my left buttock, together with a stiff neck and shoulders, worse on the left. All up I attended Dr. Soeleiman for about a year. It got to the point however where I no longer found his treatment beneficial and I switched to the naturopath/chiropractor, Mr. Fivos Odysseos, whom I had seen a few times before my injury.
15. Because of my ongoing pain I started feeling depressed. I was experiencing headaches daily and I was having difficulty sleeping. My back at times was so sore it affected my ability to have sex. I was only just recently wed and all of the above were impacting on my relationship with my wife, especially in the early stages. In addition I was getting paid at 75% of my pre-injury wage and because of the drop in income we were having difficulties making ends meet and in particular paying off our mortgage.
16. I eventually got to see Dr. Mark Patrick, rheumatologist, on 15 October 2007. Dr. Patrick put me on Endep each night to help with muscle modulation. He recommended some form of multidisciplinary rehabilitation would be appropriate.
17. I saw Dr. Gassin, a pain specialist; in August 2008. Dr. Gassin recommended physiotherapy treatment if I was getting benefit from it. However, as I found my other treatment and medication were helping I decided not to go to physiotherapy treatment as well.
18. It was on 12 September 2008 that I first started attending Mr. Odysseos at the Bentleigh Natural Therapies and Acupuncture Centre for treatment, including massage, cupping, mobilization exercises and acupuncture locally to my back.
19. On 15 September 2008 my wife and I had our daughter. However because things were tough financially my wife had to return to work after only 6 months. I became a house dad although I found it difficult looking after our baby. Picking her up was difficult, especially as she got bigger, although I didn't have much choice. I had trouble getting down on the floor with her and would usually play with her while she was on my lap which was more manageable for me. Over and above the physical difficulties, when our daughter was born she was not well and this compounded the anxiety I was already experiencing as a result of my work injury. This was a very difficult time for my wife and me.
20. Then in June 2009 Dr. Kiley recommend I return to Dr. Gassin for further management. Dr. Gassin recommended a pain therapy course, for which Workcover approval first has to be sought.
12 Under cross examination, the Plaintiff agreed that his lower back pain improved in the initial stages, during 2007. In 2008 the low back pain was manageable with the medication, but did not improve. The neck pain was similar or occasionally worse,[4] but the back was always the main problem.[5] He did not take all of the medication prescribed for him. He stopped taking Endep which made him feel unwell. He stopped taking Mobic about 3 months ago and now takes Tramadol.[6]
21. We were still struggling financially even though my wife was working and I was keen to get back to work, although it had to be lighter work. Then in about August 2009 I managed to get work as a debt collector through a friend of mine. I perform sub-contract work for a company called 'E-Collect' in Little Collins Street. I work with a telephone and computer in an office environment. I work 38 hour per week and the pay is commission based. I have not worked in an office environment before or used a computer for work and I had to learn on the job. On average so far I have been able to earn about $750 per week, slightly more than I was previously earning but this all depends on the work that is available and at times I earn significantly less. For instance, in January 2010 my income dropped significantly because business was slow. Also, because I am working as a sub-contractor, I obviously do not receive annual leave or sick leave. So far I have been able to manage reasonably well with this work as it is lighter work although I still find my back gets sore with prolonged sitting. When this occurs I have to get up and walk and move around and do some stretching exercise. However I don't think I can find a job much lighter than this and hopefully I am able to continue with same.
13 In his second affidavit the Plaintiff stated that he ceased working at E-Collect at the end of January 2011 and then obtained similar work with National Mercantile, as a debt collector on a three month contract, which expired at the end of April 2011. In his second affidavit he further states:
13. I am frustrated by my injury. In the last 2 or 3 weeks following the expiration of my employment contract there were jobs that I knew I would be able to do but because of my physical injuries, have avoided applying for. I had been offered a position as a storeman but knew that the job would involve a lot of heavy lifting and bending and I simply could not sustain such employment. I have been looking mainly for work of a sedentary nature. Fortunately I have learned to use computers in my last employment at E-Collect and with National Mercantile so that my employment options have broadened to some degree. Nonetheless, it is still frustrating being limited in terms of my employment options and opportunities.
14 In his third affidavit, the Plaintiff said, in part:
7. Since swearing my last affidavit, I have obtained alternative employment. From approximately July 2011 to April 2012, I was employed by Kernsigns in a Sales Role. This work is again predominately administrative that requires driving. I have recently commenced employment full time with "Melbourne Signs" in Sales since 14 May 2012. My job involves mostly administration work and driving for the sales role. I find that I have difficulty ... sitting for long periods of time at my desk or driving for long periods of a time. At times, I feel like my back is locking up and I am restricted in the level of driving.
15 Under cross examination, the Plaintiff confirmed that his current work as a sales manager is based in Fern Tree Gully. He drives to work, which takes anywhere between 25 minutes to 1 hour. One day per week he will drive around Metropolitan Melbourne; and otherwise he does administration, computer work and managing the accounts, in the office.
22. Since the onset of injury my condition has basically plateaued and I have had to learn to live with my pain. I continue to experience constant pain in my low back. This still spreads down to my left buttock and the upper part of my left thigh. I also continue to experience pain in my neck and left shoulder, although this is not as bad as the back. My pain is aggravated by driving long distances. If we plan to go to Rye for example I have to make sure that I will have sufficient time to recover so I don't miss a day from work. The back pain is present all the time, although on some days it is worse than others. It is aggravated by standing or sitting or walking for any length of time, or with repetitive bending, twisting and lifting. In addition, since suffering my injury my sleep has been disturbed due to pain and difficulty relaxing. I get up in the morning stiff and sore. Sexual activity is uncomfortable and less enjoyable and some days my wife and I simply can't have sex. My wife has now come to accept this. She is very understanding and patient....
16 In his second affidavit, the Plaintiff said, in part:
2. Since the time of swearing my last affidavit my situation has remained the same with respect to my back condition. I continue to experience pain in the lower back which varies in intensity. I have good days and I have bad days. However, I continue to do as much as I can and try to cope with the pain. The pain extends into my left buttock. The pain into my left buttock is like a stabbing pain.
6. I continue to experience pain in the lower back which varies in intensity. At times I still have good days and I have bad days. I try to do as much as I can to try and cope with the pain. The pain continues to extend into the left side of my buttock especially when I am trying to sleep. The pain continues to feel like it is a stabbing pain. I have a lot of difficulty getting out of bed in the mornings due to pain and not being able to move properly.
17 In his third affidavit, the Plaintiff said, in part:
24. I continue to feel depressed. I am often tearful and irritable. I find myself yelling a lot. On occasion I take out my frustrations by punching the door. There are times when I have felt life was not worth living but the thought of my young daughter has always stopped me from doing anything drastic.
8. My wife and I are now expecting our third child [a daughter born early August]. My eldest child is turning 4 years old whereas our second child has just turned 1 and a half years of age. Given that my wife is expecting again, I do try to help her around the home as much as I can in terms of household duties and looking after the children. I try to help out at home as much as I can. I am still unable to do the heavier things around the house and outside the house. I do some of the shopping and have no difficulties in pushing a trolley around. However, sometimes I have the children with me and I find it difficult to lift the bags and also try and put the children into the car as this puts a lot of strain on my back.
9. I continue to still have difficulty picking up my children, however I do pick them up. I find that when I lift my children, this aggravates my back pain and there are many days when I am sore because of it
18 Under cross examination, the Plaintiff said that currently, and for the past 5 years he has experienced pain, on and off, in his neck, left shoulder, and left side of mid back; although he agreed he had some neck and shoulder pain prior to the work place accident, for which he attended the Naturopath.
23. I continue to see Dr. Kiley approximately once a month. He prescribes me my medication. I am still taking Tramadol and Mobic for the pain. I see Mr. Odysseos about three times a month. I find that after about 10-12 days I need further treatment from him to keep me going. Only this and to a lesser extent my medication and stretching exercise enables me to persevere with work.
24. ... Currently I am taking Cymbalta instead of Endep for my depression. It helps calm my nerves and also to get to sleep.
19 In his second affidavit, the Plaintiff said, in part:
3. I continue to consult my general practitioner, Dr Kiley on a monthly basis. He prescribes Mobic, Tramadol and Endep. I also had taken a cycle of cortezone but it did not agree with my system, and made me feel ill and drowsy. I try to avoid taking the Tramadol and Endep during the day as it affects me. I generally take Endep or Tramadol at night because it makes me feel a bit dopey.
4. I was referred by my general practitioner to Dr Clayton Thomas, rehabilitation specialist, whom I have seen on two occasions in the last three months. I saw him because of ongoing back pain. He has referred me to a specialist in order to have facet joint injections...
5. I also see my Osteopath at least 3 to 4 times a month for treatment. This has been ongoing to help me maintain my health and to minimize the pain that I am in.
11. ... Since the birth of my children I have had to refocus and whilst there are times when I feel depressed, it is nowhere near as bad as what it was in the first 2½ years after my injury. I take Endep which is an anti-depressant only occasionally and then mainly at night.
**20 In his third affidavit, the Plaintiff said that he has now undergone further treatment to his lower back by Mr Andrew Muir, Pain Physician, who has administered three medial branch blocks over March, June and July 2012.
21 Under cross examination, he said that the blocks relieved his pain by about 50% for about 6 to 8 hours, then the pain got worse before returning back to the normal level.
3. I have been advised by Mr Andrew Muir that once I undergo the third lot of medial branch blocks [which took place in July], he will then consider whether it is appropriate for me to undergo further treatment by way of facet joint denervation, a procedure that involves deadening the nerves. If this treatment is required, I understand I will have to undergo this procedure every 12 to 18 months.
23 Under cross examination, the Plaintiff confirmed that he has discussed with Dr Muir that he would be a good candidate for radio frequency neurotomy and he proposes to go on with that treatment. He further confirmed that Dr Muir advised that following such treatment he should get...'a significant and prolonged improvement in your pain with commensurate change in function and reduction in medication requirements.'[7]
4. I continue to consult my treating general practitioner Dr Kiley every 1-2 months for treatment and management. He prescribes me with Tramadol and Diazepam. I take the Tramadol almost every day, however I have now ceased taking the Diazepam as I could not cope taking strong medication.
24 Under cross examination, the Plaintiff confirmed that he ceased taking Endep, Cymbalta and Prednisolone because of the adverse effects; and he will now juggle between Mobic and Tramal, which he takes as he needs to, perhaps 4 to 5 days per week.
5. I have also continued to consult Osteopath Dr Win Soeleiman on a regular basis. However, in the last couple of weeks I have also commenced consulting Chiropractor, Dr Anthony Papaleo in East Bentleigh. To date, I have seen Dr Papaleo on two occasions. This has been ongoing to help me maintain my health and attempt to try and relieve the pain.
25. Around the house I can do simple things such as wiping down a bench and help clear the table. However we have had to pay a cleaner to help out as I can no longer help my wife as much as I used to. I also pay someone to do the lawns as I find this difficult. In addition, I have not been able to return to many of the recreational activities which I enjoyed prior to my injury. Nor do we socialize as much. If we go out for dinner we usually get through our meals quickly as I find sitting around for more than an hour uncomfortable. I can no longer go jogging. I still try walking about 15 minutes 3 times a week to try and keep fit. After the injury I put on about 8 to 10kg as the result of my relative inactivity. I have since been able to lose about 5kg of this extra weight.
26. In terms of work because of my injuries I am prevented from performing any activity which involves repetitive bending, twisting or lifting, or prolonged sitting or standing or other physical activity. I still remain extremely concerned about my future work prospects despite the fact I have recently been able to find relatively light debt collection work. I believe I will indefinitely be restricted to this type of work. I am only 31 years old and feel locked out of future employment opportunities.
25 In his second affidavit, the Plaintiff said, in part:
8. My wife and I had our second child on the 19th March 2011. My child is only about 12 weeks old. Leading up to the birth of our second child I was doing a lot more around the house, as my wife became sick and I was helping her as much as I could. My first child is now about 3 years of age. I help with my children as much as I can but I am frustrated that I cannot help more.
9. I have difficulty picking up my children but often I will when required and this has aggravated my back pain and there are many days when I am sore because of it. In addition, I often have to drop off my daughter at day care and getting her in and out of her car seat has been very problematic but I put up with the pain, and try and avoid aggravating my back pain.
10. I try to help out at home as much as I can. I do most of the shopping and have no difficulties in pushing a trolley around. There are days when the lower back pain is quite severe and I will avoid shopping on those days if I can.
12. I am still unable to do the heavier things around the house and outside the house. I pay someone else to do the lawns as to avoid aggravating my back pain.
26 Under cross examination, the Plaintiff agreed to the effect that his social and recreational activities and priorities have necessarily changed now that he has a very young family. He also agreed that there were no particular sporting activities which he undertook with a passion, but did enjoy the range of activities described. He does not go out as much now and friends and family will tend to visit them at home more.
**27 On 23 February 2007, a CT scan of the lumbar spine was reported normal, save for a small central disc protrusion at L5/S1.[8]
28 On 8 October 2007, an MRI of the whole spine was reported: Normal Study. In particular, the alignment of both the cervical and lumbar spine were normal and in each case there were no focal bony lesions or compression fractures; and the intervertebral discs, facet joints, central canal and foramina were normal at all levels with no nerve root compression or thecal sac compromise.[9]**
**29 Covert video surveillance of the Plaintiff taken on 25 June 2012, was played to the court for a period of 1 minute 20 seconds. It depicted the Plaintiff getting out of his car at work in the morning, walking across a car park and spontaneously bending over to adjust his trousers, which were caught up in his socks, momentarily standing on one leg.
30 In my view there is nothing in the video surveillance which is inconsistent with the evidence given by the Plaintiff.
31 The Plaintiff agreed that from time to time he can go out and do the shopping; pushing a shopping trolley; he will occasionally take the children with him; and once a week he will drive about 100 to 150 kilometres for work.
32 I infer that the remainder of the video surveillance admitted, is similarly not inconsistent with the Plaintiff's evidence.**
**33 Dr Michael Kiley General Practitioner has been treating the Plaintiff since August 2007, after taking over from Dr Wattegama, who had previously worked in the same practice.
34 Following his workplace injury on 19 February 2007, the Plaintiff consulted Dr Wattegama the next day complaining of pain in his left buttock without neurological symptoms. On examination, Dr Wattegama noted that the spine was not tender, but there was tenderness over the left sacro iliac joint area and pain with anterior and lateral flexion. Otherwise all movements had a full range. Dr Wattegama diagnosed a muscular strain and prescribed anti-inflammatory medication.
35 Dr Wattegama continued to see the Plaintiff, noting that things appeared to be improving, although there was still some pain and spasm. A CT scan showed a minor disc protrusion at the L5 level.
36 When the Plaintiff saw Dr Wattegama on 12 April 2007, the clinical notes record that:**
... the back pain was slowly improving but had been aggravated over the weekend after lifting some furniture. Mr Fokas said that he now had pain over his entire back and was also complaining of left sided neck pain radiating up into the head. There were no associated neurological symptoms... Again the assessment on this occasion was musculoskeletal pain, but a referral was also made to a rheumatologist...[10]
37 Dr Wattegama continued to see the Plaintiff through April and May 2007, when the lower back pain was still improving but the neck pain had worsened. The Plaintiff married on 12 May and after honeymooning in Greece, returned on 27 June. When he consulted Dr Wattegama on 6 July 2007, it is recorded:
... the lumbar back pain was okay - apparently about 75% improved. The neck and shoulder pain was worse and he was now complaining of frequent headaches, difficulty in sleeping and felt that this was mostly from the result of neck pain.[11]
38 Dr Kiley first examined the Plaintiff on 29 August 2007, when he took a history of the workplace injury and noted that the Plaintiff had not returned to work because he felt that the pain was too severe.
... He now has pain down the left side of his back and it radiates up into his head, all through his upper back and occasionally he has stabbing pain into his anterior chest on the left and sometimes has left arm numbness... He has daily headaches, he sleeps very poorly, much worse now than any time before sustaining this injury and at times his back is so sore it affects his ability to have sex.[12]
39 On examination, Dr Kiley noted a variable range of movements, in the cervical and thoracolumbar spine. There was some evidence of some muscle spasm over his left spinal muscle in the lumbar region, particularly associated with full flexion. At this stage, Dr Kiley assessed that the Plaintiff's main problem was:
most likely facet joint dysfunction that affects mostly the lower cervical region and lower thoracic and lumbar region. This condition is painful in itself and may well lead to areas of muscle spasm and that can also be acutely painful. It is likely that as a more specific incident he has sustained a L5 lumbar disc prolapsed probably as a result of a specific lifting incident on 19 February when he first complained of a lower back injury on the left side. That injury has led to the lumbar back pain and the pain down into the leg. That was resolving but with cessation of treatment has remained a problem at some level.[13]
40 In August 2010, Dr Kiley referred the Plaintiff to Dr Clayton Thomas to assess his overall pain situation. In his report of 19 May 2011, Dr Kiley summarises the Plaintiff's condition as follows:
[the Plaintiff] sustained a lumbar disc injury in February 2007, he has ongoing pain, initially lumbar back pain and sciatica. He then developed thoracic and cervical pains that have been extensively investigated, including MRI scans of his whole spine. No specific cause was found for the cervical thoracic pains on the scans. In the absence of MRI findings the likely cause of these pains are soft tissue injury/facet joint dysfunction and associated muscle spasm and myofascial pain.
Current treatment consists of self managed exercise program, occasional chiropractic and use of anti-inflammatories, painkillers and pain modulating medication like Endep. These are usually taken intermittently by [the Plaintiff].[14]
**41 Under cross examination, the Plaintiff was taken through the clinical notes of Dr Kiley. Between December 2010 and December 2011 the Plaintiff attended Dr Kiley on a total of 6 occasions; and between January and June 2012 he had attended on a further four occasions. The Plaintiff agreed that on many of these visits the main complaint of pain made by him related to his neck, left shoulder and/or chest.
42 In his final report of 24 May 2012, Dr Kiley confirmed his diagnosis of a soft tissue injury with likely facet joint dysfunction and myofascial pain. He further noted that the Plaintiff had since undergone some diagnostic medial branch blocks to the lumbar spine, which had made the pain worse, so that no further treatment was pursued.
43 Dr Robert Gassin Musculoskeletal Pain Specialist examined the Plaintiff on two occasions, in August 2008 and August 2009, upon referral by Dr Kiley. Following his first examination, Dr Gassin recommended that the Plaintiff see a physiotherapist with expertise in exercise-based treatment and referred him to Narre Warren Physiotherapy for further assessment and management. The Plaintiff chose not to act upon this referral.
44 At his second assessment in August 2009, Dr Gassin noted that the Plaintiff reported some improvement in his condition, but he remained significantly disabled and unable to return to work. In particular, he reported that his neck and shoulder pain were constantly present whereas his back pain varied in intensity but was increased with static postures and repetitive movements. The low back and neck pain were causing a similar level of disability.
45 On examination, Dr Gassin noted a slightly decreased range of lumbar spine movement in all planes. He was tender to palpation at the L5/S1 level; suffered pain in the left buttock; shoulder abduction and flexion caused pain on the left side of his neck, radiating to the left interscapular region; and cervical spine range of movement was full, with tenderness to palpation in the left upper back and neck. Dr Gassin suggested to his general practitioner that the Plaintiff be referred to a rehabilitation Physician, such as Dr Clayton Thomas. In conclusion, Dr Gassin diagnosed:**
Mr Focas suffers from somatic low back and neck pain with a possible inflammatory component. On the occasion of his most recent appointment, I formed the opinion that he had become very pain focused.[15]
**46 Dr Clayton Thomas Consultant in Rehabilitation and Pain Medicine first examined the Plaintiff, upon referral by Dr Kiley, in January 2011; and then reviewed the Plaintiff in March 2011 after he underwent a further MRI.
47 The MRI performed on 7 February 2011 was normal. At his subsequent examination in March 2011, Dr Thomas noted specific and quite localised tenderness in the left lower lumbar spine and over the left sacro iliac region.**
I felt that therefore it may have been a posterior related pain problem such as the facet joint. I suggested that he be seen by my colleague Dr Andrew Muir, for consideration of medial branch blocks to try to determine the source of his pain and if this was possible to then look at possible denervation procedures...
Given that he has had persistent pain for a number of years, it is reasonable to indicate that he will have ongoing pain going forward. This problem does not appear to be degenerative. The MRI of his lumbar spine is normal.[16]
48 Dr Andrew Muir Consultant in Pain Management (Anaesthetics) first examined the Plaintiff in April 2011, upon referral by Dr Clayton Thomas, specifically to assess whether he was a suitable candidate for medial branch blocks and/or a sacro iliac joint injection. On examination, Dr Muir noted as follows:[17]
The patient is able to walk on heels and toes with facility. He can flex and extend his lumbar spine and notices a decrease in movement and increase in discomfort on lumbar extension. There is no evidence of any neurological change. The patient's medication consists solely of prn Mobic at the time when I saw him.
I have discussed the issue with the patient and considered he may be a good candidate for radiofrequency neurotomy. In order to determine whether this is the case or not, we will need to perform diagnostic medial branch blocks of both the lower lumbar facet joints and the sacro iliac joints.
In my opinion, the patient is suffering from pain as a consequence of damage to the lumbar spine and sacro iliac joint. The patient is likely to suffer from ongoing pain from these structures for the indefinite future.
It is unlikely that any surgery to structural or anatomical problems of his lumbar spine will eventuate as a consequence of his condition but periodic radiofrequency neurotomies may be indicated if diagnostic blocks indicate a significant pain generated from the structures.
The patient's long-term prognosis is good. He has made a good recovery as a consequence of exercise. Notwithstanding this, he is likely to suffer from ongoing discomfort in this part of his body for the indefinite future.
The patient is suffering from ongoing pain and minor distress as a consequence of his condition. This is having a negative effect on his social and domestic impacts of his lifestyle but only of modest degree.
49 Subsequent to Dr Muir's initial assessment, the Plaintiff attended the Epworth Hospital for diagnostic blocks around his lumbar spine. Dr Muir explained this process as follows:[18]
Two sets of medial branch blocks have been performed. These aim to anaesthetise the zygapophyseal joints at the posterior aspect of the spine. On both occasions the left L3/4 L4/5 and L5/S1 joints have been anaesthetised. The patient has reported on both occasions, in the early post-operative phase, nearly 100% relief. The patient's analgesic as reported to me by his contemporaneously recorded charts has been 50% or better for a period of eight hours. Accordingly he would be a good candidate for radiofrequency neurotomy, potentially.
Should this proceed, our expectation would be for a significant and prolonged improvement in the patient's pain with commensurate change in function and reduction in medication requirement.
I would stress that at the present this prospect is potential not actual.
50 Dr David Barton Consultant Occupational Physician examined the Plaintiff at the request of the Defendant's insurer on 3 April 2007, or approximately 6 weeks after the workplace accident. Dr Barton summarised his clinical examination and findings as follows:[19]
The worker describes a short history of fairly unusual and widespread symptoms that he relates to doing manual work for a day and a half with one particular job. Initially he described lower back and left leg symptoms although later he went on to describe various other symptoms involving the neck, chest and left shoulder.
I note that his CT scan showed a small central disc protrusion which clearly had no neuro compressive features. Such a result would be considered normal in someone of his age.
It appears that the osteopath has provided him with several convenient diagnoses that justify ongoing osteopathic treatment and avoidance of a return to work.
In this case I do not believe there is any evidence of any ribs popping out or other particular musculoskeletal injury that would require such time off work or ongoing treatment.
There were several features identified during the examination that point towards a significant functional component to his complaints with features of exaggeration. In particular the following were noteworthy:
There may have been a mild soft tissue injury which I believe could be considered to have resolved since
I believe he has had sufficient time off work and treatment to ensure that any underlying soft tissue injury has resolved. I believe he has a capacity to return to work.
He needs encouragement and reassurance from his treating practitioners that he has a capacity to get back to work and should be encouraged to do so as soon as possible
51 Dr Mark Patrick Rheumatologist examined the Plaintiff at the request of the Plaintiff's solicitors on 15 October 2007 or nearly 8 months after the workplace accident. At this time the Plaintiff had still not returned to work since his workplace accident. Dr Patrick recorded the following findings:
Clinical examination of his thoracic and lumbosacral spine revealed global movement restriction... There was pain on axial loading. There was diffuse tenderness to palpation in the lumbar, thoracic and cervical spines. There was no focal neurological deficit in the lower limbs.
Examination of his left hand revealed a degree of fourth and fifth finger clawing and sensory findings reduced along the ulnar border of the distal forearm...
He also mentioned persisting posterior cervical headache.
In terms of his back problems. I felt there was little structural abnormality noted on imaging and that the whole clinical presentation was more of muscular and myofascial problems, particularly as this was now eight months post the work incident. The pain on axial loading and the restricted rotation despite an absence of any restriction from the pelvis were in keeping with a loss of protective pain related behaviour. He was started on Endep 10mgm at night to help with muscle relaxation and was to be considered for some form of pain management, functional restoration and multidisciplinary rehabilitation.
I was suspicious of an ulnar nerve entrapment neuropathy in the left arm.
52 In conclusion, Dr Patrick noted as follows:[20]
**53 Mr Paul Kierce Orthopaedic Surgeon examined the Plaintiff at the request of the Defendant's insurer on 11 February 2009 or nearly 2 years after the workplace accident.
54 Mr Kierce summarised his clinical examination and findings as follows:[21]**
soft tissue injury to the lumbar spine now resolved. I found no evidence of dysfunction in the lumbar or cervical spines. It is my opinion that there is symptom magnification, that the worker's subjective complaints are not supported by objective findings.
I would point out that very few musculoskeletal conditions produce constant pain except for infection and tumour. He has no evidence of either of these disorders affecting his spine.
I would gather therefore that his condition has significantly improved since he was examined by Medical Panel, that in fact he has recovered from any soft tissue injury which he may have suffered in the course of his work.
The worker no longer has any evidence of ongoing neck or low back dysfunction.
It is likely that the worker did originally suffer from a soft tissue strain of his lower back but he does not currently suffer from any injury or disease.
In view of the fact that the worker has stated to me that he had always been involved in heavy labouring work since he left school, I was surprised by this statement in view of the details of his work history which had been given in the IPAR report.
It was my impression that the worker's current symptoms are affected by functional overlay.
... The worker has a current work capacity and is fit for pre-injury employment. No restrictions or modifications are required to his pre-injury employment
I have detailed the fact that he is receiving one treatment a week from the chiropractor, which in my view, is no longer appropriate or reasonable. Further, he is taking Tramadol, a very strong painkiller, for which there is no current indication. He no longer needs Mobic.
The worker's prognosis should be excellent, but he did not demonstrate to me any enthusiasm or motivation to overcome his perceived spinal problems.
**55 Dr Roy Karna Rheumatologist examined the Plaintiff at the request of the Defendant's insurer on 24 March 2009 or just over 25 months after the workplace accident.
56 Dr Karna summarised his clinical examination and findings as follows:[22]**
This worker alleges to have injured his lower back in an incident described in the history in February 2007. Subsequently he has had continuing pain and copious manipulative therapies. Radiology of his axial spine was normal and I was unable to detect any structural musculoskeletal axial problem or indeed evidence of nerve root compromise in the upper or lower limbs on physical examination.
Indeed some inconsistencies were noted on examining his axial spine including a positive axial load test and a discrepancy between spontaneously observed and actively allowed back flexion.
On the premise that he originally had a soft tissue injury the natural history for such problems is for improvement with the passage of time and on structural musculoskeletal grounds I can find no evidence of any ongoing injury and believe he is capable of returning to pre-injury duties...
Furthermore I do not believe that there is a role for any ongoing manipulative therapies, be it physiotherapy, chiropractic therapy or osteopathy and he should simply perform axial exercises himself.
57 Dr Karna further responded in answer to specific questions:
there may well be psychosocial issues relevant in terms of his current presentation and I note that Dr Mark Patrick who previously saw him suggested he had a pain syndrome suggesting psychosocial factors are relevant.
There was evidence of functional overlay/exaggeration and psychogenic factors relevant in terms of his presentation.
He has no current ongoing structural musculoskeletal pathology.
Work may have been a significant contributing factor at the outset, but currently is not in terms of his current presentation...
He is currently having chiropractic treatment, which in my opinion cannot be justified. He is taking Tramal, which I believe on the basis of his presentation is also an 'overkill'. Endep is used for the management of pain syndrome and perhaps a psychologist should comment on its use here...
I do not advocate any alternative treatments other than performing exercises himself to strengthen his axial spine... I do not believe that there is evidence to continue manipulative therapies for what effectively is a psychosocial psychogenically driven pain syndrome.
**58 Dr Stephen Stern Consultant Psychiatrist examined the Plaintiff at the request of the Defendant's insurer on 29 April 2009 or just over 26 months after the workplace accident.
59 Dr Stern diagnosed an adjustment disorder with depressed mood. Having regard to the opinions of Dr Karna and Mr Kierce, who both found no evidence of any ongoing physical disorder, Dr Stern posited that the diagnosis may therefore now be a pain disorder with a psychological basis,[23] which is still related to the initial injury.
60 Mr Michael Shannon Surgeon examined the Plaintiff at the request of the Defendant's insurer on 19 October 2009 or 30 months after the workplace accident.
61 On examination Mr Shannon noted that the Plaintiff's thoracolumbar movements were moderately restricted and asymmetrical, associated with minor spasm. There was no muscle wasting about an apparent collapsing weakness involving the left ankle and big toe.
62 Mr Shannon summarised his clinical examination and findings as follows:[24]**
as a result of the incident at work, Mr Fokas sustained a low back strain and possibly a minor lumbar disc derangement.
He had some symptoms consistent with sciatica which have substantially resolved and he scans did not reveal a significant disc prolapse.
Clinically he does have ongoing restriction of movement in his back, but there is no objective evidence of radiculopathy.
I think that he remains unfit for his former occupation as a labourer in the metal industry, but he is quite capable of continuing his present work as a debt collector which is essentially office-based.
**63 Dr Helen Sutcliffe Occupational Physician examined the Plaintiff at the request of the Plaintiff's solicitors on 31 March 2011, or about 4 years 1 month after the workplace accident. At this stage, the Plaintiff said that he had constant pain in the low back on the left, with radiation to the left buttock. He no longer experiences left leg pain. His low back pain wakes him at night and increases with activity. He also experiences neck pain radiating to the upper back and left sided musculature of the thoracic region. His walking limit is 10 to 15 minutes and his sitting limit is 30 to 45 minutes. He can stand for only 5 minutes and drive his car for only 15 minutes. He cannot lift his young children. He performs no household duties and can no longer swim or play social soccer, as he used to.[25]
64 On examination, Dr Sutcliffe noted that the Plaintiff had a normal gait and there was some muscular spasm observed on the left thoracic region. The range of movement of the neck, left shoulder and lumbosacral spine was restricted.
... had sustained onset of nerve root impingement in the lumbar spine leading to left leg radicular pain and sensory symptoms. The left leg symptoms have since resolved and he has persisting lumbar pain which results in limitation of activity.
In addition he has persisting cervical region pain and sensory symptoms to the left upper limb together with findings today consistent with some radiculopathy...
He has limited capacity for standing, walking and driving and copes with sitting restriction by regularly getting up and stretching.
He has no capacity to return to labouring manual handling occupations... He has no capacity to perform any occupation other than sedentary work such as that he currently performs.[26]
**66 Mr Robin Williams Orthopaedic Surgeon examined the Plaintiff at the request of the Defendant's solicitors on 20 July 2011 or 4 years 5 months after the workplace accident. At this stage the Plaintiff said his back was continually sore, but worse at night. He takes analgesics and attends an osteopath every two weeks. His pain in the left lower limb has disappeared but he still feels pain in the left buttock.[27]
His gait was even and his thoraco lumbar spinal posture was normal. There was no muscle spasm...
The range of movement he performed was restricted in that flexion was approximately half the normal range and although he had actually flexed to the right, he resisted lateral flexion to the left, complaining that the movement caused increased pain in the left buttock.
I performed the straight leg raising test with him seated on the edge of the examination couch. On each side I could elevate the limb to the horizontal position. The test did not cause him to complain of pain in the lower limb to suggest any persisting radiculopathy.
He had normal tendon reflexes of his knees and ankles and the sensibility of the skin of his legs when tested to light touch was normal.[28]
68 In conclusion, Mr Williams noted that:[29]
Mr Fokas is probably suffering from low lumbar intervertebral joint malfunction, particularly on the left sided facet joints.
He probably suffered acute lower lumbar myofascial strain on the left side, although the history suggests he did have significant radicular symptoms. The findings of the CT and MRI did not confirm neurological involvement.
A facet joint injection could relieve his symptoms, but I think there is a likelihood that he will experience recurrence of low back pain over the years.
I find it difficult to directly relate his present condition to the incident of injury he sustained on 19.02.2007. However, there is continuity of symptoms from that time.
69 This application falls to be determined in accordance with Section 134AB of the Act. Sub-section 134AB(2) prescribes the conditions which must be satisfied before a compensable injury may give rise to an entitlement to recover damages:
(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury and arose on or after 20 October 1999.[30]
70 For the purpose of the current application "serious injury" means:
(a) permanent serious impairment or loss of a body function_[31]_
71 Section 134AB (38)(b), so far as it is relevant to the present case, sets out what must be shown in order to establish that the impairment or loss of a body function [under paragraph (a) of the definition] is "serious". It does this by reference only to the consequences to a worker.
(38) For the purposes of the assessment of "serious injury" in accordance with the sub-sections (16) and (19)-
(b) the terms 'serious' and 'severe' are to be satisfied by reference to the consequences to the worker of any... impairment or loss of a body function... with respect to-
when judged by comparison with other cases in the range of possible... ... impairments or losses of a body function ....
72 Section 134AB (38)(c) provides, so far as it is relevant to this case, as follows:
(c) an impairment or loss of a body function ... shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence ... is, when judged by comparison with other cases in the range of possible impairments or losses of a body function,... fairly described as being more than significant or marked, and as being at least very considerable;
**73 The physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury.[32]
74 I must determine whether the restrictions and limitations with respect to pain and suffering to which the Plaintiff is now and will remain subject, constitute a consequence which can be fairly described as being more than significant or marked, and as being at least very considerable when judged by comparison with other cases in the range of possible impairments.**
75 I must assess the consequences in terms of pain and suffering which the Plaintiff's injury has occasioned to him, and determine where the facts of this case sit in the broad spectrum of cases. This task involves:
A value judgment in which matters of fact and degree, and of impression, are operative.[33]
... not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of the consequences, may be informed, to some extent, by what is retained.[34]
**77 Recent decisions of the Court of Appeal have endeavoured to analyse in some detail, almost by way of a checklist, the kinds of matters which should be considered when assessing the seriousness of the consequences.[35]
78 In Haden Engineering Pty Ltd v McKinnon[36] Maxwell P. undertook a useful analysis of the kinds of considerations to which judges have routinely had regard, when considering pain and suffering consequences.
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the Plaintiff's:
Whether and to what extent the matters listed are relevant to the court's task in a particular case will, naturally, depend on the circumstances of the case.
When judging the pain and suffering consequences for the Plaintiff by comparison with other cases, it is relevant to look at the Plaintiff's life expectancy in order to determine the likely period for which those consequences will be experienced.
**80 There are two further considerations worthy of specific mention:
a) First, in addition to a consideration of the limitations now experienced by the Plaintiff as a consequence of injury, it is also relevant to consider what activities he is still able to engage in post injury; and
b) Secondly, a court must be careful not to inadvertently disadvantage the stoic Plaintiff whose pain and suffering may appear to be minimised by an attitude of perseverance and strength of character.[41]**
81 The subjective approach was defined by Marks J in Ninkovic v Pajvancek[42]:
I think that for an impairment to be serious, it must have consequences which are serious for the Plaintiff , and having regard to the context of the statute in which this definition appears, I am of the opinion that a serious impairment which is long-term is one which has a serious consequence for the Plaintiff in the form of disablement from work or interference with enjoyment of life. [emphasis added]
**82 In applying a subjective test in this context, it must be kept in mind that the object of the inquiry under subsection (a) is to determine the seriousness of the impairment - in other words, whether the impairment is, on the appropriate comparative basis, certainly more than significant or marked, and at the least very considerable. For this purpose, it is necessary to see how the impairment has affected the plaintiff and whether the impairment causes pain and suffering. However, it does not mean that the particular anguish or distress suffered by the plaintiff as a result of the plaintiff's attitude towards the impairment is to be taken into account. In other words, impairment is not more or less significant or marked or very considerable by reason of the attitude of the plaintiff to the impairment. The plaintiff's perception of the impairment is not the test.
83 The impairment's seriousness should be judged on its own terms and not on the basis of how the Plaintiff perceives or responds to it. This proposition was endorsed in Ingram v Ingram:[43]**
...accepting the appellant's evidence that the degree of self-consciousness, loss of self -esteem and insecurity to which she deposed are legally relevant, her application would still fail. Personal distress of the kind to which she testified, however genuine, does not, in my view, elevate a misfortune to the level of serious injury.
**84 This aspect has some relevance in the context of this case where the Plaintiff's clinical presentation demonstrates non organic signs; and the histories given to some doctors contain clear exaggerations of his limitations. I will return to these matters, particularly in the context of identifying the relevant injury and consequent permanent impairment.
**86 While not definitive, where the income earning capacity of an injured worker is significantly reduced or lost altogether, particularly where the worker has been previously engaged in full time employment, the consequences for the worker will more readily satisfy the serious injury threshold.[44].
87 In this case, the Plaintiff has eventually returned to full time employment. He no longer undertakes heavy manual work and he continues to cope with work duties, which are essentially sedentary in nature.**
**88 In the first instance, the perception of pain is by its nature extremely difficult to measure. An examining doctor will always take their patient and their patient's history, at face value. Medical experts will assess pain and its underlying cause by employing objective clinical techniques, assessing the plausibility of complaints as well as correlating all of these matters with diagnostic results. Assessment of a plaintiff's credit and reliability are important factors to take into account in the overall mix, but they are not necessarily determinative. Some plaintiffs are simply poor communicators, poor historians, and/or are easily confused.
89 In this case, the Plaintiff's credibility per se has not been the subject of any particular challenge; and as previously acknowledged, I am satisfied that the covert video surveillance shown to the Court and the extensive video surveillance which had otherwise been taken, did not contain anything inconsistent with the Plaintiff's evidence.**
**90 I have set out above a brief synopsis of evidence. However, my findings and reasons for judgement have only been determined after careful re-reading of the whole transcript of evidence and tendered documents.
91 This has been a particularly difficult case to assess.
92 I readily acknowledge that, taking the Plaintiff at face value, the consequences detailed in his affidavits and oral evidence, would satisfy the statutory test for serious injury. I am satisfied that such aggregate of consequences can fairly be described as being more than significant or marked, and as being at least very considerable, when judged by comparison with other cases in the range of possible impairments of the lumbar spine. In making this assessment, I would have particular regard to:
b) the impact upon his role as a father of very young children;
c) his effective abandonment of prior recreational activities;
d) the extensive constraints which are now apparently placed upon his domestic and household duties;
e) the adverse impact upon his personal relationship with his wife;
g) the prospect of further and possibly continuing treatment to be administered by Dr Muir.
93 However, in the end I am obliged to dismiss this Application, on the basis that I cannot be satisfied, on the evidence before me, as to the threshold questions, namely:
b) is the impairment said to be produced in consequence, permanent or likely to last for the foreseeable future?
94 I have set out extracts from the various medical reports in some detail. These highlight a very significant difference of opinion, particularly in the assessment made by medico legal specialists, including at a very early stage, prior to any treating specialist becoming involved. I note that Plaintiff's Counsel sought to dismiss these opinions on the basis that they were no longer current. I disagree. The essence of these opinions is that the Plaintiff, at most, suffered a soft tissue injury which has resolved; the plethora of symptoms which have emerged since are not explicable by reference to any radiological investigation or other identifiable organic cause; and the osteopathic treatment and significant pain medication is contraindicated.**
95 The initial CT scan performed on 23 February 2007 revealed a small central disc protrusion at L5-S1. By 8 October 2007, an MRI scan was completely normal. A further MRI scan in February 2010 was similarly normal. Accordingly, there is no objective radiological support for the Plaintiff's current claimed lumbar spine impairment.
**96 Immediately following his work place injury, the Plaintiff complained of left buttock pain and tenderness over the left iliac joint area. Dr Wattegama initially diagnosed muscular strain, which was steadily improving until aggravated at home, 2 months later.
97 Subsequent to the work place injury, the Plaintiff developed a range of symptoms of pain and restricted movement in his cervical and thoracic spine, and his left shoulder, as well as headaches. These complaints were extensively investigated without any underlying pathology being identified.
98 In early April 2007, the Plaintiff was examined by Dr Barton Occupational Physician, who identified a significant functional component to the Plaintiff's complaints and presentation. Dr Barton concluded that there may have been a mild soft tissue injury which had otherwise resolved. Significantly, Dr Barton also intimated that the Plaintiff's recovery was being compromised by prolonged osteopathic treatment.
a) within 8 months of the work place injury, Dr Patrick discounted any structural cause, attributing the diffuse pain symptoms and global movement restrictions to myofascial (muscular) pain and non organic factors; and
b) two years after the work place injury, both Mr Kierce and Dr Karna, effectively made identical assessments to Dr Barton.
100 By April/May 2007 Dr Wattegama diagnosed musculoskeletal pain, which continued to improve while the Plaintiff complained of worsening neck pain.
101 By July 2007, Dr Wattegama noted that although the lumbar pain was 75% improved, the Plaintiff complained of worsening neck and shoulder pain with frequent headaches.
102 Dr Kiley, who assumed care of the Plaintiff from August 2007, similarly took a history of worsening and more extensive pain, which now included his left anterior chest and left arm numbness.
103 Subsequently, in the absence of MRI findings, and no other objective clinical signs, Dr Kiley diagnosed soft tissue injury, facet joint dysfunction, associated muscles spasm and myofascial pain. However, while seeking to explain the Plaintiff's complaint of continuing pain, this diagnosis bears no correlation with any radiological investigation or neurological signs; and does not explain the Plaintiff's increasingly wide ranging symptoms, often in the context of improving lower back pain.
104 In October 2007, Dr Patrick Rheumatologist noted the Plaintiff's global movement restriction and diffuse tenderness to palpation of his thoracic and lumbosacral spine. Dr Patrick sought to explain the Plaintiff's symptoms in terms of muscular and myofascial problems, with little in the way of structural issues contributing. Dr Barton also suggested a range of other non organic factors likely to be contributing to dysfunction.
105 Mr Kierce Orthopaedic Surgeon and Dr Karna Rheumatologist assessed the Plaintiff in February and March 2009 respectively.
106 Mr Kierce concluded that the likely soft tissue injury to the lumbar spine had now resolved and the Plaintiff did not suffer any current injury or disease. He could find no evidence of dysfunction in the lumbar or cervical spines. However, he did find symptom magnification and a presentation affected by functional overlay. Mr Kierce also considered that there was no indication for continued chiropractic treatment; or the medication Tramadol or Mobic.
107 Dr Karna's assessment and conclusions were equivalent in all respects, to those made by Mr Kierce. The only ongoing treatment which he recommended was for the Plaintiff to perform exercises himself, to strengthen his axial spine.
108 In April 2009 Dr Stern diagnosed an adjustment disorder with depressed mood and relying upon the assessments made by Dr Kierce and Dr Karna, suggested that the Plaintiff may now be suffering a pain disorder with a psychological basis, related to the initial injury.
109 I have included Mr Shannon's report for completeness, although it was not relied upon by the Defendant, having been requested in the context of an impairment assessment. For present purposes it does not assist me in clarifying the nature of any residual injury or likely permanent impairment.
110 The assessment conducted by Dr Sutcliffe appears to be predicated upon a history which, in significant respects, is more severe than the kinds of restrictions to which the Plaintiff has admitted in evidence. For instance, he clearly does drive his car for more than 15 minutes; and he clearly admitted to performing some household duties. No other doctor diagnosed nerve root impingement and the doctor has not clarified her definitive diagnosis.
111 Mr Williams assessment found no muscle spasm[45] and a number of inconsistent features on clinical examination. Mr Williams appears to attribute the Plaintiff's ongoing symptomatology to low lumbar intervertebral joint malfunction, following an acute lower lumbar myofascial strain. However, Mr Williams found it difficult to directly relate his present condition to the work place injury, noting only the continuity of symptoms since that time. He appears to agree with Dr Clayton Thomas and Dr Muir, that facet joint injections may relieve his symptoms.
112 I note from Dr Kiley's last report dated 24 May 2012, that at that stage he understood that the diagnostic medial branch blocks had made the Plaintiff's pain worse and he was apparently unaware that the Plaintiff was proposing to undergo further treatment with Dr Muir.
113 In summary, in my view there is a very powerful body of specialist opinion [including an Occupational Physician, Orthopaedic Surgeon, and Rheumatologist] who have roundly discounted any persisting injury and have otherwise explained the Plaintiff's presentation essentially in terms of psychological factors. Having particular regard to these opinions and to the total absence of any objective radiological findings or neurological signs, I am unable to be satisfied either as to the precise nature of any underlying organic injury; or whether such injury is referable to the workplace injury.**
**114 If, contrary to my above conclusions, I were to accept that the Plaintiff continues to suffer consequences referable to the work place injury, then I am still faced with the task of identifying the nature of the Plaintiff's current impairment and whether it can reasonably be described as permanent. This task is made all the more difficult because the Plaintiff's complaints of pain and restricted movement have extended well beyond his lumbar spine.
115 The impairment has been variously described as arising from:
a) facet joint dysfunction and myofascial pain [Dr Kiley];
c) low lumbar intervertebral joint malfunction [Mr Williams]; and
d) damage to the lumbar spine and sacro iliac joint [of an unspecified nature - Dr Muir].
116 In my view, taking all of the circumstances into account, the above descriptions of impairment are speculative and more consistent with a condition which cannot be explained by reference to any physical basis.
117 The evidence in relation to the Plaintiff's response to diagnostic medial branch blocks was somewhat unsatisfactory in the following respects:
a) The latest opinion from Dr Kiley did not appear to reflect the evidence of the Plaintiff;
b) The Plaintiff attested to short-term relief only; and
c) Dr Muir reports that the Plaintiff is nevertheless a good candidate for radiofrequency neurotomy.
118 In August 2011, Mr Muir assessed the Plaintiff's long-term prognosis as good, noting that he had made a good recovery as a consequence of exercise, although he was likely to suffer from ongoing discomfort in this part of his body for the indefinite future. Mr Muir referred to the Plaintiff suffering ongoing pain and minor distress, which impacted upon his social and domestic lifestyle only to a modest degree.
119 Mr Muir further advises that if the Plaintiff underwent the radiofrequency neurotomy then, without any guarantee, the Plaintiff would be expected to experience 'a significant and prolonged improvement in [his] pain with commensurate change in function and reduction in medication requirements.' In light of the Plaintiff's claimed intention to undergo this treatment, it is at the very least premature to designate the current claimed consequences as permanent.**
**120 For the reasons stated I am satisfied on the balance of probabilities that any workplace injury sustained by the Plaintiff has now resolved. However, to the extent that the Plaintiff may be said to continue to suffer consequences from impairment referable to the workplace injury, I am not satisfied that such consequences can be adequately identified; but if they can be referable to the workplace injury, I am not satisfied that such consequences are permanent.
121 Accordingly, I am not satisfied that the injury suffered is a "serious injury" within the meaning of the Act.**
**122 The Plaintiff's Application for leave to commence common law proceedings for the recovery of damages for pain and suffering, is refused.
124 After hearing the parties on the question of costs the following orders were made:
125 The parties agree on costs, however in default of agreement the following orders shall apply:
a) Plaintiff to pay the Defendant's costs, including reserve costs, on County Court Scale D up to and including 31 August 2011 and thereafter in accordance with the County Court Scale of Costs, to be assessed by the Costs Court in default of agreement; and
b) Certify for the reasonable costs of the preparation, filing and service of the Court Books, the first copy at scale and each subsequent necessary copy at the commercial rate to be determined by the Costs Court, including any necessary attendances.**
[1] Affidavits sworn 4 February 2010; 28 June 2011; and 25 July 2012.
[2] From 20 February 2007 to 8 June 2012 compiled by Dr Wattegama and Dr Michael Kiley
[5] Cf histories given to doctors, extracted below.
[30] By Act No. 95/2003 s.3(8) the words "employment of that nature was a significant contributing factor, and" were omitted from sub-section 134AB(2) as from 3 December 2003, which was before the injury relied upon by the Plaintiff in this case.
[33] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
[34] Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
[35] Maxwell P's comments in Haden Engineering [cf Buchanan and Nettle JJA who both took a different view] have been followed in Sutton v Laminex Group Pty Ltd (2011) VSCA 52.
[36] [2010] VSCA 69 @ paras 9-17; cited with approval in Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ paras 46-50
[38] Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ para 50
[39] Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ para 50
[40] Hadden Engineering Pty Ltd v McKinnon [2010] VSCA 69 @ paras 16 to 17
[41] For instance refer to comments of Nettle JA in Dwyer v Calco Timbers (2008) VSCA 260
[43] [1996] 2 VR 435 at 438 -439 per Callaway JA
[44] Cropp v TAC 1998 3 VR 357 at 360-361 per Ormiston J.A who addressed how loss of income earning capacity is relevant to a determination of serious injury for the purpose of the Transport Accident Act 1986; See also Maloney v Mulling 1994] 1 VR 436 at 442
Fokas
Staff Australia [2012] VCC 1232