Serious injury application - physical injury to the lower ... · 3/2/2017 · suffered a "permanent serious impairment or loss of a body function". The loss ... second trip overseas

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IN THE COUNTY COURT OF VICTORIAAT MELBOURNECOMMON LAW DIVISIONS ERIOUS INJURY LIST

RAVINDRA PAUL

V

VICTORIAN WORKCOVER AUTHORITY

JUDGE

WHERE HELD

DATE OF HEARING

DATE OF JUDGMENT

CASE MAY BE CITED As

MEDIUM NEUTRAL CITATION

His HONOUR JUDGE CARMODY

Melbourne

17 February 20172 March 2017

Paul v Victorian WorkCover Authority

120171 VCC 146

REASONS FOR JUDGMENT

RevisedNot Restricted

Suitable for Publication

S u bjectCatchwords

Case No. C1-, 5-01627

Legislation CitedCases Cited

Judgment

ACCIDENT COMPENSATION

Serious injury application - physical injury to the lower backconsequences of the physical injury to the lower back - pain andsuffering only - whether the statutory definition has been satisfiedAccident Compensation Act 1985, SI34AB(f 6)(a)Banvon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622Leave refused in respect of the application to bring common-lawdamages for pain and suffering as a result of injury to the lower back

APPEARANCES

For the Plaintiff

For the Defendant

Plaintiff

Defendant

Counsel

Mr S Carson

Mr C OSullivan

COUNTY COURT OF VICTORIA250 William Street, Melbourne

Solicitors

Maurice Blackburn Pty Ltd

Thornson Geer

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HIS HONOUR:

This is an application by the plaintiff brought by way of Originating Motion dated

8 April2045. The plaintiff seeks leave pursuant to SI34AB(16)(b) of the

Accident Coinpensatibn Act 4985 ("the Act"). The plaintiff seeks leave to bring

proceedings to recover damages for an injury suffered by him arising out of, or

in the course of, his employment with the employer, Koex Pty Ltd ("the

employer"), on f 8 March 2009.

The plaintiff seeks leave to bring proceedings for pain and suffering damages

only in respect of a low~back injury he claims he suffered during the course of

his employment with the employer.

The evidence adduced in this hearing was:

. The plaintiff gave evidence and was cross~examined

. Exhibit PI, the Plaintiff's Court Book ("PCB"), pages 14-10i and pages

111-1.8

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. Exhibit Dl, the Defendant's Court Book ("DCB"), pages I-8.

The application is brought under the definition of "serious injury" contained in

SI 34AB(37)(a) of the Act which requires the plaintiff to prove that he has

suffered a "permanent serious impairment or loss of a body function". The loss

of body function in this case is to the plaintiff's lower back.

Mr O'SUI!ivan, on behalf of the defendant, identified the issues in this application

as follows:

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5

(i) The defendant accepts that the injury to the plaintiff's lower back was

coinpensable;

The defendant says the ongoing consequences of the initial injury to the

plaintiff are relatively minor and do not meet the statutory test. Mr

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(ii)

JUDGMENT


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O'SUIlivan described the case as a "range case"'

(Iii) The defendant relies on a non-organic component of the plaintiff's

presentation which has not been disentangled as required under the

legislation.

6 The plaintiff was cross-examined during the course of this application. Neither

the plaintiff's treating practitioners nor the medico-legal practitioners were

cross-examined in this application. The plaintiff relies upon the reports

tendered in the Plaintiff's Court Book.

The statutory scheme

7 The application is brought under the definition of "serious injury" contained in

SI 34AB(37)(a) of the Act which requires the plaintiff to prove that he has

suffered a "permanent serious impairment or loss of a body function".

8 The relevant considerations which apply to such an application are as follows:

(a) The plaintiff must prove that he has suffered a coinpensable injury; that

is, an injury which he suffered arising out of or in the course of, or due to

the nature of, his employment on or after 20 October 1999;I

,,

.

(b) The injury and the impairment must be permanent; that is, permanent in

the sense that it is "likely to last for the foreseeable future". 2

The plaintiff bears the burden of proof to be determined upon the balance

of Probabilities;

(c)

(d) Sub-section (38)(c) provides that the impairment must have

consequences in relation to pain and suffering and loss of earning

capacity which, when judged by comparison with other cases in the

range of possible impairments or losses of a body function, may fairly be

described as being more than "significant" or "marked" and as being at

2Section 134AB(, ), and Barwon S^hners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph tI tIBarwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph t331

VCc:As2 JUDGMENT


least "very considerable";

(e) Sub-section (38)(h) provides that the psychological or psychiatric

consequences of a physical injury are to be taken into account only for

the purpose of paragraph (c) of the definition of "serious injury" and not

otherwise;

co In conformity with Barwon Spyhners, I must identify the injury and the

impairment said to be produced in consequence of the injury; whether

the impairment is permanent; that is, likely to last for the foreseeable

future, and whether the consequences for the plaintiff are such as to

satisfy the lyery considerable" test contained in ss(38). I have applied

the principles set forth therein in reaching my conclusions in this

application,

9 I am required by the Act to give detailed reasons which are as extensive and

complete as the Court would give on the trial of an action and, in doing so, to

disclose my pathway of reasoning in dealing with the evidence and the issues

raised by the application.

The Plaintiff's background

10 The plaintiff was born in Fiji in 1964. He is now fifty-two years of age. The

plaintiff migrated to Australia in I 996.

II The plaintiff is a married inari and lives with his wife and daughter.

12 The plaintiff was educated in Fiji and completed training as a fitter and turner in

approximately 1983. ' He worked as a fitter and turner in Fiji prior to arriving in

Australia in I 996.

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13 The plaintiff was employed as a fitter and machinist with the employer between

April2008 and the date of his injury, I8 March 2009.

Subsequent to the plaintiff's injury and initial treatment, he has returned to work

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Transcript ("T") 10

3 JUDGMENT


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as a carer in September 2011. The plaintiff worked as a carer for an elderly

gentleman who suffered from dementia. 4 In the course of the carer

employment, the plaintiff travelled with his patient on two overseas trips in 2041

The first trip was to the Netherlands, the home country of the patient. The

second trip overseas was a cruise, commencing at Dubai and going to Greece. 5

15 In 2013, the plaintiff obtained employment as a delivery driver at a pharmacy in

Preston. 6 The plaintiff continues to work as a delivery driver for the pharmacy

which involves trips to various nursing homes and aged-care facilities for the

delivery of medications and Webster packs. The plaintiff's work involves a

morning shift and an afternoon shift. The plaintiff, in between those two shifts,

is able to return to his home where he plays music before returning to work.

16 The plaintiff is currently not attending any medical practitioner for pain or lower

back treatment. The plaintiff gave evidence that he takes approximately sixteen

Panadol OSteo tablets per week to manage his pain. The Panadol OSteo

medication is sourced by the plaintiff from excess medication at the aged-care

facilities. In the past, the plaintiff has taken Panadeine Forte tablets which were

initially prescribed by his general practitioner in 2009. He subsequently took

those Panadeine Forte tablets, which were sourced from excess medication at

the aged-care facilities, for a period of time, but he no longer takes that

medication.

The injury with the employer

17 The plaintiff commenced employment with the employer in April of 2008. His

role at that employment was that of a fitter and machinist. 7

t 8 The plaintiff described the circumstances of his injury to his back on t 8 March

2009 at paragraph 6 of his affidavit sworn 26 November 20.4 in the following

terms:

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7

T12

T13

PCB 13; Ti4PCB 42

VCc:As4 JUDGMENT


"On 18 March, 2009, I was working for the Defendant Iemployerl when Ihad to attach a device called a 'precision head' to a milling machine. Iestimate that the precision head weighed between approximately 40 - 60kilograms. There was no mechanical assistance on hand and nooverhead crane. Whilst trying to stand on a table and secure the precisionhead, it began to fall and I took the full weight of it, bending and twistingmy spine and suffering immediate pain and injury. "'

19 The defendant accepts that the injury to the plaintiff's lower back occurred in

circumstances and in the manner described by the plaintiff and there is no issue

between the parties on the causation of the injury to the plaintiff in March of

2009.

Medical treatment for the Plaintiff's lower back

20 On 18 March 2009, the plaintiff reported the incident to his supervisor and

lodged a WorkCover claim. He immediately ceased work and has not returned

to work with the employer. On the same day, the plaintiff attended his general

practitioner, Dr Zheng Warig. '

21 The only report from the plaintiff's general practitioner, Dr Warig, was dated I6

December 2009. " Dr Warig referred the plaintiff for a CT scan which was

performed on 23 March 2009. The CT scan is reported as follows:

"Conclusion

No significant lesion identified.

No evidence of disc herniation or canal stenosis. No evidence of nerve

root compromise.

Bilateral multilevel moderate facetjoint osteoarthritis. ""

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22 The plaintiff was then referred by his general practitioner to see the orthopaedic

surgeon, Mr Michael Khan. The plaintiff attended on Mr Khan on 24 June 2009

for initial examination. " Mr Khan referred the plaintiff for an MRI scan of his

lumbar spine. On 3 July 2009, the plaintiff underwent an MRI scan of his lumbar

spine. The MRI report appeared at page 63 of the PCB. Mr Khan reported on

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12

PCB 42

PCB 12

PCB 49 and 20

PCB 62

PCB 24

VCc:As5 JUDGMENT


the MRI scan as follows:

"The MRI scan of his lumbar spine performed at Dandenong Hospital dated3 July 2009 was reported by the Radiologist to show that he had discdesiccation with degenerative changes at L5/SI level, with a mildposterior disc bulge. There were degenerative changes affecting thefacet joints in [the] lower part of the back and minimal narrowing of thesubarucular recess bilateral Iy at L5/SI level, but no evidence of neuralcompression. There were minor degenerative changes present at L4/5and L3/41evels. "13

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Mr Khan has not examined the plaintiff since 12 August 2009.14

Mr Khan referred the plaintiff to Dr Clayton Thomas, the rehabilitation and pain

management physician.

On 6 October 2009, the plaintiff was examined by Dr Clayton Thomas. " After

reviewing the MRI report, Dr Thomas referred the plaintiff to the Victorian

Rehabilitation Centre.

24

25

26 The plaintiff attended at the Victorian Rehabilitation Centre between 2 March

2010 and 8 April20, o. 16

27 Dr Thomas reviewed the plaintiff after his attendance at the Victorian

Rehabilitation Centre on 27 May 2010. It appears from the documentation in

the PCB that that is the last time Dr Thomas examined the plaintiff.

In his report dated 25 May 2013, Dr Thomas reported as follows:

"I reviewed an MRI of his lumbar spine dated the 3rd July 2009 and thisshowed an isolated mildly dislocated degenerate L5/SI disc with no discprolapses and no neurological compromise. The discs above L5/SIlooked to be pristine.

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... The nature of the original injury certainly sounded significant howeverthe examination indicated a non organic component and the MRI was notoverly remarkable. There was certainly nothing that could date theimaging result on this specific incident of March 2009.

PCB 24 and 25

PCB 25

PCB 30

PCB 57

VCc:As6 JUDGMENT


He reported ongoing lower back pain. He enjoyed the rehabilitationprogram. We spoke about the fact that return to work as a fitter and turnerwould be difficult for him. We spoke about the fact that he had capacityto work in another field nonetheless. He was continuing to do theexercises shown [to] him through rehabilitation,

I think he does have work capacity from a physical sense. As I have notseen him for over three years, I am not able to give an indication of whathis current work capacity is.

For the same reason, I am not able to give an indication as to whether hiscondition has stabilised or not.

as per the body of my report it was not my opinion that he hadunrestricted physical capacity. I felt that he did have physical limitations,I felt that he would have difficulty performing the heavier physical choresworking as a fitter and turner unrestricted. "17

The plaintiff attended on a physiotherapist, Yasemin Arslan. The first

attendance on Ms Arslan was on I5 November 2010 and the last attendance

was on 17 January 201 I .

In her report dated 7 May 2043, Ms Arslan gave the following opinion:

"In my opinion the injury he sustained on the 18/03/2009 would havecaused injury to his lumbar spine but riot to the extent that he presentedwith and that there may be some inorganic component.

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30

I have not seen Ravindra since the 17/01/201i so I am not able tocomment on his current or future capacity to work as I am not aware ofhis current functional status.

During the period of time that I saw Ravindra there was no real change inhis symptoms and he reported that even Pain Management at Vic Rehabdid not help. ""

There is no evidence that the plaintiff has received any active physical or

medical treatment for his low-back injury since the beginning of January 204 f .

The plaintiff's evidence is that he takes Panadol OSteo, approximately sixteen

tablets per week. The purpose for taking this medication is to moderate his pain

levels.

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PCB 31

PCB 61

VCc:As7 JUDGMENT


Medical opinions

The Plaintiff's doctors

32 The medical reports relied upon by the plaintiff in respect of his treating medical

practitioners are dated. The most recent of them are over three years' old.

Dr Zheng Warig, General Practitioner

33 The plaintiff relied upon a report prepared by his general practitioner, Dr Zheng

Warig, dated 16 December 2009. At the time of writing his report in 2009, Dr

Warig stated the following:

"It is too early to predict what kind of level he could achieve during therehab. It is also difficult to clear[Iy] say jin is there OSI any permanentimpairment or not. IThel Patient's difficulties are he is unable to stand orsit [inI the same position Ifor] too long. His body is unable to bend forwardat certain angle[SI as it will creat[e] the back pain. Of course he is able tocarry some weight ie: 5-40 kg. But When shift[ing] the body with weight,the frequency and distance are in doubt. So, my suggestion is it is better[to] re assess the patient after the rehab program. ""

(SiC).

34 Dr Warig referred the plaintiff to Mr Khan, and from there the plaintiff came

under the care of Dr Clayton Thomas.

35 In the course of this proceeding, the plaintiff was cross-examined about his

most recent attendance on a general practitioner. The evidence was that the

plaintiff had attended upon Dr Shanmugam, general practitioner, on 8 July

2016. On that occasion, the plaintiff had complaints of a right shoulder injury

requiring an x"ray and other medical complaints including wheezing and reflux.

36 in respect of the plaintiff's lower back, the following evidence was given:

Q: "But you didn't talk to him about your back?~--

A No, because I didn't have to. It wasn't that bad as what. .-."20

.

37 The plaintiff then went on to give evidence about his view of what the doctors

would tell him concerning the taking of medication or having an operation.

There is no evidence before the Court that any medical practitioner has

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PCB 20

T27, L14-t 5

VCc:As8 JUDGMENT


suggested that the plaintiff have an operation in respect of his low back.

The only evidence from the plaintiff's general practitioner is the report of 2009.

The opinion expressed in that report is far too dated to be of any assistance to

the Court in assessing the level of seriousness of the back injury to the plaintiff

at this time.

Mr MIChael Khan, orthopaedic surgeon

Mr Kahn prepared a report dated 30 April20,3. In that report, Mr Khan stated

the last time he had examined the plaintiff was on 42 August 2009. Mr Khan's

opinion was as follows:

'As a result of this injury on or about 48 March 2009 or so, he sustained asevere musculo-skeletal and ligamentous injury to [the] lower part of theback with flare-up of pre-existing asymptomatic degenerative arthritis andspondylosis at L5/SI level. He has developed mild discogenic pain in thelower part of the back, with flare-up of degenerative facet jointarthropathy, which has resulted in referred pain down his legs and calves,the left side being more affected than the right,

He is totally unfit to perform his pre-injury duties.

This opinion was given at a time prior to the plaintiff attending on Dr Clayton

Thomas or attending at the Victorian Rehabilitation Centre.

Mr Khan's report is based on the examination as far back as 12 August 2009

and prior to the full rehabilitative services prescribed by Dr Clayton Thomas and

performed at the Victorian Rehabilitation Centre. For that reason, Mr Khan's

opinion is outdated for the purposes of the determination of this application.

Dr Clayton Thomas, specialist in rehabilitation and pain management

Dr Clayton Thomas prepared a report dated 25 May 2013 for the purposes of

this application. Dr Thomas had treated the plaintiff and referred him to the

Victorian Rehabilitation Centre for pain management. I have previously set out

Dr Thomas' findings and diagnosis in respect of the plaintiff. I note for

completeness that Dr Thomas has not seen the plaintiff since 27 May 2010.

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PCB 25

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Ms Yasemin Arslan, physiotherapist

Ms Arslan was the last person to provide active treatment for the plaintiff's low-

back condition. The last attendance was I7 January 201 I. I have previously

set out in full the opinion of Ms Arslan in these Reasons and will not repeat them

here. The fact that the plaintiff has not received any active physiotherapy

treatment since 201 I is an indicator that his ongoing difficulties and symptoms

are minor.

44

DrJoseph SIesenger, specialist occupational physician

Dr SIesenger prepared a report dated 13 October 2016 for medico-legal

purposes in respect of this application.

Dr SIesenger stated his diagnosis for the plaintiff's lower back as follows:

". Mechanical injury to the lumbar spine.

. Aggravation of degenerative disease of the lumbar spine.

. Chronic pain disorder. "22

Dr SIesenger's opinion was that the plaintiff had a capacity to return to work

with the following restrictions:

". No push, pull, carry or lift over 5 kg.

. No repetitive bending or twisting.

. Sit and stand as required.

. 4 hours a day, 5 days a week. "23

Dr SIesenger was guarded in terms of the plaintiff's prognosis and was of the

opinion that the plaintiff's symptoms would continue for the foreseeable future. 24

Mr Paul D'Urso, neurosurgeon

Mr D'Urso prepared two medico-legal reports, dated 5 December 2016 and 18

January 2007, in respect of this application.

Mr D'Urso's opinion was as follows:

J 45

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49

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PCB 70

PCB 71

PCB 72

VCc:As10 JUDGMENT

Paui v Victorian WorkCover Authority

"It would appear that Ravindra Paul has aggravated a pre-existingdegenerative condition of the lumbar spine. His injury would appear to beof a soft tissue nature. Ravindra has persisting disability as a result of hiscondition.

I would place restriction on Ravindra's capacity to perform heavy physicalwork. He should not be required to perform repetitive, bending, twistingor lifting activity. He should not be required to lift from below the knee orabove the shoulder or lift weight beyond 10kgs. Ravindra would requirethe ability to ambulate freely in the workplace. '25

Mr D'Urso concluded that the 30 hours 'of delivery driver work performed by the

plaintiff was suitable and that they constitute a light duty capacity. In his opinion,

Mr D'Urso thought the prognosis was satisfactory and stated that the workplace

injury in March of 2009 was an aggravating incident to an underlying

degenerative condition of his lumbar spine. 26

The second report from Mr D'Urso confirmed that he was of the opinion that the

work incident of I8 March 2009 led to the onset of symptoms for the plaintiff

and caused an inability of the plaintiff to perform his pre-injury employment 27

Mr MIChael Troy, general surgeon and occupational physician

The plaintiff relied on a report from Mr Michael Troy dated 5 August 2014 . This

report is really for the purposes of an impairment assessment under the Act.

A summary of Mr Troy's findings was that the plaintiff suffered from a

degenerative disc in the lumbar spine at L5-SI. The plaintiff continued to suffer

from that degenerative disc. Mr Troy's opinion was that the plaintiff's pain would

wax and wane over the future. Mr Troy accepted that the plaintiff's clinical

presentation was consistent with the workplace accident in March of 2009.28

Mr Troy's opinion as expressed in that report is also dated and is nevertheless

generally consistent with the other medical reportage in this case.

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PCB 75

PCB 76

PCB 100

PCBi14and115

VCc:As11 JUDGMENT


The Defendant's doctors

Dr Peter Boys, consultant orthopaedic surgeon

The defendant relied upon a report of Dr Boys dated 26 July 2016. Dr Boys'

report is for medico-legal purposes and is obviously not a treating doctor's

report.

Dr Boys' opinion is as follows:

"Mr Paul experiences central degenerative mechanical low back pain. Hiscondition is stable with well preserved functional capacities at this time.No deterioration of this gentleman's functional capacities would beanticipated in the light of the condition evident.

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This gentleman requires no other specialist examination. "29

In relation to the plaintiff's ongoing symptoms, Dr Boys stated:

"Mr Paul would appear to be experiencing symptoms associated withdegenerative change within the facet joints of the lower lumbar spine. Hedescribes a continuity of complaints subsequent to a soft tissue injury tothe lower back sustained on 48.03.2009. Investigations in the ensuingperiod have not shown evidence of discal protrusion or structuralderangement and this gentleman does not experience associatedradicular symptoms.

This gentleman's employment therefore has given rise to an aggravationof a pre-existing asymptomatic degenerative condition of the lumbosacraljunction with ongoing reported symptoms. "30

Mr Boys states that the plaintiff does not require any specific treatment other

than home exercise and the use of paracetamol-based medication. He stated

that the plaintiff had no specific restrictions in respect of his capacity, and noted

that the plaintiff continued to play the guitar recreational Iy. 31

The medical practitioners, both medico-legal and treating practitioners, do not

recommend any surgery for the plaintiff's back. The only treatment

recommended in an ongoing fashion is the use of paracetamol. Dr Boys

recommends home exercises. I note from the plaintiff's evidence that he is

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DCB 5

DCB 6

DCB 6

VCc:As12 JUDGMENT


doing home exercises to maintain his mobility and fitness.

The credit of the Plaintiff

60 I accept that the plaintiff reported the Injury to his low back in March of 2009

and attended upon his general practitioner, Dr Warig, that day. I accept that he

has not worked as a fitter and turner or mechanic since that day. The majority

of the medical opinions are that the plaintiff is unfit for his pre-injury work duties.

61 I accept that the plaintiff has properly reported to his medical practitioners,

particularly his treating practitioners, about his symptoms and incapacities. The

fact that the treating practitioners have not reported of recent times indicates

that the plaintiff has not been attending them for further treatment for his lower

back. In fact the plaintiff says that he no longer attends his medical practitioners

for symptoms and treatment in respect of his low back.

62 I have had the advantage of seeing the plaintiff give his evidence in the witness

box and would describe him as both honest and cheerful in the manner in which

he answered questions put to him by the defendant's counsel.

63 I note that in the report of the physiotherapist, Ms Arslan, that the plaintiff

exhibited some inorganic component in his presentation. " The plaintiff's

honesty is shown in this regard when he was answering a question about lawn

mowing. In that answer, he stated as follows:

"... When I can't do anything, that means my back is no good, That's theproblem I have and I tell you something, like even doing the lawn. Beforedoing the lawn my back starts paining. Just thinking of doing the thing.That's the thing I'm saying. I don't know Iifl it's psychological or what.That's the thing I'm saying and that's the hardest thing for me to do isdoing the lawn. After that, it's very painful. '83

64 This evidence is an example of both the honesty of the plaintiff and some level

of psychological or mental reaction to his symptoms. I do not find that the

plaintiff is consciously exaggerating his symptoms but that he admits that there

.... .

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33PCB 61

T, 6, L28 - Ti7, L4

VCC:As13 JUDGMENT


*

is some reticence or reluctance on his part to engage in full physical activity.

Another example of the plaintiff's honesty is when he stated that he had been

offered a job by his friend, Mohammed Mustapha, to perform casual fitting and

turning work, but that he decided not to do that work, because he was

concerned about his back pain. This is an example of where the plaintiff has

honestly answered the question but indicated that he had not tried to do that

work in the period of time after his rehabilitation at the Victorian Rehabilitation

Centre.

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66 In conclusion on the plaintiff's credit, I accept that he is giving a reasonably

honest appraisal of his condition.

Consequences of the low-back injury to the Plaintiff

67 The plaintiff relies upon two affidavits sworn on 26 November 2014 and 6

February 2017. He also relies upon affidavits in support from Mohammed

Mustapha sworn 16 February 2017, and his wife, F10rence Paul, sworn 15

February 2017. I note for completeness there are some inconsistencies

between his wife's affidavit and the plaintiff's own evidence in respect of his

abilities to undertake tasks on a day-to-day basis now. I also note that there is

an inconsistency between the plaintiff's history to doctors about the mowing of

lawns and that of Mr Must apha. I do not see these inconsistencies between the

plaintiff's wife and Mr Mustapha and the plaintiff himself, as any attack on the

plaintiff's credit, Rather, I accept the plaintiff's evidence about these matters

and set aside the conflicting part of the supporting affidavits.

Sleep

68 The plaintiff, in his second affidavit sworn 6 February 2017, states as follows:

"... At times my back pain interferes with my sleep. For some reason thepain seems worse in winter and I have more difficulty sleeping. "34

69 The above statement in the plaintiff's affidavit is the only reference or mention

of the consequence of interference to his sleep.

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PCB 16

14 JUDGMENT


70 I do not accept that the interference with the plaintiff's sleep is a significant

consequence for him.

Pain

In his first affidavit sworn 26 November 2014, the plaintiff stated that he had

ongoing constant fluctuating back pain. He described the pain as on occasion

being severe. He also said that he experience pain into his legs. 35

In his more recent affidavit sworn 6 February 2017, the plaintiff stated that his

pain levels fluctuated. He stated that his back never feels normal. He stated

that on a bad day, he would rate his strong pain as 7 out of I o. 36

In his evidence, the plaintiff stated that he had pain-free days when he was

performing his tasks as a delivery person for the pharmacy business. 37 A fair

reading of the plaintiff's evidence was that he was able to perform his work tasks

as a delivery driver for the pharmacy, attending upon nursing homes and aged-

care facilities with his deliveries, He also gave evidence in the hearing that he

was performing his music at home, either on his new Yamaha keyboard or his

guitar. The plaintiff is clearly someone who can continue to live a relatively

normal life including maintaining work and his love of music. This is all done

despite the level of pain he describes.

The Court is mindful that a stoic applicant who may be prepared to put up with

pain and make the best of the situation should not be treated less favourably

than some other applicant who may resign themselves to the injury. Whi!st I

accept the plaintiff displays some level of stoicism and practicality, I do not find

that he suffers from pain to his lower back to the extent that it is a significant

consequence for him,

Medication

The plaintiff's evidence is that he originally took Panadeine Forte and Ranadol

OSteo to relieve his pain symptoms. The current medication regime for the

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35

36

37

PCB 14

PCB 15 and 46

T30

VCc:As45 JUDGMENT


plaintiff is set out in his affidavit sworn 6 February 2047 as being sixteen

Panadol OSteo tablets a week. 38 Panadol OSteo is an over-the-counter

paracetamol-based medication. When asked directly about his frequency of

taking the Panadol OSteo, he responded :

"Nearly every day. ', 39

I find that the ingestion of a total of sixteen Panadol OSteo tablets per week is

at the very low end of medication required for pain amelioration and

consequently, is not a significant consequence for the plaintiff.

Ongoing treatment

The plaintiff does not have any ongoing treatment from medical practitioners or

physiotherapists. The plaintiff agreed that the last time he attended his general

practitioner for back symptoms was in 2015. He stated that he had a lot of pain

at that time and he went to the general practitioner and "did the scan". 40 I note

that there is no radiological report relating to his visit to the general practitioner

in or around 2045.

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I have previously referred. to his last visit to a general practitioner which was for

ailments and injuries not related to his back. " The main injury at that time

appears to have been a right shoulder injury which related to the plaintiff's guitar

playing.

Lack of mobility

The plaintiff is able to walk and run on his treadmill. '' The plaintiff gave

evidence that he could lift light weights as part of his training regime. The

plaintiff stated that he could drive for an hour or sit and stand for an hour to

ninety minutes. 43

I find that the plaintiff's described capacity for mobility is not indicative of a

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PCB 16

T20

T26

T27

T20

T, 8

VCc:As16 JUDGMENT


significant consequence for him due to inability to be mobile. I accept the

plaintiff has some restriction of bending and twisting but that restriction does not

amount to a significant consequence for the plaintiff.

Activities of daily living

The plaintiff, in his evidence, identified that the use of the Whipper Snipper is

his most challenging task in the garden, He identified that use as being the

biggest or most significant impairment on his ability to garden. 44

I note however in his history to Dr SIesenger that in relation to his activities of

daily living, the plaintiff stated as follows:

'SOCIAL & DOMESTIC HISTORY

Mr Paul lives with his wife and one child aged 18 in a single-storey housewith a garden. He advised that his wife and daughter perform the majorityof the domestic tasks including shopping, cooking, cleaning, laundry,vacuuming and mopping duties. He is able to do some light shopping.He advised that he can mow the lawn, but has difficulty using a whippersnipper. He advised that he is unable to make the beds, "45

81

,

.

82

83 I also note that in his history to Dr Boys, the plaintiff stated as follows:

"Effects of Activities of Daily Living

This gentleman lives with his wife and 18 year old daughter, Mr Paulrelates no restrictions on day to day activities at home. He prefers toavoid activities such as vacuum cleaning. He tends to sit down andperform gardening activities. Mr Paul is able to mow his lawn. He doesutilise a whipper snipper but finds this uncomfortable and does so for shortperiods. Mr Paul is unrestricted with driving a motor vehicle locally. "46

I find that the plaintiff has retained a significant capacity to perform the activities

of daily living and that the minor reduction in his ability to mow the lawn and or

use the Whipper Snipper do not constitute a significant consequence for him.

Sport and music

In his affidavit dated 26 November 2014, the plaintiff stated he had given up

soccer, fishing and the gym. " The plaintiff's evidence was that he still did

*

84

85

44

45

46

47

.

Tt9

PCB 67

DCB 4

PCB 14

VCc:As17 JUDGMENT


.

weights and exercises, as well as using the treadmill to walk and 109.48

86 In his evidence, the plaintiff stated he injured his left knee whilst playing indoor

soccer in Australia in 2004-2005. " In his affidavit dated 6 February 2017, the

plaintiff stated as follows:

"In approximately January 2005, I hurt my left knee playing soccer. Isaw a surgeon in Granbourne and had keyhole surgery and made whatI considered to be a good recovery. I got back to playing soccer. I amnot sure at my age now whether I would still be playing competitionsoccer, but I enjoyed keeping active and having a kick. Because of myback injury, I have not been as active at home and I have not been ableto continue soccer at any level and I have not been able to be as activewith my daughter as I would like". 50

,

87 The plaintiff clearly acknowledges his days of playing soccer in competitions

are over but relates it to his age rather than the injury to his low back. I do not

find that the cessation of soccer is a significant consequence to the plaintiff

based on the evidence in this hearing.

88 The plaintiff is a genuine music enthusiast, He gave evidence of injuring his

right shoulder as a result of playing ACIDC music on his guitar, The affidavits

set out how the plaintiff is precluded from taking part in the church band. The

plaintiff gave evidence that he has recently purchased a new Yamaha keyboard

to play his music at home. On occasions, friends come to his home and play

music:

89 In re-examination, the plaintiff was asked about the limitations on him playing

music. His evidence was:

"When you say you take a rest, are you resting the back, or are youjust resting because you're tired, or what's the rest for when youplay music?---

No, it's just the back because you can't be sitting down there thatlong. Sometimes it's, like, you lose interest and then you go out andit's not the back. Sometimes it is back.

Q:

48

49

50

51

A:

T20

Tit

PCB t8

T22

VCc:As48 JUDGMENT


.

Q:

A:

Q:

Sorry, sometimes it is the back---

Yes.

How often is that the case, that it's the back that makes you stopplaying?---

Not really too much.

Now, the playing, I think you said 99.9 per cent - and I appreciatethat's just making a point ~ but the playing on your own, what's yourenjoyment like playing on your own compared to what it was likeplaying with others in the band and practising with those others?---

You see when you play with Ithej band you learn lot, you learn fromother people and your music gets more precise. Playing on yourown is not same thing as playing with the band.

All right. So if you can answer this then - please try. Do you enjoyit as much playing on your own, or not?---

Not really.

Not really?---

Yes. '152

A:

Q:

I

A:

Q:

A:

Q:

A:

90 The plaintiff, when giving evidence about his current involvement in playing

music, was truly engaged, enthusiastic and "lit up" with his involvement in

music. I find that the plaintiff draws great enjoyment and pleasure from his

playing of music and that any limit on his ability to continue with the church band

is not a significant consequence for him.

Work

The plaintiff claimed that he was unable to return to his pre~injury employment

as a fitter and turner and machinist. The general medical opinions are that the

plaintiff can no longer perform his pre-injury duties of being a fitter and turner.

Nevertheless, the plaintiff had been offered employment as a casual fitter and

turner by his friend, Mr Mustapha. The plaintiff decided that he would not take

up that opportunity and instead, rely upon his existing employment of a delivery

driver for a pharmacy. That was a reasonable decision for the plaintiff to make.

However, it does leave urianswered the question of whether or not the plaintiff

could in fact have been able to resume his usual employment as a fitter and

.

91

52

VCc:As

T32"33

19 JUDGMENT


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turner or machinist.

92 Mr Carson, on behalf of the plaintiff, urged the Court to take into account that

the loss of the plaintiff's normal and usual trade of being a fitter and turner is a

very significant consequence for the plaintiff. I have had the advantage of

seeing the plaintiff give evidence in this case and it is my finding that the plaintiff

enjoys his current employment as a delivery driver, combined with its capacity

to give him more time and access to perform or practice his music. It was clear

from the plaintiff's evidence that music was his first love and passion and the

fact that he can now, with his split shift employment as a delivery driver, engage

in pursuing his musical interests, that he prefers that work. I do not accept that

the plaintiff has been so affected by the loss of his previous employment as a

fitter and turner as being a significant consequence for him,

,

.

93 The defendant relied upon the issue of the non-organic presentation by the

plaintiff in respect of his description of pain symptoms, In particular, the

defendant relied upon a statement made in Dr Thomas' report '' and the report

of the physiotherapist. " The defendant relies on the evidence given by the

plaintiff himself in respect of his anticipation of back pain before he mows the

lawn. 55 I do not accept that the plaintiff is consciously exaggerating his

symptoms. I accept the plaintiff's complaints at face value and do not accept

that, as a combination or individually, the consequences of the low-back injury

to him amount to the statutory test.

Conclusion

94 After a consideration of all of the evidence and taking into account all the

consequences suffered by the plaintiff as a result of his low-back injury, I am

not satisfied that such consequences, when judged by a comparison with other

cases in the range of possible impairments, can be fairly described as being

"more than significant or marked and as being at least very considerable". The

53

54

55

PCB 31

PCB 61

Tt6

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*

,

plaintiff has not satisfied the statutory test for "serious injury" for pain and

suffering damages.

I dismiss the application.

I will hear the parties on costs.

95

96

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VCc:As21 JUDGMENT


Serious injury application - physical injury to the lower ... · 3/2/2017 · suffered a "permanent serious impairment or loss of a body function". The loss ... second trip overseas

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