Harris v Knight [2005] ACTSC 32

Harris v Knight [2005] ACTSC 32 - ACTSC 2005 case summary — Zoe

[23]

`This man stated that he has continued to work with periodic time off due to aggravation of pain.

He was doing essentially office work most of the time, standing up and walking around, supervising the loading bay and occasionally lifting.

He has a limit of 15 kilograms but usually avoided such lifting.

He described the pain as being constant but aggravated by bending and twisting.

He stated that he has background pain on the visual analogue scale of 4/10, increasing once a week after twisting or bending to 8-9/10. In this scale 0 is no pain and 10 is the worst pain experienced.

At home he can do most things but does them very slowly and has to avoid lifting heavy objects.

He takes occasionally Nurofen as analgesic and this is usually once a week.

He also reported having suffered an injury to his back in 1998 when he lifted a 20 litre drum of liquid and had pain for two days in the back. There had been no further symptoms following that until the injury of May 2001.

EXAMINATION:

On examination, I found weakness of plantar flexion of the left ankle but intact reflexes and sensation in the lower limbs.

Straight leg raising was 80 degrees on the left and 90 on the right.

Lumbar flexion was restricted to 50% of normal range by pain and extension to 75%. There was no tenderness over the lumbar spine.

The MRI Scan that he had of 2/4/04 showed a moderate sized left posterior paracentral L5/S1 disc protrusion compressing the S1 nerve root. The canal was still quite wide. There had been no change from the findings of the scan of July 2001.

The issue of further treatment was discussed.

Mr Harris was happy to carry on with his current regime of periodic analgesics and regular exercises.

He was not keen on any surgical intervention of disc excision unless the symptoms became severe.

OPINION:

Mr Harris stated that he developed symptoms of left sciatica following a car accident on 12/5/2001.

The symptoms have continued and the disc protrusion seen in 2001 on CAT Scan remains unchanged on the recent scan of April, 2004.

Because he has a fairly capacious spinal canal, he has not suffered major symptoms of disability from this protrusion.

However, the protrusion seems to be periodically getting aggravated with activities, causing transient increase in pain and disability.

Mr Harris is happy to continue in this fashion and therefore surgical treatment is not indicated.

It is unlikely that he will have any major deterioration of his symptoms unless further injuries occur.

It is therefore seen that he will continue in this fashion with restriction of activities but working full time and taking care.

Spontaneous deterioration with aggravation of pain therein cannot be ruled out and should that happen then surgical treatment may be considered.

If that were to occur he would require 5 days in hospital and 6 - 8 weeks off work. The chances of relieving his leg symptoms would be 85% by such a procedure.'

[27]

`Having regard to the fact that the situation is stable structurally, albeit with an ongoing unsatisfactory level of symptoms as described in the prior reports, it is extremely likely that he will remain symptomatic for an indefinite period - he has already done so for some four years: thus early and anything like complete remission must now be considered an unrealistic expectation. If he is unwilling to tolerate these symptoms on a long-term basis, which appears to be an entirely reasonable attitude for him to take, he should seek the opinion of an experienced spinal neurosurgeon. I should be happy to suggest appropriate practitioners should you require this.

It is my opinion that he should not be content with a limited partial discectomy, which may well relieve his sciatica to a significant extent, but will almost certainly not relieve his back pain - the success rate of such surgery is less than one in two. Having regard to the risks of the surgery itself, the risk of perineural fibrosis or arachnoiditis as the most pernicious and serious long-term complications, a simple partial discectomy which is relatively easy surgery for an experienced spinal surgeon is, in my view, an inadequate approach to the problem - because the major part of the disc is left in situ_, there is a 5 to 10% chance of recurrent prolapse (which I have observed on a number of occasions as occurring even before the patient has left hospital) and a very high chance of persisting back pain, which is a major feature of your client's symptoms. Accordingly, though technically more difficult, I am of the opinion that a posterior interbody fusion and total discectomy is by far the preferred procedure, definitively dealing with both the disc and with the sciatic element._

The fact that his left S1 nerve root has now been compressed for a protracted period of some years renders it likely that he is suffering from post-traumatic interstitial fibrosis likely, which is untreatable as such scarring within the substance of the nerve root cannot be relieved or removed. This may produce continued dysfunction of the nerve root, though the extent and nature of such dysfunction cannot be predicted with confidence.'

[29]

`His major concerns are low back pain. He said that the pain is more prominent on his left side and can be associated with some radiation into his left leg with some paraesthesia and numbness. He said that when he retires of an evening, he said that it feels as if his leg "can go to sleep."

The pain in his low back is constant and is exacerbated by any bending or lifting.

His neck pain is intermittent. It is not as severe as his back pain and it is located in his lower cervical region around C7, with radiation into both shoulders. He said that in the past week it has increased in severity and he has taken some non-steroidal anti-inflammatory medications.

Precipitating movements for his pain are sudden neck movements.

Specific aggravating facts for his low back pain are bending, lifting and lying. Walking tends to relief [sic] his pain. Standing for too long is an aggravator. Sitting is not a significant aggravator.

Present Work Status:

He is currently participating in his full-time employment on a restricted basis.

Present Activities:

When questioned, he advised that he is able to drive. He cannot cook or mop the floor. He can wash clothes, although he encounters difficulty in hanging them out. Ironing is a chore he can accomplish as is shopping.

He does not attend to any gardening or lawn mowing activities and when questioned, he advised that he has not attempted these activities since his injury.

Mr Harris explained that his girlfriend attends to the majority of the chores.

He said that he can achieve most activities around his home. However, several activities such as vacuuming and washing the floor produce significant difficulties.

When questioned with regard to his typical daily activities, he advised that he has not been able to participate in his pre-injury sport which was target shooting. He undertakes his exercises at home. He walks occasionally. He said that when attending the cinema, he experiences pain due to the prolonged sitting. Otherwise, he said with regard to his usual activities, he does not do a great deal. He may attend the pub on occasions.'

[36]

26. The plaintiff claims a further sum for past wages lost based on the contention that, but for the accident, he would have continued to work, and be paid for, overtime with the same frequency as he had achieved before the accident. In his oral evidence, the plaintiff was inclined to estimate his pre-accident rate of overtime at an average of four hours a week. However, Mr McDonogh of Counsel for the defendant has demonstrated by an analysis of the plaintiff's wage records over the calendar year before the accident that his total earnings for overtime for that year, variously calculated at time and a half and double time, was $2,503.88 at an average rate of $48.15 a week. There was evidence that the plaintiff has recently been receiving a higher duties allowance for acting as a foreman or supervisor. The temporary vacancy in that position is to be filled for eight months by a continuing appointment to be made in June 2005. The plaintiff appears to have reasonable prospects of securing that appointment but, if successful, will occupy the higher position for only eight months after which he will revert to his present substantive classification of foreman. Moreover, his present manager, Mr Arthur, gave evidence that, of eleven employees in the plaintiff's section of the workforce at the Joint Houses of Parliament, only three are in substantive managerial positions and that he, Arthur, has achieved only two promotions in his 17 years of employment in the section. In any event, there is nothing to suggest that appointment to one of the substantive supervisory positions to which the plaintiff aspires would normally preclude the appointee from being rostered and receiving remuneration for overtime. Those benefits are denied to the plaintiff because of his inability to perform the full range of duties, including physical work, expected of the smaller group of employees working overtime at any one time. I therefore consider it appropriate to award the plaintiff a component of damages for lost overtime from 2 May 2001 to the present at a rate of $48.00 a week. The same rate of loss can reasonably be assumed to continue into the future until the plaintiff retires at age 65.

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Judgment (45 paragraphs)

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Cases Cited (3)