Harris v DJD Earthmoving Pty Ltd [2015] VCC 775

County Court of Victoria|2015-06-16|Before: Mr J

Judgment: Leave granted to the plaintiff to issue proceedings at common law for damages for pain and suffering on account of injury suffered in the course of his employment with the defendant between 2007 and 2012. Claim for leave to proceed for loss of earning capacity damages dismissed.

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16) of the Accident Compensation Act 1985 ("the Act") for injuries suffered by the plaintiff throughout the course of his employment with the defendant between 2007 and 2012.

3 In order to obtain the necessary leave, the Court must be satisfied, on the balance of probabilities, that the plaintiff has suffered a "serious injury".

4 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.

5 The plaintiff brings this application pursuant to clause (a) of the definition of "serious injury" found in s134AB(37) of the Act. There, "serious injury" is defined relevantly as meaning:

"(a) permanent serious impairment or loss of a body function;

... ."

6 The body function relied upon in this application pursuant to paragraph (a) is the lumbar spine.

7 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

Outline of Section 134AB

8 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

9 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e), (f) and (g) of the section impose specific burdens in relation to a claim for loss of earning capacity.

10 By ss(38)(c) of the section, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by a comparison with other cases in the range of possible impairments, or losses of a body function, may be fairly described, at the date of the hearing, as being "more than significant or marked" and as being "at least very considerable".

11 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.

12 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

13 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

14 Subsection (38)(g) requires questions of rehabilitation and retraining to be considered in determining whether the 40 per cent loss has been established.

15 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

16 I have applied the principles identified by the Court of Appeal in Barwon Spinners & Ors v Podolak[1] in reaching my conclusions.

17 The defendant accepted liability to pay weekly payments of compensation, commencing 29 October 2012, upon receiving a Claim Form dated 7 November 2012.[2] The injury described therein was:

"BACK - 3 LOWER DISC DAMAGE. RIGHT LEG SCIATICA."[3]

"BACK PAIN GOT CONSTANTLY WORSE.

OPERATING MACHINE.

VARIOUS SITES - GRADUALLY GOT WORSE."[4]

19 The defendant submits, in this case, that I should not be satisfied that the plaintiff suffered more than a musculoligamentous injury which was finite in its duration, and the consequences of which had ceased by the time of hearing.[5]

20 Further, the defendant submits that the histories provided to the various medico-legal examiners in this case are substantially lacking, because the plaintiff had not revealed to any of them, prior to November 2014, that he was a long-term user of illicit drugs, which must be clouding the clinical presentation.

21 Allied to this last matter, it was submitted that the plaintiff had not been fully frank about his engagement in jet ski and fishing activities and this would, in turn, affect the medico-legal examiners' opinions and the consequences proved in the hearing.

22 Further, it was submitted that video surveillance shown of the plaintiff on 9 and 13 March 2014[6] demonstrated a greater range of movement and ability than admitted by the plaintiff at various times, and included the action of his lifting a rather heavy dog to waist height.

23 Additionally, it was submitted that the plaintiff had, on numerous occasions, failed to attend a pain management clinic so that the "seriousness" of his injury could not be established either in a pain and suffering or loss of earning capacity category.

24 Additionally, the plaintiff's general practitioner had indicated that he would refer the plaintiff to an alcohol and drug dependence facility after his WorkCover case had been completed. It was submitted this should have been done prior to the WorkCover case being heard.

25 There was no mention of any substance abuse by the plaintiff in his first affidavit sworn 11 June 2014.[7] In his second affidavit sworn 10 February 2015,[8] at paragraph 15, he swore:

"In the past, I have occasionally used cannabis and amphetamines, which I am not proud of. Since the injury, I have been drinking about four cans of beer a day. Now, I have a joint most nights. I have been doing this to try and cope with the back pain, to relax and to help me get to sleep. Occasionally, I have also used some amphetamines."[9]

26 Further, in paragraph 16, he admitted that he had a motorcar accident in February of 2014 and, as a result, his "... licence was suspended for about six months for drink driving".[10]

27 In cross-examination, it was put to the plaintiff that he gave a history to his treating general practitioner, Dr Williams, on 9 November 2014 to the following effect:

"Drug, speed and alcohol addiction and wife less so. Declared today re drug use. 30 years on and off. Used heroin in [the] past."[11]

28 The plaintiff denied giving that history but stated that he told Dr Williams, on or about that date, that -

"... I may have a problem with amphetamine use, because I have used it since I was a child. I have used them - probably the most regular in the first year of my back. ... After that I was well aware of the fact that it was all over the paper that ice - that it's highly addictive. So I didn't use it anywhere near as much. I only used to use speed, not methylamphetamine or whatever it's called. From that moment on, I had slowly weened myself away. The reason I told my doctor, in case after this date of the court hearing ... if I needed help."[12]

29 Further, the plaintiff agreed that it was the first time that he had told Dr Williams of his substance abuse.[13]

30 Further, it was put to the plaintiff that when he saw clinical neuropsychologist, Mr James Drury, on 23 January 2015, that he gave a history to the following effect:

"Usually drinks some alcohol each day, described his consumption at about four cans of full strength beer on average, but he acknowledged on some days he might drink up to 18 cans."[14]

"Yes, I do acknowledge that, sir. Also last night when I was reading through reports they varied from 'I'm an alcoholic to I drink two cans - four cans of beer,' which I probably do every day, Your Honour. On the weekend sometimes you know what, I do over-indulge."[15]

32 Further, it was put to the plaintiff he told Mr Drury:

"He used to use cannabis intermittently, but now uses more regularly a joint at night"

and the plaintiff agreed that this was correct.[16]

33 It was then put to the plaintiff that Mr Drury recorded:

"You've been a recreational user of amphetamines, including intravenously, since about the age of 16. Did you tell him that?

"[If] it's written in the report so yes, and yes I have been, yes."[17]

34 It was then put to the plaintiff that he told Mr Drury that the pattern had continued. He replied:

"I can't recall whether I told him that, no, but I have used amphetamines since I was approximately 16 years of age intravenously, yes."[18]

35 However, it was later put to the plaintiff that he had failed to tell medico-legal practitioners that he had a "longstanding and considerable drug addiction", both to alcohol and to illicit substances.[19] He replied:

"I'm not addicted to drugs, sir. ... Look, I might - I'll retract that statement, Your Honour. I might be addicted to alcohol, but - well, I am an alcoholic, because I have a can every day. So I have got an alcohol problem, sorry."[20]

36 It was then specifically put to the plaintiff that he failed to tell doctors, Mr Troy, Mr Flanc, Mr Brownbill, Professor Bittar, Mr Timms and Dr Kenna, about his illicit substance and alcohol addiction in order to mislead them as to the true state of his disability. His reply was:

"No. No, Your Honour. Not at all. Not at all. ... If they'd had asked the question I would have told them the truth, Your Honour."[21]

37 In this regard, the defendant had the plaintiff examined by consultant psychiatrist, Dr Rasanjali Rathnayake, on 13 August 2013.[22]

38 Under a specific heading of "Substance Use History", Dr Rathnayake stated, somewhat elliptically:

"Some information is withheld at the patient's request. Mr Harris said that he consumes about three to five glasses of beer a day. He does not smoke cigarettes."[23]

39 When reviewed again by Dr Rathnayake on 18 July 2014, under the same heading, it was stated:

"Mr Harris said that he would consume about nine cans of beer on some days. His alcohol intake ranges from three cans of beer a day to nine cans of beer daily. He said that he does not drink alcohol on every day of the week.

He does not use illegal substances. He smokes about 20 cigarettes a day."[24]

40 Interestingly, there is no further reference to information being withheld at the plaintiff's request.

41 In any event, when reviewed again on 19 December 2014, Dr Rathnayake records, under the same heading:

"Mr Harris said that he consumes about four cans of a beer a day and sometimes more. He smokes marijuana at night. He said that he smokes about one 'joint'. He also smokes 20 cigarettes a day."[25]

42 It would appear to me that these respective histories are consistent with the defendant's submission that the plaintiff had decided not to give histories or seek treatment for substance abuse before November 2014 but equally, it is consistent, at least from that time onwards, that the plaintiff was prepared to reveal the facts of his substance abuse to medico-legal examiners if he was indeed asked. There does not seem to be any specific denial about substance abuse contained in the histories of the medico-legal practitioners put to the plaintiff in cross-examination.

43 Further, the plaintiff's general practitioner referred the plaintiff to clinical psychologist, Dr Trevor Corran, in November 2014, who in turn reported:

"Mr Harris has a back injury and severe pain. He has also developed a substance abuse disorder in his attempts to cope with his pain."[26]

44 In any event, in further cross-examination, it was put to the plaintiff that he gave a history to his general practitioner on 26 November 2014 to the following effect:

"Says never used heroin in his life. Uses marijuana."[27]

"Well, as I stated to the magistrate before, sir, I have used amphetamines, I have used marijuana, but have I injected heroin or cocaine, ... no, I haven't."[28]

45 It was further put to the plaintiff on the above date that he gave a further history as follows:

"Has used speed, amphetamines and ice once every three months."

"Well, I would have just said one of the things, because they're - all three of them are the same drug."[29]

"Has used speed, amphetamines and ice once every three months."

"If he says that, well, it's a clinical note and he's a doctor, it must be right. But I disagree totally with the three month period."[30]

47 When asked how often he was using the drugs last year, he replied:

"Once every two months. No, can I retract that your Honour? Probably once every month."[31]

48 In all, I do not consider the plaintiff has tried to mislead the Court with respect to his substance abuse but rather his evidence with respect to same can, to a certain degree, be unreliable as to the nature and extent of same because of the addiction itself. In those circumstances, I consider it important to identify objective corroborative evidence, if it exists, as to the nature and extent of the physical injury and its consequences.

"... I used to go fishing about every second week with my mates usually on a boat. Since the injury, I have hardly gone fishing. I don't remember going fishing since the injury. ... ."[32]

50 These last two sentences appear to be internally inconsistent. In any event, in his second affidavit,[33] the plaintiff altered this evidence as follows:

"... This should be changed to, 'Since the injury, I remember going fishing about two times'. Both times I went to Bemm River in East Gippsland with a mate of mine."[34]

51 In cross-examination, the plaintiff changed "about" to "exactly".

52 Further, in his first affidavit, the plaintiff swore:

"... Nine months before the injury, I bought a jet ski. I used to go jet skiing in the bay with mates and spend a whole day on the jet ski. After the injury I remember one time going with my mates jet skiing. My mates went jet skiing for most of the time and I was on the jet ski for a few minutes before it was too painful on my back."[35]

53 In his second affidavit, the plaintiff referred to this representation, and changed his evidence to:

"... 'After the injury, I remember about a couple of times, going with my mates jet skiing'. Both times my mates did most of the jet skiing and I was on the jet ski for a few minutes or so, as I found it difficult with my back pain."[36]

54 When it was put to the plaintiff in cross-examination that in his first affidavit he was deliberately trying to mislead the reader, he replied:

"No, it wasn't. No, it wasn't. It was a - it was a mistake on my behalf."[37]

55 When cross-examined about the use of the jet ski, the plaintiff said the last occasion was approximately one year ago at Safety Beach.[38]

56 On a second occasion jet skiing, the plaintiff was at Glenmaggie, where he stated:

"... I motored it out from the shore at idle pace, and I came back on because my friend can't put it on the trailer. So I - at walking pace, it might be a little bit faster than walking pace, I drove it on. It's the only time I've been on a jet ski."[39]

57 The plaintiff further confirmed that he had been on the jet ski "for a few minutes or so".[40]

58 Having seen the plaintiff in the witness box over a protracted period of fairly intense cross-examination, I formed the view that his admitted alcoholism and marijuana use was more probably the reason for the discrepancies between the two affidavits rather than a deliberate intention to mislead the Court. Further, on another occasion, he admitted that he had stayed indoors to avoid being subjected to surveillance, of which he was aware. In essence, I consider the plaintiff's memory to be more on the spectrum of befuddled rather than evasive. It is thus in this setting that I have looked to corroborative evidence of the central elements of his claim.

59 The plaintiff gave evidence that he was still in receipt of weekly payments of compensation as at the date of hearing on account of the injury described in paragraphs 17 and 18 above.

60 The plaintiff's treating general practitioner, Dr Peter Williams, in a report dated 9 November 2012, stated that the heavy labouring work "... on a regular basis in his employment involving driving earthmoving equipment ..." had caused a lumbar disc rupture at the L5-S1 level.[41]

61 At that stage, Dr Williams considered the plaintiff needed to find light duties in the future, with certain limitations.

62 The plaintiff's solicitors had the plaintiff examined by consultant neurosurgeon, Mr David Brownbill, on 6 December 2012, 19 December 2012, 15 July 2014 and 16 December 2014.[42]

63 On the first occasion, Mr Brownbill took a consistent history and on examination, related:

"... he was alert and cooperative without embellishment appearing straight forward in his presentation. ... Active thoraco lumbar spinal movements were a half of full in flexion (this giving rise to right leg pain) ... On circumferential measurement the thighs were equal at 47 cm, the right lower leg was 38 cm, the left 39.5. Examination of the lower limbs did not show any abnormality of power, tone, reflexes or sensation to touch."[43]

64 Mr Brownbill considered that, as a matter of probability as a result of his work actions, the plaintiff had sustained aggravation of the lumbar spine degenerative changes with likely disc derangement giving rise to pain.[44]

"Clinical experience indicates that once lumbar spine degenerative changes are aggravated on occasions the resulting pain may continue indefinitely in a fluctuating manner even when the aggravating factors cease.

I anticipate that some pain will continue in a fluctuating manner.

Should signs of radiculopathy develop or his right leg pain increase severely, then consideration may be needed to be given to decompressive lumbar surgery."[45]

"Aggravation of lumbar spine degenerative changes is consistent with occurring as a result of the described repetitive ongoing heavy physical work activities."[46]

67 As to the plaintiff's work capacity, Mr Brownbill stated:

"Noting his education being limited to Year 8, his work activities having always involved heavy physical components, his demonstrated multiple level lumbar spine degenerative changes and his described ongoing activity related back and right leg pain, I consider that on probability he would have difficulty performing any work for which he was suited in an ongoing or reliable fashion."[47]

68 On 15 July 2014, the right lower leg on circumferential measurement was 38 centimetres compared to the left at 39 centimetres.

69 As to the plaintiff's emotional state, Mr Brownbill stated:

"He was alert and cooperative without embellishment with a flattened affect and immobile facies. He was a little teary intermittently and was unshaven with a demeanor of depression, however he appeared straight forward in his presentation. ... ."[48]

"As started previously I consider this man has sustained aggravation of pre existing lumbar spine degenerative changes with likely intervertebral disc derangement which is consistent with occurring as a result of the described repetitive ongoing heavy physical work activities."[49]

"... I consider that on probability he would have difficulty performing any work for which he is suited in an ongoing or reliable fashion."[50]

72 On the last occasion Mr Brownbill examined the plaintiff on 16 December 2014, he noted the plaintiff was prescribed Pristiq, OxyContin (up to 100 milligrams a day), Valium and occasionally, Tramadol or Mersyndol Forte.[51]

73 Thereafter, Mr Brownbill noted a flattened affect with difficulty providing concise descriptions and with a demeanour of likely depression and anxiety.[52] However:

"... On circumferential measurement the thighs were equal at 45 cm, the right lower leg was 38 cm, the left 39.5 cm. Examination of the lower limbs showed at first a giving way weakness of right great toe extension but with encouragement power was full and equal in all muscle groups. Reflexes were present and symmetrical. Testing for sensation to touch did not show any abnormality."[53]

74 Additionally, Mr Brownbill recited that the MRI scan reported 14 March 2013 considered that:

"... a major ongoing contribution to his physical lower back symptoms would be that of specific injury sustained at L5-S1."[54]

"As stated in my earlier report noting his education being limited to Year 8, his work activities having always involved heavy physical components and his described ongoing activity related back and right leg pain, I consider that on probability he would have difficulty performing any work for which he was suited in an ongoing or reliable fashion."[55]

76 On 7 March 2013, the plaintiff was examined by treating neurosurgeon, Mr Craig Timms, who took a relevant history of injury, and then stated:

"... He had some pain relief and the symptoms have progressed to the point where he is having trouble walking, standing or sitting for any period of time, with low back pain and pain down the right leg at times to the foot. ... ."[56]

"... decreased straight leg raising and weakness in the right leg compared to the left. ... The CT scan he had which was quite old, suggest[s] disc protrusions at L3-4, L4-5 and L5-S1, which may have progressed since that time and I will arrange for him to have an MRI scan plus review. Unfortunately, he has had an epidural injection which did not help. ... ."[57]

78 On examination, Mr Timms noted there was decreased straight leg raising in the right leg with mild weakness of Grade 4/5 power in the right and 5/5 in the left.

79 An MRI scan of the plaintiff's lumbar spine taken on 14 March 2013 revealed there was "disc injury at L5-S1 with some mild foraminal stenosis at L5-S1 and facet joint degeneration". Accordingly, he stated he was treating the plaintiff for back pain and right leg sciatica associated with heavy manual labour whilst working as a heavy machine operator. Mr Timms noted weakness in the right leg and pain and a CT scan that suggested disc injuries and protrusions at all three levels in his lumbar spine. At that stage, the plaintiff was "completely incapacitated for his occupation".[58]

80 In a report to the plaintiff's solicitors dated 25 April 2013, Mr Timms related a history that the plaintiff smoked twenty cigarettes per day and "consumes three to four cans of alcohol a day".[59] His current medications at that time included OxyContin, 15 milligrams per day, Endone and Valium to sleep.

81 In a further report dated 28 May 2013, Mr Timms reported to the general practitioner that the recent MRI scan showed:

"... quite a marked disc injury with some inflammation at L5-S1 and mild disc bulging. The rest of the spine is showing the signs consistent with starting to wear out. He has already had an epidural cortisone injection, which did not help a great deal."[60]

"He is likely to benefit from a pain management course and review and I think it is likely to help get his medication optimized and hopefully have him functioning better as well.

With regard to his employment, the heavy manual work that he has done in the past, he will not be able to return to, as it was not really possible in the wake of his symptoms. From my point of view, I think he is incapacitated in this regard.

I suspect that he will need to maintain the current medications that he is on and again a review by [a] pain management specialist is likely to be of assistance."[61]

83 On 13 March 2013, the plaintiff was examined on behalf of the defendant by Dr Clive Kenna, a consultant in musculoskeletal pain management.[62] He took a history that there was no one specific incident, but the plaintiff started to have increasing back problems from the previous twelve to twenty-two months, usually low back, but then becoming more constant, with radiation into the right leg. His medications at that time consisted of OxyContin, 10 milligrams twice a day; Valium, 5 milligrams twice a day, and Norgesic for night pain. He had had two epidural injections but they had not been effective. A CT scan dated 29 October 2012 confirmed multi-level disc herniations, particularly involving the right L5-S1, with nerve root encroachment.[63]

"... fairly intense low back pain and symptoms into the right buttock. In that respect, he had an altered gait and this rapidly became apparent. He had fairly diminished straight leg raising but associated with that were signs of dural tethering, as he had 2 cm wasting of the right calf. There was absolutely no right ankle reflex and there were clear indications of significant decreased S1 nerve root power on the right in comparison with the left leg which was pristine."[64]

"Classic signs in relation to radicular symptoms involving the right S1 nerve root."[65]

86 Dr Kenna further noted that suitable duties were far too premature at that stage and there did appear, on reading detailed documentation from WorkCover, that things came to a head pertaining to the plaintiff's back after a substantial heavy workload from 2011 onwards, with increasing back discomfort.[66] His provisional diagnosis at that time was discogenic pathology impacting on the right L5-S1 nerve root, particularly the S1 nerve root. Further, the condition had not resolved and he accepted absolutely that the work would be a contributing factor. At that time, the plaintiff was unfit for work or for "suitable employment".[67]

87 Professor Richard Bittar, consultant neurosurgeon, examined the plaintiff on 3 September 2013 and again on 12 January 2015.[68]

88 On the first occasion, the plaintiff was complaining of lower back pain and bilateral sciatica, with his right leg being more severely affected than the left.[69] On examination, the plaintiff walked with a markedly antalgic gait. His range of lumbar spine extension was more severely restricted and painful. He had right-sided tenderness over the lumbosacral joint and sacroiliac joint -

"... with paravertebral muscle guarding. ... He had global weakness in his right lower limb which appeared to be mainly pain related."[70]

89 His prognosis at that time was that the plaintiff -

"... has received suboptimal treatment to date, and if he continues to do so, his prognosis will be fairly poor. It is likely that appropriate treatment will improve his symptoms; however, he will almost certainly continue to suffer from significant pain and disability into the foreseeable future.

...

In my opinion, he is currently incapacitated both for his pre-injury duties, and for suitable duties. Taking into account his age, education, training, skills and work experience, as well as the nature and severity of his work-related lumbar spine condition, he is likely to remain totally incapacitated for employment into the foreseeable future."[71]

90 On the second occasion that he saw the plaintiff in January 2015, Professor Bittar noted that the current treatment comprised OxyContin, Tramadol and Valium, and he was taking those medications almost every day. He had occasional days when he did not take medications and did this deliberately to minimise the risk of dependence. However, the OxyContin dose had increased over the past twelve months.[72]

91 Examination on that occasion showed a markedly antalgic gait, with the range of lumbar flexion being severely restricted. Once again, there was "bilateral lumbar paravertebral muscle guarding" and "[t]here was some mild global right lower limb weakness that appeared pain-related. ... [I] did not form the view that there was abnormal illness behaviour".[73]

92 Once again, Professor Bittar recommended that the plaintiff participate in a multidisciplinary outpatient pain management program but that, in any event, he was currently incapacitated both for his pre-injury duties and for suitable duties, and was likely to remain totally incapacitated for employment into the foreseeable future, and that such incapacity was permanent.[74]

93 On 25 November 2013, Mr Charles Flanc, vascular and general surgeon, examined the plaintiff on behalf of his solicitors.[75] He also reported on 8 December 2014.

94 On the first occasion on examination, Mr Flanc noted the plaintiff walked without a limp but took short steps. He noticed that there was a one-centimetre decrease in circumference of the right lower leg compared to the left lower leg; however, he had a full range of dorsiflexion at each ankle and there was no weakness. He noted that ankle jerks and knee jerks were equal and brisk.[76]

95 It was Mr Flanc's impression that the plaintiff presented his history in a very straightforward manner and it was his opinion that the nature of his work with the defendant resulted in a gradual aggravation of a pre-existing degenerative condition of his lumbar spine "in the sense that it became symptomatic and remained symptomatic".[77]

"My impression was that he was a very genuine individual presenting with a serious back problem resulting from heavy work at this company. In my opinion, his current symptoms and disability is related to his physical condition.

Although he appeared anxious, it was my impression that he was not exaggerating his symptoms."[78]

"He presents a difficult problem of severe chronic back pain and he requires assessment by a specialist in rehabilitation and the management of chronic pain with a view to entering a multidisciplinary pain management program."[79]

"... a theoretical capacity for light sedentary, part-time work providing he would be able to get up and move around for relief of his symptoms as necessary.

However, I have noted that he has had a limited education and has always been involved in manual physical work with no experience in office activities or other types of lighter work.

It would be helpful to obtain a comprehensive vocational assessment regarding alternative types of light employment and his capacity for retraining. ... .[80]

99 At his second examination on 2 December 2014, Mr Flanc noticed that the plaintiff walked with a slight limp affecting the right leg.[81] The plaintiff stated that his symptoms had not improved since his last visit and that he was taking Tramadol, OxyContin, Mersyndol Forte, Endone and Valium. On examination, his lower back movement was severely restricted. He further stated:

"He had difficulty sitting up from the lying position with his legs straight in front of him but once sitting, he was able to flex to beyond 90o with his legs almost fully extended and his hands resting lightly on his knees."[82]

100 The ankle and knee jerks were still present, equal and brisk, and he found that the maximum circumference of each lower leg was 36 centimetres.[83]

"... the pain in his lower back is significantly related to the pre-existing degenerative condition of his lumbar spine especially at the L5 S1 level.

His symptoms are also being influenced by a significant chronic pain syndrome in which there is a sensitisation of pain pathways resulting in pain which is greater in severity and extent than that expected from the physical injury alone.

Notwithstanding this, it is my view that a significant component of his pain is the physical degenerative condition of the lumbar spine.

...

In my opinion, he has sustained an aggravation of the pre-existing degenerative condition of the lumbar spine in the sense that it became symptomatic and remained symptomatic. There was no acute episode but he was suffering from some pain in the lower back before the severe aggravation which occurred during 29 October 2012.

I consider that the nature of his work was a material contributing factor to this aggravation."[84]

"He would have a theoretical capacity for light, sedentary part-time duties providing he could get up and move around whenever necessary, but when one also takes into account his limited education and work experience which to a large extent has always involved physical work, it seems very unlikely that he would be able to find any light occupation which would be sustainable."[85]

103 At that stage, the prognosis for significant improvement was poor, and Mr Flanc considered that:

"... a significant component of his lower back pain is related to the physical injury to his lumbar spine."[86]

104 The plaintiff's solicitors then had the plaintiff examined by specialist occupational physician, Dr Joe Slesenger, on 13 January 2014.[87]

105 Interestingly, on taking a detailed history and under the heading "Alcohol", Dr Slesenger records:

"He drinks 6 units a day and occasionally drinks more. He describes himself as having a long standing alcohol problem.

He also uses marijuana to control his pain."[88]

106 Although Dr Slesenger recorded the plaintiff was taking OxyContin, Tramadol, Valium and Mersyndol Forte, he recorded the plaintiff was:

"... vague with regards to some aspects of his treatment, particularly his current medication."[89]

"... exacerbation of his low back and right leg pain as a result of an aggravation of his lumbar spinal degenerative disease."[90]

108 With respect to fitness for work, Dr Slesenger stated:

"Given his reliance on medication and the high levels of pain reported, I do not believe he is currently fit for alternate duties. However, this may change once he has appropriate treatment.

...

... His use of medication and other substances is of concern and a more rational approach to his medication is required. ... ."[91]

"From an employment perspective, whilst he has transferrable skills, these are focused within the construction industry and he has little experience outside this area. Given the safety critical nature of the work within this industry, it is unlikely that he will be able to attain or retain employment without a significant reduction in his use of prescribed medication an improvement in his function and a reduction in his pain level. He would also have to reduce his alcohol intake.

In addition, Mr Harris has become socially isolated. He is deconditioned and is now job detached. He has been out of employment for over a year and the chances of him returning to work in any capacity are slim."[92]

110 The fact that Dr Slesenger has a specific history of drug and alcohol ingestion supports the contention that the plaintiff has not been deliberately misleading medico-legal practitioners regarding this history but is more a function of his overall unreliability as an historian because of the ingestion of these substances.

111 The defendant then had the plaintiff re-examined by Dr Clive Kenna on 17 March 2014, being approximately twelve months since his last examination. He reported that the back pain was substantially similar but now the plaintiff had symptoms also slightly involving the left lower extremity. The plaintiff also believed the pain in the right leg had become worse.

"... an increase to 15 mg from 10 mg to qid from bd or tds. ... ."[93]

"The clinical examination findings were very similar to previously. He had a slightly altered gait and diminished function and mobility of the lumbar spine.

The main findings continued to be a very significantly diminished straight leg raise on the right with clear signs of dural tethering and ongoing wasting of the right calf.

...

Once again he presents with classic radicular signs and dural tethering involving the right S1 nerve root."[94]

115 Significantly, Dr Kenna reports the plaintiff was to see a pain specialist, Dr John Monagle, at Berwick, because:

"... it is considered now that he needs to return to a full pain management program and get away from any individual specific treatment; the aim being to decrease the level of his medications (and hopefully also decrease the level of alcohol intake)."[95]

116 It was Dr Kenna's opinion that the plaintiff required a full pain management program as the condition had become intransigent and therefore changes certainly needed to occur.[96]

"... the diagnosis has been one of discogenic pathology impacting the right L5-S1 nerve root, particularly the S1 nerve root, and the condition is ongoing and has certainly not resolved.

...

The condition continues to have a work-related component."[97]

118 Further, Dr Kenna thought the plaintiff was totally unfit for suitable employment due to -

"... significantly reduced activity tolerance limits and ongoing needs and level of medications".[98]

119 It is clear enough that at this stage, medical practitioners on both sides considered the plaintiff had a genuine physical discal injury to the lumbar spine, at least at the level of L5-S1, which was supported by objective signs and was work related. It is also clear that the overall consensus was that he was virtually totally incapacitated.

120 The defendant conducted video surveillance of the plaintiff on 9 and 13 March 2013.[99]

121 The first film purported to show activities of the plaintiff between 12:05 and 13:08 on 9 March 2014. At 12:37, he is shown to put some shopping in his car, and at 12:40, he is shown to be apparently walking briskly from an ANZ ATM to a fish and chip shop. Otherwise, the film to my mind was unremarkable.

122 The second film consists of basically three takes at 16:04, 16:09 and 16:46. At 16:46, the plaintiff appears to be limping when assisting a friend with an Esky and also lifts his massive dog to approximately waist height. The plaintiff estimated the dog's weight at about 25 kilograms at that time and claimed not to have lifted him completely off the ground.

123 Dr Kenna was then asked to comment on the surveillance material, which he did in a report dated 1 April 2014.[100] He was not shown the actual film but the investigator's report.

"As noted in that surveillance report he is observed to be getting in and out of the passenger seat briskly and being able to walk and bend. From that perspective, whilst he has been considered up until this date unfit to work, I would certainly still consider him unfit to work with regard to returning to operating diggers or earthmoving work on uneven ground due to jolting and potential exacerbation of his back condition. I am of the view that he is clearly at this point in time not totally unfit for work.

...

He would be fit for modified or alternative duties."[101]

"... His presentation at the time of my assessment would appear at odds with the observations as noted by the SECA group, particularly with regard to his general level of mobility."[102]

"Nevertheless it should be noted that I consider the claimant does have an ongoing back condition. It has been accepted it is work-related. His pain levels may fluctuate. He is unfit to return to pre-injury duties but this recent report from SECA indicates that he may by no means be totally incapacitated per se and may be able to demonstrate a capacity for work on alternative duties.

The one qualification of that at this point in time is the overall level of pain management and level of medication that may be required. In that respect I would be interested to review Dr Monagle's recommendations with regard to any pain management program."[103]

127 At this point, it should be noted that the WorkCover agent had instructed Dr Kenna as follows:

"Taking into consideration the surveillance report reveals Mr Harris getting in and out of the passenger seat briskly, walking briskly, bending forwards several times, taking a long stride up the kerb onto his right leg as well as bending down and picking up his large dog, do you still believe that Mr Harris is unfit for any duties from a physical point of view?"[104]

128 Given that Dr Kenna had not actually seen the film himself, I consider the instructions as being somewhat subjective as to the state of the film but, in any event, it has not led Dr Kenna to substantially change his mind, except with respect to the plaintiff may be able to demonstrate a capacity for work on alternative duties.

129 The defendant also provided the surveillance investigation report and the DVD disc to consultant orthopaedic surgeon, Mr Ronald Haig, who examined the plaintiff on 23 December 2014.[105] After taking a relatively consistent history, he noted, on physical examination, as follows:

"Examination of his lumbar spine showed his gait to be slow and markedly antalgic favouring the right side. ... All movements were much reduced. Straight leg raising was to 15o on the right and 45o on the left being limited by low back pain, but later in examination when seated with his hips flexed 90o his legs could be fully passively extended in front of him. The lower extremities were neurologically normal."[106]

130 As to the surveillance material, Mr Haig commented:

"... From the accompanying surveillance material I observed him at intervals walking briskly and certainly without any limp and moving quite freely and I do not see why he would not now be able to enjoy the recreational activities he enjoyed a couple of years ago."[107]

"... His work over the years has been that of a storeman, plant operator and labourer. These latter occupations are quite physical, a plant operator in the sense that he has been operating plant over rough ground and there is much vibration. It is recognised that such occupations do have a deleterious effect on the lumbar discs. I would suggest that his employment has been a contributory factor to his degenerative disc disease."[108]

"The short and long term prognosis is guarded for he has degenerative disc disease."[109]

133 As to the permanency of any incapacity, Mr Haig stated:

"It may be imprudent for him to return to his pre-injury employment for as stated, I do believe the types of employment over the years have been a contributing factor to his lumbar spondylosis. That statement holds for the foreseeable future. I believe he would be quite capable of other employment of a somewhat less physical nature. This would be such that he was not operating plant or working as a labourer.

I believe he does have a permanent incapacity for labouring jobs and as a plant operator.

...

I do believe he has the capacity to perform the duties described in the attached vocational assessment report."[110]

134 Finally, Mr Haig referred again to the surveillance material, where he observed the plaintiff to be -

"... moving quite freely and walking with a brisk gait and certainly without a limp. That would cast some doubt in my mind on the veracity of his claim symptoms and physical limitations."[111]

135 However, I do not read Mr Haig's report to mean other than that, on balance, the plaintiff has a genuine work-related discal injury which is permanent in its effects to the extent that he would be unable to return to employment of a physical nature.

136 For completeness, the defendant had the plaintiff assessed by consultant surgeon, Mr Michael Troy, on 5 December 2014, who in turn reported on 13 December 2014.[112]

137 Perhaps consistent with the other medical practitioners, Mr Troy diagnosed a degenerative lumbar disc at L5-S1 and associated facet joint arthropathy at that level. He thought the plaintiff could return to work on modified duties. In particular:

"... [b]ouncing around on an excavator or the like is not within his capacity as he would have a deterioration of his degenerative changes which already exist."[113]

138 Mr Troy also referred to a report dated 13 October 2014 indicating the plaintiff could be a despatch officer, warehouse clerk, purchasing and supply logistics clerk, dog trainer, animal attendant or safety officer. The plaintiff stated that "he can read well but he is not able to spell and therefore these jobs could possibly be suitable for him".[114]

139 Mr Troy also considered that other jobs such a traffic controller, car park attendant, ticket collector, meeter/greeter or a guard at a warehouse or in a factory scene or the like checking vehicles in and out may be suitable.[115]

140 Mr Troy, however, considers that the current condition did not relate to the date of the incident in 2012 -

"... as that is more than two years ago, it relates to the fact that he has those established changes there."[116]

141 In this regard, Mr Troy is "on his own" compared to the other medical practitioners. Also, it appears to be at odds with his opinion that -

"... bouncing around on an excavator or the like is not within his capacity as he would have a deterioration of his degenerative changes which already exist."[117]

142 This mechanism was significant in other practitioners considering that the disc disease was work related.

143 Accordingly, I find that the plaintiff has suffered a work-related permanent aggravation of a discal injury at L5-S1 which has had the consequence of rendering the plaintiff totally incapacitated for his previous work and capable of performing, at best, suitable light work for an uncertain number of hours.

The Plaintiff's evidence: pain and suffering consequences

144 Having found the compensable physical injury as cited above, including the objective physical signs elicited by various medical practitioners, I consider the following evidence of the plaintiff to be consistent with those findings.

145 The plaintiff was born in January 1969 and is forty-six years of age. He attended Swinburne Technical College up to Year 8 and left when he was fourteen years old. Thereafter, he worked in a number of physical manual jobs.

146 During the approximate seven years he worked with the defendant, the plaintiff worked as a full-time machine operator and would drive machinery over uneven ground involving a lot of vibrations and rocking. Approximately 40 per cent of his work was labouring duties. This involved heavy lifting and twisting and turning on uneven ground and manoeuvring weights such as pumps weighing up to 50 kilograms. He also worked eight hours a day from Monday to Friday, plus two hours of overtime every day and also six hours of overtime on Saturday.

147 Lower back pain slowly developed over a one-year period from about 2011 to 2012. He also started getting pain in the back of his right leg as far as the knee.

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