* IN THE COUNTY COURT OF VICTORIA Revised AT WARRNAMBOOL Not Restricted COMMON LAW DIVISION Suitable for Publication SERIOUS INJURY LIST Case No. C1-17-00528
DAVID SHANE PAULKE Plaintiff
V
SIMPSON PERSONNEL PTY LTD Defendant
JUDGE HER HONOUR JUDGE K L BOURKE WHERE HELD Warmambool
DATE OF HEARING 28 and 29 November 2017
DATE OF JUDGMENT 21 December 2017 CASE MAY BE CITED As Paulke v Simpson Personnel Pty Ltd MEDIUM NEUTRAL CITATION 120.7jVCC 1957
REASONS FOR JUDGMENT
Subject ACCIDENT COMPENSATION Catchwords Serious injury - impairment to the spine - pain and suffering - loss of earning capacity Legislation Cited Accident Compensation Act I 985, SI34AB(, 6)(b), (37) and (38) Cases Cited Barwon Spinners Ply Ltd & Ors v Podo/ak (2005) 14 VR 622; Grech v Onca AUStrafia Pty Ltd & An or (2006) 14 VR 602; Arisett Australia Ltd v Taylor 120061 VsCA I 71 ; Sednaoui v Am ac Corrosion Protection Pty Ltd [2017] VsCA 66; Transport Accident Commission v Zepic t20131 VsCA 232; Meadows vLibhmore PtyLtd [2013] VsCA 201; Petkovskiv Gaffetti [1994] I VR 436 ; A G Staff Pty Ltd v Finpowicz; Am old Ribbon Co Pty Ltd v Filly?owlcz (2002) 34 VR 309; Haden Engineering Pty Ltd v MCKinnon (201 0) 34 VR I ; Kelso v Tati^ra Meat Co Pty Ltd (2007) , 7 VR 592; ACir v Frosster Pty Ltd [2009] VsC 454; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdul/e [2009] VsCA I 70 Judgment Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
APPEARANCES Counsel Solicitors
For the Plaintiff Mr I Fehring with Stringer Clark Mr G Pierorazio
For the Defendant Mr W R Middleton QC with Thornson Geer Ms D Manova
COUNTY COURT OF VICTORIA 250 William Street, Melbourne ,
HER HONOUR:
This is an application for leave to bring proceedings for damages pursuant to SI34AB(46)(b) of the Accident Compensation Act I 985 ("the Act") for injury suffered by the plaintiff in the course of his employment with the defendant on 2 February 2012 ("the said date"),
2 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 SI 34AB(37) and (38).
3 The plaintiff brings this application PUTSuant to clause (a) of the definition of "serious injury' to be found in SI34AB(37) of the Act. There, "serious injury" is defined relevantly as meaning:
"(a) permanent serious impairment or loss of a body function.
4 The body function relied upon in this application is the spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of SI34AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By SI34AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
JUDGMENT VCc:LM/DC1As/LW/SNAs/LM/As Paulke v SImpson Personnel Pty Ltd .
.9 I am required to consider the consequences to this particular plaintiff, viewed objective Iy, arising from the injury. Comparison must also be made of the
impairment arising from the injury in this particular application with other cases
in the range of possible impairments or losses of body function, mental or
behavioural disturbances or disorders. -
10 In this application 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.
11 Subsections (38)(e) and co recite the formula by which loss of earning capacity
is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established,
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Bam/on Spyhners Pty Ltd & Ors v Podolak' and Grech v Onca Australia Pty Ltd & An o12 in reaching my conclusions,
45 The plaintiff relied upon two affidavits and 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,
The Plaintiff's evidence
re The plaintiff is presently aged sixty-three, having been born in Holland in April 1954. He lives with his partner Christ ine Dobson in Portland.
I7 Having completed Year 9, the plaintiff was employed in farm labouring activities
for five or six years' He then worked on fishing boats around Australia. He did
(2005) 14 VR 622 2 (2006) 14 VR 602
2 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd ,
mining jobs, including work in Western Australia and the Northern Territory for a number of years,
18 The plaintiff had suffered from depression in the past and was on a Disability Support Pension for a number of years, He believed he was on the pension in 2009-204 0 for between a year and eighteen months. He was then under the care of Dr Maher's in Ballarat, 3
19 The plaintiff had right knee surgery performed by Mr Mitchell in 2009, having hurt his knee while at work at PFD Food Distributors. That injury settled down after surgery, and the plaintiff was able to return to his job as a delivery driver.
20 The plaintiff believed that whilst at Dr Maher's clinic, he also had treatment for his neck, middle back, thoracic spine and also lower back. 4
24 The plaintiff mentioned nothing about any previous back problems, or about any treatment for his neck or middle lower back in his first affidavit as he always
went back to work. He did not really know why he did not mention prior problems with his spine "he just went through what he had to do". 5
22 The plaintiff also made no mention of these issues in his second affidavit as he did not believe it was 'pertinent' to this application. He would have told doctors about it, having told Mr Gardiner. 6
23 The plaintiff confirmed he told Mr Gardiner on examination in 2016 of a back problem at Laininex ten years earlier, following which he thought his problem resolved after about a month. He went straight back to work, He had not had regular problems since, only three or four times. 7
24 The plaintiff did not know he had to mention pre~incident back pain in his affidavits. He denied he was deliberately concealing these matters from this
3 Transcript ("T") 9 4 T, O 5 T, O 6 T, O 7 Tli
3 JUDGMENT VCc:LM/DC1AS/LW/SNAS/LM/As Paulke v SImpson Personnel Pty Ltd . application. ' He did not know he was meant to supply his whole medical history or any medical history. ' He did not know why he mentioned his right knee in
his affidavit. ID
25 The plaintiff agreed he had made a right knee claim and a claim in relation to
his thumb in 2002. He denied it was a fabrication when he said to Mr Gardiner
that he was completely ignorant of his WorkCover situation. He denied he knew
a lot about WorkCover. "
26 The plaintiff was asked about his September 2000 claim form for an injury the previous month. " He confirmed he answered "No" to the question whether he had had any pain or disability in the area of his present injury/condition because he had not had any previous pain or disability with this employer. t3
27 The plaintiff was then asked about his 2002 claim form relating to a lifting strain to his lower back in November that year. This time he answered "Yes" to the
same question and added "around two and a half years ago whilst working for Laininex". The plaintiff did not know why this time he gave this answer ~ "probably because it was close to the other injury". 14
28 The plaintiff was then asked about an incident in December 2009, where he had
serious pain in his upper back, twisting, lifting and restacking boxes. in the
incident report he wrote "back" not ticking the "low back" box. He was again off work as a result of this lifting and twisting incident. 15
8 T82 9 T84 aO T85 it Ti5 12 T, 5 13 T, 6 14 T, 7 15 Tt8
4 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v SImpson Personnel Pty Ltd 29 In the Claim Form relating to the 2009 incident, the plaintiff described thoracic sprain in upper back. He ticked "No" to any previous problem. He did not know why he did so because he obviously had had that pain before. ,6
* 30 The plaintiff was then asked about a number of attendances on his general practitioners before the incident.
31 The plaintiff confirmed he saw Dr Halliburton's as was noted in October 2002, complaining of cervical spine pain and headache and on 5 November 2002, when it was noted hurt back, pain down left leg.
32 The plaintiff explained that the note "past history of low back pain nearly to operation" on 5 November 2002 referred to the advice given to him by the physiotherapist whilst he was at Laininex. 17
33 The plaintiff agreed back pain in the past had caused him to get medical attention, take days off work, have medication, and have investigations. He thought pain at that stage was at the lower level of his back. He agreed that he was having muscle spasms in his low back in December 2002 as Dr Halliburton noted. 18
34 The plaintiff did not attend the doctor about his back during 2004. In April2005, he agreed he was taking Tegretol for seizures which are no longer a problem. "
35 On the 22 April2005 visit, there was also a complaint of left sided upper back, neck and chest pain aggravated by attacks and a note the plaintiff took some of his father's OxyNorm. The plaintiff could not recall how thoracic spine problems came on at that time but he agreed he then took some of his father's OxyNorm that really helped. 20
a6 Tt9 17 T35; Claim 31 August 2000 18 T34 19 T37 20 T36
5 JUDGMENT VCc:LM/DC1AS/Lw/SNAs/LM/As Paulke v SImpson Personnel Pty Ltd . 36 These attendances were just before the plaintiff went to prison. He was jailed in 2005 for twenty months. 21
37 The plaintiff demonstrated the site of his current pain whilst in the witness box. 22 The pain is in his middle back below his shoulder blades, to his belt line but not
often. He did not know if the pain was in the same area in 2005.23
38 The plaintiff first attended Eureka Medical Clinic ("Eureka") on 8 March 2007. He could not remember attending Eureka on 24 November 2007 when it was noted he was complaining of nagging pain in the right back, and it was reported there was low back pain with heavy lifting, and Nurofen was prescribed. 24
39 On 30 November 2007, when Dr Maher recorded a complaint of inid-thoracic pain, the plaintiff was working at MCCain's on call. He was doing labouring type work. He then weighed I 13 kilograms, and was prescribed Mobic. The pain now is a lot worse than the pain at that stage. The pain then was in a similar area to his present pain. 25
40 The plaintiff did not know for how long this pain continued to be a problem in November 2007 but not long he thought. He did not know for how long he took Mobic at that time. 26
41 The plaintiff could recall an attendance on 4 December 2008 when he
complained of pain between his shoulder blades doing heavy lifting as a truck driver. The pain was in a similar area to his current pain. 27
2, T28 22 T38 23 T39 24 T49 25 T37 26 T39 27 T50
6 JUDGMENT VCc:LM/DC1AS/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd ,
42 The plaintiff confirmed an entry on I I December 2009 which set out complaints of thoracic pain after lifting packs in the back of a truck. He was prescribed Panadeine Forte and a CT scan was organised. 28
43 The plaintiff was asked about the clinical details on the CT report of the thoracolumbar spine in May 2014 - "inappropriate!y twisted back in 2009, since then ongoing back problems". He disagreed he had ongoing problems with his thoracic spine as a result of the December 2009 incident, as he had become better, because he went back to work. 29
44 The plaintiff could remember having an x-ray of his cervical and thoracic spine on If December 2009.30
45 The plaintiff thought he had only had a week or two off work after the 2009 incident, but agreed with the certificates which detailed he was fit for normal duties on I March 2010.31
46 The plaintiff agreed that in the following months, he continued to see Dr Maher in the main in relation to problems connected with his psychiatric/mental state. 32
47 The plaintiff was asked about a letter to Dr Maher from psychiatrist, Dr Ghai, in August 2010, which mentioned an overdose of Mersyndol and Panadol tablets around that time. The plaintiff started taking those drugs for pain, and then it turned into an addiction. They were for a different pain in his neck and into his head, and may have been for his back. He had had back pain a lot throughout his life. 33
48 Whilst the plaintiff stressed this medication in 2004/5 was for his head and neck, he was sure he took it for his back - fit was an addiction ,.. for the Codeine". 34
28 T5t 29 T5, 30 T54 31 T55 32 T42 33 T47 34 T49
7 JUDGMENT VCc:LM/DC1AS/LW/SNAS/LM/As Paulke v Simpson Personnel Ply Ltd Work with the Defendant
49 In 201 I, the plaintiff obtained employment with the defendant labour hire company. He initially worked in a meat works for about nine months. In January 2012, he was offered work through the defendant at the Northern Grainpians Shire Council as a driver and gardener for a three month term. He was paid $25 an hour,
50 On the said date, two or three weeks after starting with the. defendant, whilst unloading equipment from a work truck, a side of the truck came away from the vehicle and fell off its hinges. The plaintiff reacted on reflex and tried to stop it falling. When its weight came onto his left arm, it forced him to twist to the left
and he felt a sharp pain in his thoracic spine ("the incident").
51 The plaintiff rested for a short period. He did some further duties but was unable
to complete his day's work because of his back pain. He reported the incident
to his boss and went to Dr Obj at Stawell Medical Clinic that day. Dr Obj then put him off work.
52 The plaintiff made a claim for compensation, which was accepted. On that form,
he stated he had a thoracic back injury. In cross-examination, when asked
whether it was definitely his middle back that he injured, the plaintiff said "more so". The pain went from the middle of his back down. 35
53 In that Claim Form, the plaintiff answered "No" to previous injuries, as he had not had an injury with this employer. That is what he thought the question meant. 36
54 The plaintiff agreed he had told Dr Obj of a back strain, without sciatica initially, which later came on. Dr Obj arranged an MRI scan of his lumbar spine on 8
March 2012.
35 T12 36 T, 3
8 VCc:LM/DC1As/Lw/SNAs/LM/As JUDGMENT Paulke v Simpson Personnel Pty Ltd 55 The plaintiff denied complaining to Dr Obj of lower back, not middle back pain, He guessed Dr Obj organised that MRI because that was what Dr Obj wanted to do. 37
56 At that stage, the plaintiff was living in Ararat and working in Stawell. He could not say whether he went to a physiotherapist then. 38
57 The plaintiff could not remember seeing Dr Obj on 6 and I7 February, I March, 5 April or 20 April 2012. He could recall being prescribed Gelebrex and OxyContin and taking it in February 2012.
58 However, the p!aintiff chose not to continue taking the OxyContin Dr Obj prescribed because he did not want to get hooked on it, as he had had problems with addiction in the past. 39
59 The plaintiff thought Dr Obj's comment on 21 March 2012 that he presented for a WorkCover certificate and was "clearly becoming a difficult character asking for CT of upper back now when issue was originally in lower back" sounded correct. The plaintiff denied that he was "fully functional" within two months of the incident injury, with just a little bit of discomfort as Dr Obj reported. 40
60 The plaintiff was shown Dr Obj's last certificate in April2012 in which Dr Obj described the injury as acute low back ache. The plaintiff's pain however was then higher up in his back, but his low back was also sore. He denied he was complaining mostly about his lower back as he had asked for an upper back investigation. He was always talking about the higher part of his back. That was why he then had an argument with Dr Obj. 41
61 The plaintiff denied that he had "signed off' on Dr Obj's certificate which provided he was fit for normal duties on 23 April20,2. He just signed the
37 T20 38 T2i 39 T44 40 T23 41 T24
9 JUDGMENT VCC:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd certificate so he could get paid, and he did not read it. if he had known Dr Obi
had certified him fit, the plaintiff would have challenged that view. 42
62 In re-examination, the plaintiff confirmed a disagreement with Dr Obj, who just wanted to look at his lower back and give him medication, The plaintiff thought his back was "buggered" when he last saw Dr Obj in April 2012.43
63 Whilst the plaintiff was seeing Dr Obj after he was injured, when he got to the point he was told it was better to go onto benefits, he went back to Dr Maher in Ballarat. 44 He had been treating the plaintiff for depression. He preferred to see Dr Maher as his family doctor instead of travelling to Stowell to see Dr Obj. 45
64 The plaintiff believed he was paid WorkCover roughly from the date of the incident until20 April2012 and then he went on Newstart. 46
65 The plaintiff was told by the defendant that probably thirteen weeks after the incident, his rate of pay would be diminished. He was told he would be better
off going onto unemployment benefits, as he would get more money, because eventually WorkCover reduced down to about 25 per cent. Having received this advice, the plaintiff went back to Dr Maher. 47
66 The plaintiff confirmed he told Mr Gardiner he went on Centrelink because he had been told he would only be paid a small proportion of his wages on WorkCover. He also confirmed he admitted to being completely ignorant of the WorkCover situation, so he went to Centre!ink. " He denied that he would have had union assistance during that time. 49
67 The plaintiff agreed he saw Dr Maher on 40 May 2042. A note of that
attendance - "has fallen into a hole again, four jobs in the last few months, hit
42 T27 43 T88 44 T30 45 T44 46 T62 47 T93 48 T13 49 T33
10 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd one of the bosses over a minor verbal altercation ,",, was not
contemporaneous. This happened before the incident when the plaintiff was helping out a mate on a farm. 50
68 The plaintiff "guessed" that he did not see Dr Maher again in relation to his thoracic spine, with the last entry at that clinic on I I January 201 3.5' This was the case because he felt depression was more concerning at the time. It was both depression and his back that was keeping him out of work. He did not mention his back because he was trying to get his depression under control. His back was a problem and still is. 52
69 The plaintiff attended Eureka on 9 March 2012 seeking a WorkCover certificate, having last been there in June 2010. He then advised had an MRI scan pending. 53
70 The plaintiff could not explain why he needed three general practitioners at that time. 54
71 The plaintiff denied what happened in the incident was of only temporary and minor consequence, and that he continued to see doctors, principalIy about his depression and anxiety and other unrelated problems, and hardly had any treatment to his middle back. 55
72 The plaintiff was seeing doctors in Portland, and they were giving him pain medication. He would have also probably been with Dr Maher and maybe a doctor in Ararat. " The plaintiff did not know the name of the Ararat clinic. It was just a matter of walking in there, so he did not see a specific doctor. 57
50 T29, T45 51 T45 52 T46 53 T55 54 T56 55 T58 56 T59 57 T60
11 JUDGMENT VCC:LM/DC1AS/Lw/SNAS/LM/As Paulke v Simpson Personnel Piy Ltd 73 The plaintiff was taken through subsequent attendances in 2042 where there
was no mention of a back complaint. In the year after the incident, he would
have seen a mixture of doctors. He was "all over the place in regards to moving and depression and different things". 58
74 The plaintiff moved with his partner to Portland in about December 2012 and
stopped seeing Dr Maher, He then started attending Portland Family Practice ("Portland") where he saw Dr Mendez or Dr Singh.
75 The plaintiff first attended the Portland on 9 January 2013 when it was noted a range of issues were discussed, but not his back. There was no mention of a
back complaint.
76 When the plaintiff attended on I3 February 2043, he complained of back pain, and had been on many medications. He could recall an attendance on
27 February 2013 when he complained of upper back pain which had been recently exacerbated. It was then noted the plaintiff had same issue "few years
back".
77 The pain was then between his shoulder blades and below, in the area the
plaintiff demonstrated in the witness box. He exacerbated his back whilst
fishing. When he described having the same issue a few years back, that was just a term he used. The pain had only been going since 2009.59
78 There were three or four attendances in April2043 at Portland relating mainly to the plaintiff's mental state and a problem with his toe. He agreed there was no mention of a back complaint.
79 "Maybe" the plaintiff did not complain about his thoracic spine on a visit on 15
May 2043, when chronic back pain was noted and he was advised to "get back" after a lumbar x"ray. 60
58 T6, 59 T58 60 T63
12 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd 80 When taken through a number of subsequent attendances not relating to his back, the plaintiff explained he did not mention his back, particularly his middle back probably because he was worried about his chest pain or whatever he was complaining about at that time. 61
81 The plaintiff was pretty certain a complaint of continuous back pain on 30 July 2013 would relate to his middle back. He could not explain why the doctor x-rayed his lumbar spine, but denied it was because he was complaining more of pain in that area, The exercises suggested on 3 October 2013 were for his upper back. 62
82 However, there was an x-ray of the thoracic spine on 2 October 2013, when there was also an x-ray of the right knee. On 24 October 2043, the plaintiff attended for a follow-up and review of his thoracic back pain, which was still
painful.
83 The plaintiff could recallattending Portland on 14 November 2013 after his back had "caved in" when on a boat two weeks ago and his low back was noted as being tender. 63
84 The plaintiff was asked about an entry on 28 November 2013 which set out he had chronic pain was on OxyContin. Reason for contact, x-ray lumbar. 64
85 The plaintiff denied that more often than not, when he was going to the doctor about his back, it was his lower back. He did not know why there was another x-ray of his low back some six months after the one earlier in 2013. He denied it was because he was complaining about lower back pain. 65
86 The plaintiff did not mention his thoracic or middle back on subsequent occasions, including 23 December 2013, because he had other problems; on
61 T63 62 T65 63 T65 64 T68 65 T68
13 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Ply Ltd that occasion, namely his left hip. Over subsequent months, he could not explain why there was no inid-back complaint. 66
87 There were two entries in February 2014 noting pain being tolerable with medication, and advice about OxyNorm. The plaintiff was pretty certain these
entries related to his middle back pain. That was when the doctor was starting
, him off on OxyNorm when Panadeine Forte was not working and he did not want to go back into his codeine addiction. 67
88 The entry of 7 March 2004 was about low back pain and advice for physiotherapy. The plaintiff denied he was guessing or being deliberately misleading when he said this meant his thoracic spine. Constant references to the low back were because his low back was also sore. 68
89 The plaintiff said the visit of 13 March 2014 was to get medication for his middle
, back when it was noted there were sciatic-type symptoms on the left leg and something about his knee. He takes Tangin predominantly for his middle back. 69
90 It was suggested numerous entries were in relation to unrelated matters. There
were times when the plaintiff got repeat prescriptions for Tangin, but by and
large hardly any entry referred to his middle or thoracic spine. The plaintiff did not know why this was the case. He just knew he got his prescription each month. 70
94 The last attendance at Pornand was on 8 April20,5, when there was a note of
low back ache and a CT scan of the lumbar spine. The reason for contact was CT and T spine, cervical degenerative thoracic spine, 'I
66 T69 67 T69 68 T70 69 T70 70 T73 71 T74
14 JUDGMENT VCc:LM/DC1As/LW/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd 92 Since 7 May 2015, the plaintiff has been attending Seaport Medical Centre, ("Seaport") where he sees Dr Patel and Dr Stephanson. The plaintiff changed to Seaport because that is where his girlfriend goes. 72
93 On the first attendance at Seaport, it was noted Mr Das had organised an MRI scan of the plaintiff's thoracolumbar spine on I May 2015.
94 On 21 May 2015, it was noted the plaintiff was rabbit hunting tomorrow, and felt he always got excruciating pain in his back, and wanted Tangin. The plaintiff explained that entry meant his middle back. 73
95 The plaintiff was asked about an entry on 44 June 2015, "constipation due to Endone, uses infrequently, only when rabbit hunting, fishing", He was not doing
those activities often. He only went rabbiting probably two or three times a year, He could go fishing and hunting and not be able to work, because doing those activities he gets to sit down and it is not for a full eight hours, He does these activities when he can. If the pain is too bad he does not go.
96 The plaintiff denied he chose not to work. " He has not applied for any job in five and a half years, He can go fishing and rabbiting for a short period, two or three hours at a time. Four or five hours would be pushing it - maybe with fishing, but not with rabbiting. 75
97 When the plaintiff saw Mr Shannon for a medico-legal examination in October 2015, he was using Fentanyl patches for his middle back. 76
98 When it was suggested that he went to the doctor a lot of times and hardly mentioned his thoracic spine, " the plaintiff said he did not have to mention it all
72 T74 73 T76 74 T76 75 T77 76 T28; Report dated 5 October 2015: patches predominantly for a back injury 77 July 2010
15 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd the time, because "they know that's the problem". He agreed his cervical and lower back is also a problem. 78
99 On 6 August 2015, there was a note "knee pain and wanting Endone, as off fishing for three days". At that time, the plaintiff went to Salt Creek and never
actually fished, just watched a couple of mates. They drove there, but he did not, The trip was about three and a half hours to just over the South Australian border. The plaintiff agreed he then wanted Endone for his knee. 79
100 On 23 May 2016, it was noted "ind back pain when shifting car seat. Following day went rabbit hunting, extra Tangin. " An x-ray of the knee and thoracic spine was organised at that stage. 80
104 The plaintiff agreed by and large the entries did not mention his thoracic spine. "
102 The plaintiff denied, although he was taking more than he was prescribed, that
he was abusing his medication, as Dr Stephanson described in his report. On the days when he felt he needed more tablets, the plaintiff took them, so he was using up his prescription before the due date. 82
103 As of October 2016, when he swore his first affidavit, the plaintiff was about to take up a physiotherapy program at Romand YMCA.
104 The plaintiff was then taking Tangin daily. He took medication for diabetes. He
continued to take Prozac and Seroquel. He was taking Effexor before the incident. 83
105 The plaintiff had always done heavy physical work but did believed he could no
longer do so because of his back problem. He did not believe he had the aptitude or skills to perform office~based work.
78 T77 79 T78 80 T79 81 T79 82 T8, 83 T8
16 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v SImpson Personnel Pty Ltd 406 The plaintiff believed that his depression was now under control and had been so since he started work with the defendant. However, he had found it more difficult to control his depression since the incident due to the pain and
limitations his injury imposed on him.
107 The plaintiff used to enjoy rock fishing and fishing locally, but his fishing was now very restricted. He still fished off the Lee Breakwater at Portland from time to time, but had to be very careful when climbing down the rock wall. He only
did so if he had a fish on the line.
108 Post incident, activities like gardening were restricted to only light activities and the plaintiff would now not be able to do any mowing because the pushing
involved would be too much for his back.
109 Driving was restricted to predominantly local areas. When the plaintiff had to drive longer distances, he did so for about an hour before having to take a break due to increased back pain.
140 When sitting for long periods, the plaintiff had back pain and had to move around or stand to ease it. He could not lift more than 8 to 10 kilograms without experiencing increased back pain. Bending and twisting, even toileting, were now difficult because of the twisting involved.
1/1 The plaintiff's back pain woke him at night and he could not get back to sleep. His sleep was disturbed due to pain and he was lucky if he could sleep more than two hours without waking. That meant he was generally tired and irritable during the day. His back pain also affected his intimate relationship with his
partner.
1/2 The plaintiff currently takes Tangin, Prozac and Seroquel daily. He has also taken diabetes medication for a long time.
113 The plaintiff continues to have physiotherapy with Mr Hine every two to three weeks. He does also does hydrotherapy, with the same frequency, to
17 JUDGMENT VCc:LMDC/As/Lw/SNAS/LM/As Paulke v SImpson Personnel Pty Ltd strengthen his back. He sees Dr Stephanson monthly, who suggested he have a bone scan because of his ongoing difficulties but that had yet to be arranged.
114 In the last six months, the plaintiff has been having physiotherapy and seeing
his doctor regularly, and also swimming. He has not been referred to a spinal surgeon at any stage. " No doctor has suggested specialist treatment, and if
they did, he most definitely would attend for it. 85 ,
145 The plaintiff went to a pain clinic in Geelong two or three times, last year or the year before. Pain management was discussed in a group session. He was sent there because of issues with his medication, 86
1/6 The plaintiff uses heat packs and a massage machine three or four times a week on his upper back to try and relieve his continuous pain, between his
shoulder blades. That pain never goes away and, on occasions, it can be very debilitating.
117 The plaintiff has difficulty sleeping. He wakes a lot because of pain in his upper back, which spreads into his right shoulder and then he cannot get back to sleep, Driving is restricted, He could perhaps drive for an hour at most, and
then has to have a break and needs to stretch because of back pain. Sitting and standing is quite restricted and he does not believe he could sit or stand in
the one spot for more than an hour without increased back pain. Walking is also restricted to 20 or 30 minutes if he goes carefully.
148 The plaintiff cannot go fishing off the Lee Breakwater now because it is too
difficult climbing over the rocks. Also casting a surf rod increases his back pain. He does go boat fishing three to four times each summer, but only on calm days. He finds he can cope with this because the rods are shorter and he does
84 T86 85 T89 86 T80
18 JUDGMENT VCc:LM/DC1As/LW/SNAS/LM/As PaulKe v Simpson Personnel Pty Ltd not have to cast any distance. However, even that activity causes increased
back pain.
1/9 The plaintiff agreed he goes boating and fishing. " He would say he went with Mr Galea once in the last year. " He fishes occasionally. He agreed he told Mr Galea he did not fish because he found casting a surf rod irritated his back injury. That they went out on the boat four times each summer. "
120 Probably two or three years ago, Mr Galea came to the plaintiffs home the day after they had been fishing and the plaintiff was in bed due to back pain. Mr Galea would have come over only once or twice after fishing. Most times, he just rang. 90
121 The plaintiff's lifting is restricted to no more than 8, perhaps 10 kilograms on occasions, but certainly not regularly or from the ground. Bending and twisting
are difficult.
422 If the plaintiff uses his shoulders, he gets increased pain between them and into his upper back. Sexual relations with his partner are affected because of the
ongoing pain.
123 At the time of the incident, the plaintiff weighed about I 00 kilograms. He now weighs 425 kilograms and, on occasions, has been even heavier. Because he cannot exercise and he is not active like he was before the incident, he has put on weight which does not help. At one stage, he weighed 150 kilograms, but had managed to reduce his weight through a strict diet. However, he could not seem to get below I 25 kilograms.
87 T65 88 T66 89 T67 90 T68
19 JUDGMENT VCc:LM/DC1AS/LW/SNAS/LM/As Paulke v SImpson Personnel Pty Ltd 124 The plaintiff thinks he is getting worse slowly because he is much stiffer now than he was in the past. He does not think his medication is having as much effect to reduce the pain.
125 The plaintiff's depression related to the incident has not changed significantly but, on some occasions, the pain does get him down. He takes the same antidepressant medication. He believes he would be able to work if he did not have the back injury and his depression was as it is today.
126 The plaintiff's inability to work comes from the back condition because lifting, bending and physical activity using his arms is now very restricted.
127 The plaintiff disagreed with Mr Simm's view that he had recovered, or largely recovered, from any exacerbation resulting from the incident. "
128 The plaintiff denied he was possibly deliberately exaggerating his symptoms as Dr Wood reported. 92
Lay evidence
f 29 The plaintiff's friend, Peter Galea, swore an affidavit on 28 September 2017.
130 Mr Galea has known the plaintiff for about five years, first meeting him when he was fishing on the breakwater
134 Thereafter, the plaintiff used to regularly come down to the breakwater to watch and keep Mr Galea company. The plaintiff told him he did not fish because he found that casting a surf rod irritated his back injury.
132 Mr Galea and the plaintiff go out in Mr Galea's boat about four times each summer, picking a day when it is very calm. If it begins to blow up, they come in immediately, Even on calm days, the plaintiff tells him he is very sore afteiwards.
91 T86 92 T87
20 VCc:LM/DC1As/Lw/SNAs/LM/As JUDGMENT Paulke v Simpson Personnel Pty Ltd 133 Mr Galea has seen the plaintiff taking medication while they are out in the boat. They only go out for a couple of hours at a time, and the plaintiff will generally tell him when it is time to come in. Mr Galea does all the work, getting the boat
on and off the trailer and he cleans any fish they have caught.
434 Often, if Mr Galea calls the plaintiff the day after they have been fishing, the plaintiff will be in bed due to back pain,
t35 The plaintiff is unable to drive long distances. Mr Galea generally takes him to appointments in Melbourne. On the way, they stop every hour or so to enable the plaintiff to have a stretch and a rest, which makes it a long drive.
136 When the plaintiff's back pain is bad, he generally tells Mr Galea he does not want to see him or do anything. He has also told him he suffers from depression, and when he is feeling low, the plaintiff will tell him not to bother contacting him until he is feeling better.
137 The plaintiff's partner, Christine Dobson, swore an affidavit on 28 September 2017. They have been together since 2014 , having first met when the plaintiff was working for the defendant.
138 Ms Dobson can recall in about February 2002, the plaintiff coming from work
and telling her he had injured his back.
139 Prior to the incident, Ms Dobson was aware the plaintiff suffered from depression, for which he took medication. Due to his back injury, he was not able to return to work and began receiving the Disability Support Pension some time later. She was not aware of him having had any back problems prior to
the incident.
140 They moved to Port!and in about December 2012,
141 Ms Dobson feels the plaintiff's back pain is getting worse, if anything. He has trouble driving for more than about 20 minutes, and she generally drives if they
21 JUDGMENT VCC:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd are travelling long distances. He still needs her to stop frequently so he can
stretch his back.
f42 Ms Dobson does all the housework, gardening and lawn mowing. The plaintiff helps when he can, but has to be careful not to overdo it or he suffers for it. He
cooks from time to time.
143 Before the incident, the plaintiff was a keen fisherman, both from boats and from
the shoreline, He no longer fishes from the rock wall at Portland, He has told
her his back pain increases climbing about on the rocks, and he cannot cast his surf rod properly without causing increased back pain.
444 The plaintiff goes out in a friend's boat three or four times a years during the summer months, only when the sea is calm. Even then, he has told her his
back gets jarred and he often has to spend time in bed to recover, Fishing was a large part of the plaintiff's life and she knows that he misses it.
145 The plaintiff sleeps very poorly. He is constantly moving to get comfortable and
he wakes up every couple of hours. When he is having a really bad night, he gets up and watches television. He is often tired and irritable, and she tends to leave him alone as much as possible because he is often grumpy and snaps at her. Their sex life is almost non-existent due to his back pain.
146 Ms Dobson believes the plaintiff's back pain has had an effect on his
depression. He seems to get depressed much more frequently than when she first met him. He has also put on a lot of weight since the incident due to inactivity. She knows that this upsets him as he was quite fit when they first
met.
Treatsrs
147 Dr Arthur Obj from the Patrick Street Family Practice in Stawell reported on 3 September 2016.
22 JUDGMENT VCc:LM/DC1As/Lw/SNAS/LM/As Pauike v SImpson Personnel Piy Ltd 148 Dr Obj confirmed the plaintiff suffered a back strain in the incident and denied any sciatica at that time. His back pain symptoms persisted, coupled with the development of left lower limb sciatica, requiring radiological imaging of his
back on 8 March 2012.
149 Dr Obj reported this investigation showed a disc prolapse at L4-5 and L5-SI joint spaces with the suggestion of exit foraminal stenosis in the right more than the left. The plaintiff's pain was managed at the time with NSAID, and opiate analgesia. He was referred for physical therapy on 6 February and 21 March 2012. He had since been lost to follow up.
150 Dr G Patel from Seaport Medical Centre reported in June 2015.
151 Dr Patel diagnosed the plaintiff's work-related injuries as:
(a) intervertebral disc protrusion at thoracic vertebra T7-8 space causing pain, noting the extent of the disc protrusion had been identified on the MRI
report;
(b) disc degeneration at T8-9 and Tit -12 consistent with Scheuermann's
Disease;
(c) severe disc degeneration with complete loss of disc height at lumbar intervertebral space at L5-SI ;
(d) pain and disability resulting from the above problems in his back;
(e) psychological issues of low mood as a result of pain and inability to have a fulfilling employment.
152 In terms of physical injury alone, Dr Patel thought the plaintiff would be unable to return to pre-injury duties in the foreseeable future. He did not consider the plaintiff would be able to obtain reemployment and thought his incapacity was likely to be permanent with little improvement.
23 JUDGMENT VCC:LM/DC1AS/LwlSNAs/LM/As Paulke v Simpson Personnel Pty Ltd 153 Dr Patel considered the plaintiff's physical injuries alone would cause him to have restriction with social interaction and domestic work. His back pain and stiffness would prevent him from performing simple tasks such as lawn mowing, vacuuming, and even cooking meals at times. Socially, it was hard for the plaintiff to enjoy any recreation without being in pain. He has to pre plan his outings, ie rabbit hunting, with adequate analgesia.
454 Dr Patelthought the prognosis forthe plaintiff was bleak in view of the chronicity of the problem and ongoing signs and symptoms of his organic back disease.
I55 Dr Stephanson from the Seaport Medical Centre reported in November 2017.
He took over the regular medical care of the plaintiff earlier this year and had access to the previous clinical notes when writing his report.
156 Dr Stephanson noted the injury in this instance was both a thoracic spondylosis with associated lumbar spine discopathy of L5-SI. There were no associated lower limb neurological radicular deficits. There had also been a significant weight gain and deconditioning since the initial injury.
f 57 Dr Stephanson noted as always in patients with chronic complex medical
conditions, the treatment approach has been holistic. They have attempted to decrease the plaintiffs reliance on opioid analgesics and initiated an extensive
physical therapy regime which involves regular attendance upon a
physiotherapist as well as separate hydrotherapy through Pornand YMCA. WorkCover approval was sought and granted.
158 Regarding the plaintiff's opioid analgesics, Dr Stephanson advised he had considerable difficulty in stabilising the plaintiffs pain with multiple unsanctioned increases in medication taking noted at the initiation of ' their therapeutic relationship, These largely arose from the plaintiff's inadequate pain control and lack of understanding about the role, correct use and safety profile of this
medication.
24 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Piy Ltd 159 Dr Stephanson noted that the plaintiff is now very aware that these practices are unhelpful and cannot continue, and he has been educated in relation
thereto.
160 Dr Stephanson also noted that the relationship between depression, anxiety and stress and pain levels had also been extensively addressed. To that end, they had successfully been able to rationalise and optimise the plaintiff's psychotropic medications which, at the previous doses, were, in his view, having an adverse metabolic effect upon the plaintiff.
161 Dr Stephanson believed the plaintiff's psychological state is now optimised and is not a significant contributor to his persistent inability to work. Additionally, his opioid analgesic regime has been simplified to one analgesic tablet, Tangin, taken twice daily which has aided compliance.
162 Dr Stephanson noted the plaintiff had multiple other coinorbidities which he attempted to address and optimise. Specifically, the plaintiff had been referred to a banatric surgeon" and advice regarding his diabetes had been provided. He expected the regular exercise program to also have benefits for the plaintiff s psychological health and weight management.
163 Dr Stephanson noted he had been recently contacted by a Worksafe medical practitioner enquiring about the plaintiff's condition. He explained the plaintiff required a bone scan to try and elucidate possible sources of his ongoing spinal pain, but Dr Stephanson had yet to get written authorisation for this procedure. Nevertheless, he proceeded to organise it.
164 Pending the result of this scan, Dr Stephanson thought it likely that he would reinitiate a referral to a pain specialist. Given the absence of radicular neurological symptoms, it was unlikely a spinal surgeon would be able to provide any surgical intervention.
93 Seen by Mr Clifford, who placed the plaintiff on a waiting list for surgery
25 JUDGMENT VCc:LM/DC1AS/Lw/SNAs/LM/As Paulke v SImpson Personnel Pty Ltd 165 Dr Stephanson thought that the plaintiff does not have any capacity to return to his pre-injury duties currently and for the foreseeable future. Sadly, although he believed they were still making gains with the plaintiff's treatment, he believed the plaintiff would never be able to return to any type of work for which he is reasonably trained or experienced in, The plaintiff has a very limited education and would need to undertake extensive retraining to explore the possibility of non-manual work options. Dr Stephanson thought that the prospects of the plaintiff successfully being able to retrain were very remote.
166 Roscoe Hine, physiotherapist from South-west Active Rehab and Therapy, started to treat the plaintiff in September 2017.
167 On presentation, the plaintiff reported pain in the thoracic and right scapula region, as well as intermittent low back and neck pain. Symptoms tended to be worse on prolonged sitting, lifting or reaching activities.
468 On examination, there was moderate restriction to extension of the thoracic and lumbar spine as well as thoracic rotation. There was multilevel hypermobility of the inid to lower thoracic intervertebral joints. Mr Hine noted the plaintiff's MRI reports of spondylosis at multiple levels and lower lumbar disc degeneration,
169 Mr Hine advised Dr Stephanson that treatment will include spinal mobilisation, soft tissue relief and an exercise program with the aim of improving spinal mobility and strength.
Medico-legal evidence
170 The plaintiff was examined on two occasions by Mr Douglas Gardiner, orthopaedic surgeon, initially in June 20.6 then more recently in July this year.
171 Mr Gardiner was provided with MRI of the thoracolumbar spine of May 2015 and reports from Dr Patel and Dr Elder.
t72 The plaintiff told Mr Gardiner that he was functioning satisfactorily at home and work prior to the injury. He reported a back injury ten years ago at Laininex,
26 JUDGMENT VCC:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd .
following which he had physiotherapy and chiropractic treatment, and claimed to have experienced satisfactory resolution of all symptoms.
173 Mr Gardiner noted the plaintiff's medical coinorbidities included Type 2 Diabetes, major depression and increased weight gain since he stopped work.
174 The plaintiff told Mr Gardiner of the incident, following which he suffered " immediate severe pain in the middle of his back and also reported low back
pain to a lesser extent,
175 The plaintiff told Mr Gardiner that Dr Obj was not particularly helpful, giving him OxyContin and not examining him. The plaintiff became rather agitated and asked Dr Obj to perform an x-ray.
176 The plaintiff advised Mr Gardiner that he was informed by his employer that he could be paid a small proportion of wages on WorkCover or go on a pension. So being completely ignorant of his WorkCover situation, the plaintiff did as
instructed and attended Centre!ink,
I77 On examination, there was slight tendemess in the thoracolumbar region and, to a lesser extent, the lumbosacral spine.
178 The plaintiff complained of ongoing significant lower thoracic back pain which was constant but subject to exacerbation to a variable level on some days. He indicated the area to be in the inid thoracic spine but also told Mr Gardiner he experienced some low back pain in the lumbosacral region.
179 Mr Gardiner described the plaintiff as a solidly built inari whose only experience in the workplace had. been in physical tasks. He noted the plaintiff had pre- existing lumbosacral and thoracolumbar degenerative changes which had been irreversibly exacerbated by the incident.
180 Mr Gardiner diagnosed thoracolumbar spondylosis and L5-S, disc
degeneration without radicular symptoms.
27 JUDGMENT VCc:LMIDo/As/Lw/SNAs/LMiAs Paulke v SImpson Personnel Pty Ltd 18f Mr Gardiner thought in the foreseeable future, the plaintiff would be precluded or restricted from employment in anything that requires bending, twisting or he ary lifting. After this amount of time following injury, he could not see an easy resolution was likely.
182 Mr Gardiner thought the plaintiff was permanently not fit to resume pre-injury duties as they required vigorous physical demands on this thoracolumbar and lumbosacral spine.
183 From a purely physical point of view, Mr Gardiner thought the plaintiff had the ability to perform clerical duties if he worked in an office space where he could
move about with variations in posture within an ergonomic environment. In Mr Gardiner's view, clearly, the plaintiff is not qualified at present for such activities as he has no education beyond Year 9 and it would be difficult to bring him up to the appropriate level to engage in useful clerical duties. If such employment was somehow arranged, Mr Gardiner thought the plaintiff would not be able to
work in anything more than a part-time capacity.
184 Mr Gardiner also noted the plaintiff was severely limited in his recreational and
domestic activities.
185 Mr Gardiner strongly suggested the plaintiff be examined by an appropriate!y qualified spinal surgeon who might suggest some specific treatment and he should continue taking Tangin.
186 Mr Gardiner thought the prognosis for a return to anything for which the plaintiff
was qualified, and his pre-injury recreational activities, was poor. The plaintiff
would never regain function of his thoracolumbar spine or lumbosacral spine for
that matter.
187 Mr Gardiner re-examined the plaintiff in July 2017.
188 The plaintiff then complained of ongoing significant lower thoracic pain which
was constant, but variable. He indicated the site of pain, being the inid thoracic
28 JUDGMENT VCc:LM/DC1As/LW/SNAS/LM/As Paulke v SImpson Personnel Pty Ltd spine, but also told Mr Gardiner that he experienced some lower back pain in the lumbosacral region.
189 Mr Gardiner confirmed his earlier diagnosis and views as to the plaintiff's
capacity for pre-injury and alternate employment.
190 Mr Gardiner agreed with Dr Wood that there were non-work related factors impacting on the plaintiff's current condition, but the fact remained that had he not had the incident injury, the plaintiff would be deconditioned and would not
be as obese.
191 Mr Gardiner agreed with Dr Wood that more active rehabilitation may be of benefit but rioted the plaintiff had already attended the Job Options counselling service where Mr Radley thought he was not fit for work.
492 Mr Gardiner thought the plaintiff seemed like a genuine individual and he would disagree with Dr Wood's statement that there was a significant interaction of psychosocial factors and possible deliberate exaggeration. He noted Dr Wood based that view on what he suggested were non organic features. Mr Gardiner did not find tenderness out of proportion to the degree of palpation when he
examined the plaintiff.
193 Mr Gardiner agreed with Dr Wood that the plaintiff did not have a capacity for
pre-injury employment duties.
Vocational evidence
194 Mr Bill Radley, psychologist and vocational assessment specialist, provided a vocational assessment report having interviewed the plaintiff on 26 April20,7.
195 Mr Radley noted there were a number of factors present as significant barriers to the plaintiff returning to work as a result of his injury, including his low level of general education, Year 9; his residential location in Port!and, about 400 kilometres from Melbourne; his limited general work skills, all of which have been in unskilled, semiskilled and skilled non-trade manual practical
29 JUDGMENT VCC:LM/DC1AS/Lw/SNAs/LM/As Paulke v SImpson Personnel Pty Ltd ,
occupations over the past twenty seven years; the nature, extent and physical
limitations of his thoracolumbar spine injury; his poor adaption to his injury and chronic pain, and that he has never participated in a multidisciplinary pain management program; his inability to participate in any form of higher education
or occupational retraining; his inability to provide a consistent and regular
physical work capacity for any type of employment; his poor medical prognosis; the lack of formal rehabilitation assistance to assist him with injury adjustment,
vocational assistance and career counselling and planning, and the uncertainty surrounding the current injury litigation.
196 Mr Radley concluded the plaintiff has no current work capacity to return to his pre injury employment or any type of alternative employment. Further, in his
view, the plaintiff has no capacity for any type of occupational retraining.
197 Without some significant improvement in his physical capacity to engage in
. manual physical work activities, Mr Radley thought the plaintiff's present level of incapacity for employment was likely to continue for the foreseeable future.
The Defendant's evidence
Claim documents
198 On 44 September 2000, the plaintiff submitted a claim for compensation for a
strained lower back suffered on 34 August 2000. The injury occurred when "board slipped twisted and turned to catch it". The plaintiff answered "No" to
the question whether he had had any previous pain or disability in the area of his present injury condition.
199 The plaintiff submitted a claim for compensation on 6 December 2002. He
described an injury on I November 2002 when lifting a finished product into a press, the product fell from a height and the plaintiff attempted to catch it. He
had immediately back pain in his lower back.
30 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd 200 On the Claim Form, it was noted the plaintiff's doctor at that time was Dr Halliburton in Ballarat. The affected part of the body was the lower back. The injury was a lifting strain to the lower back lumbar region.
204 The plaintiff answered "Yes" to the question whether his present injury condition affected the injury or condition he had previously suffered. He described a similar injury treated with physiotherapy and painkillers and time off work with
Laininex.
202 There was an injury incident/near miss report form from PFD Food Services setting out the plaintiff suffered injury on I I December 2009 to his back = "I was lifting and twisting restacking boxes in the back of the truck as the pallets weren't wrapped ... when I started getting serious pain in my upper back".
203 The plaintiff submitted a Claim for Compensation in relation to this Injury on 41 December 2009. The affected body part was described as the upper back/thoracic sprain. The plaintiff described "whilst lifting and twisting I started getting pain in my upper back '.
204 The plaintiff answered "No" to the question whether he had had any previous pain disability in the area of his present Injury/ condition.
205 In his claim form dated 19 August 2012, the plaintiff set out that he suffered a thoracic back injury - "side gate fell away from truck whilst I was swinging it down on its hinges. I kept hold of gate as it fell".
206 In that form, the plaintiff answered "No" to the question "Have you previously had another injury condition or personal injury claim that relates to this injury
condition?"
Certificates
207 Dr Sanderson certified the plaintiff unfit for any duties from 17 December 2009
until3 January 2010 due to thoracic sprain.
31 JUDGMENT VCc:LM/DC1As/Lw/SNAS/LM/As PaulKe v SImpson Personnel Pty Ltd 208 On 41 January 2040, Dr Sanderson certified the plaintiff fit for modified duties as specified under a return to work plan.
209 On 28 January 2010, Dr Sanderson certified the plaintiff fit for modified duties,
six hours a day, from 25 to 29 January, then eight hours a day.
240 On I2 February 2010, Dr Sanderson certified the plaintiff fit for modified duties from 15 to 26 February 2010. It was noted "return to driving lifting less than 15 kilograms full hours". Then I March 2010 "trial of full duties".
214 There were a series of certificates completed by Dr Obj following the incident.
242 On I March 2012, Dr Obj certified the plaintiff as totally unfit from 10 February to 8 March due to "muscle sprain - acute low backache supporting heavy load unassisted inadvertently done - tried to hold back a falling side gate of a truck"
213 On 21 March 2012, Dr Obj certified the plaintiff unfit for work on the same basis from 8 March to 5 April20,2.
214 On examination on 20 April20,2, Dr Obj certified that he expected the plaintiff to be fit for normal duties from 23 April20,2.
The Defendant's medico-legal evidence
215 Dr David Elder, occupational physician, examined the plaintiff for the purposes of his s98 impairment claim in February 2016.
216 Dr Elder had available Dr Obj's notes of 21 March, 5 February and 2044 and
then an attendance on 27 February 2013 with a different practitioner,
217 Having read through all the history and having discussed it with the plaintiff, Dr
Elder accepted the plaintiff had ongoing thoracic spine dysfunction with no resolution of his symptomatology.
\
248 The plaintiff confirmed that although he was cleared for normal duties, he never
actually got back to work with the employer. He had not been able to work since and had been on weekly payments for three months.
32 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd 249 On examination, the plaintiff complained of continuing inid thoracic back pain which did not radiate elsewhere, and he had no radicular features in his upper
or lower extremities.
220 Dr Elder noted the plaintiff had a plain x-ray in May 2005 of his back. He could not really remember what had caused his symptoms and it resolved well enough for him to continue working.
221 Dr Elder concluded the plaintiff had mechanical thoracic spine pain with no clinical evidence of radiculopathy. He thought the weight of evidence supported the plaintiff's contention there was no complete resolution of symptomatology. He allowed a 5 per cent whole person impairment under the Guide.
222 The plaintiff was examined by rheumatologist, Dr Nigel Wood, in October 2016.
223 The plaintiff described the incident and the immediate onset of pain felt between the shoulder blades posterioriy.
224 On examination, the plaintiff reported pain affecting the poster10rthoracic region persisting although fluctuating in severity. He also described the pain spreading to intermittently involve the neck and poster10r shoulder girdle as well as the low
back.
225 The plaintiff told Dr Wood, as well as some limited gardening, he still enjoyed fishing but only lighter fishing, avoiding surf fishing or fishing off the rocks, and not being able to go in a fishing boat because of the jarring action aggravating
his back.
226 On examination, Dr Wood found there was tender ness certainly over the whole thoracic spine present to only light touch sensation and significantly out of proportion to the degree of palpation. There was no abnormal soft tissue swelling or regional muscle wasting affecting the pares pinal region. All thoracolumbar spine movements were accompanied by descriptions of pain but
33 JUDGMENT VCc:LM/DC1AS/LW/SNAS/LM/As Paulke v Simpson Personnel Pty Ltd there was no evidence of any reflex soft tissue/muscle tightening or spasm and range of movement was normal. Neurological examination was normal.
227 Dr Wood thought the MRI of the thoracic and lumbar spine performed in September 2016 was within normal limits and the type of changes seen commonly occurred in otherwise asymptomatic individuals of a similar age to the plaintiff and he did not think they were likely to be any clinical consequences.
228 Dr Wood noted the plaintiff described continuation of the same thoracic back
pain that commenced in February 2012 and therefore it seems reasonable to
conclude that his employment with the pre"injury employer continues to
contribute to his current condition.
229 Dr Wood thought the incident resulted in the onset of mechanical thoracic back
pain that had not recovered because of lack of any physical rehabilitation
treatment. In particular, he noted the plaintiff had gained a significant amount of weight and had deconditioned dramatically.
230 Dr Wood thought there were non-work related factors impacting significantly on the plaintiff's condition " in particular, his significant weight gain and loss of
general muscular condition because of inactivity and failure to perform any form
of rehabilitation.
231 Dr Wood believed the best practice for the plaintiff's condition was to start some physical rehabilitation and actually withdraw his medication which Dr Wood
considered counterproductive. He hoped the plaintiff could progress to a self-
management program after a few months of establishment and supervision.
232 Dr Wood further reported having been provided with the plaintiffs medical history records from March 2012 through to October 2015.
233 Dr Wood confirmed his earlier view but made some additional comments.
34 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd 234 Dr Wood thought the plaintiff described non-specific mechanical thoracic region pain that he said commenced at the time of the incident. The examination features suggested non organic features, especially tenderness significantly out of proportion to the degree of palpation and the description of pain with all movements but not accompanied by any localised soft tissue tightening or reflex spasm. In Dr Wood's view, this would suggest significant interaction of psychosocial factors or possibility deliberate exaggeration,
235 Dr Wood considered the plaintiff's employment had been a significant contributing factor to the onset of his thoracic back pain and a direct major
contributor to the onset thereof.
236 At the time of the assessment, the plaintiff described to Dr Wood ongoing persistent thoracic back pain aggravated by any thoracic movements which prevented him doing physical activities around the home.
237 Dr Wood did not think the plaintiff had a capacity for pre-injury employment or duties. He considered the plaintiff to be fit for work that did not require bending, twisting, trunk movements, no heavy lifting of weights of more than approximately 5 to I O kilograms, avoidance of prolonged sitting in the one posture for more than approximately half an hour at a time and preferably in a work environment where he could vary his posture between standing and
sitting.
238 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff in August 2017.
239 The plaintiff told Mr Simm he experienced a sharp acute pain in the upper thoracic region following the incident. He also told Mr Simm that he was discouraged from applying for weekly WorkCover benefits and it was suggested he might be better to go on a Disability Support Pension, which he did.
240 In terms of his present condition, Mr Simm thought the plaintiff's symptoms had stabilised and there had not been improvement for some time. He had daily
35 JUDGMENT VCC:LM/DC1AS/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd .
pain which was always a low grade ache which he graded two to three out of ten on a visual pain scale, rising to eight or nine, two or three times a week after standing for an hour or prolonged sitting or car travel.
241 Mr Simm noted the plaintiff had an extensive past history of spinal symptoms and had undergone multiple investigations.
242 On examination, Mr Simm thought the plaintiff presented in a pleasant and
straightforward manner. There was no elaboration of physical signs. Waddell's vertex compression sign was negative. There was no tender ness in the
lumbosacral spine. On fom/ard flexion, the plaintiff experienced quite severe thoracic pain. Thoracolumbar rotation caused quite a marked aggravation of
inid thoracic pain. The plaintiff was moderately tender to deep palpation in the inid thoracic region.
243 Mr Simm noted that the plaintiff presented complaining of thoracic back pain and minimal lumbar discomfort, no referred pain into the lower limbs and he did
not report cervical pain. He related the thoracic back pain to the incident and
Mr SImm thought that could certainly lead to acute thoracic back pain, a symptom from which the plaintiff had suffered in the past.
244 Mr Simm had available a range of documents including the MRI of the spine of 9 September 2016 and a number of earlier investigations, various claim forms,
the records of Dr Obj and a note of the attendance on I I December 2009.
245 Further, Mr Simm had a note of 27 February 2013 that the plaintiff reported recently exacerbating upper back pain. On 23 September 2013, he was
complaining of pain between the shoulder blades which was investigated with
x-rays. On 14 November 2013, there was a complaint of pain in the lower back, and on 22 January 2015 the complaint was of low backache.
246 Mr Simm concluded that the plaintiff had a long history of multiple practitioner
contacts in relation to his spine. He had reported chronic cervical symptoms for
36 JUDGMENT VCc:LM/DC1As/Lw/SNAslLM/As Pautke v SImpson Personnel Pty Ltd which he had sought medical and chiropractic treatment. He had reported in Id thoracic pain with right-sided scapula pain, first in 2009 and subsequently after
the incident.
247 Mr Simm noted that over many years the plaintiff had reported lumbar back pain and referred pain into the left lower limb, He thought the plaintiff had three symptomatic degenerative regions in the spine. The chronic spinal pain had occurred in the setting of the plaintiff's longstanding emotional disturbance which was sufficiently severe enough for him to go on a Disability Support
Pension.
248 Although a precise diagnosis would be difficult, Mr Simm thought the plaintiff had some very early degenerative intervertebral disc changes at the level of the thoracic back pain, and his pain probably related to aggravation of that
pathology.
249 Mr Simm considered such an exacerbation would be expected to improve with
rest and time. He noted it seemed that by April2012, the plaintiff reported to Dr Obj that he did not feel limited in any way. Also, his mood was "super".
250 Mr Simm thought chronic back pain and mood orlevels of depression are linked, and severe and chronic back pain was frequently associated with the
depressive illness.
251 Mr Simm noted the complaints of back pain from that date onwards varied, with recurrent cervical symptoms with a number of investigations after 2012.10wer back pain and left lower limb symptoms for which the plaintiff underwent a number of investigations after 2012.
252 Mr Simm thought there was pathology in the plaintiff's lumbar spine such that it would be reasonable to associate his severe lumbar back pain and referred
lower limb symptoms to that degenerative pathology.
37 JUDGMENT VCc:LM/DC1AS/LW/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd 253 It was Mr Simm's overall impression there was an exacerbation of thoracic back
pain as a result of the incident. The plaintiff recovered, or largely recovered, and had fluctuating thoracic back pain from underlying and previously asymptomatic intervertebral disc degeneration in the inid thoracic region in the following years,
254 Mr Simm did not believe there was a significant relationship between the plaintiffs fluctuating thoracic back pain and the incident. Dr Obj's medical record suggested that within a short time of the claimed thoracic back injury in the incident, the plaintiff was reporting mostly lumbar pain and referred pain into the left lower limb, such symptoms not being problematic today.
255 Mr Simm also noted that the plaintiff's clinical course had features of chronic
pain in association with depression, and he had remained out of the workforce for over seven years. He considered the chronic symptoms would persist, noting the symptom complex fluctuated and at times the plaintiff's cervical thoracic and/or lumbar symptoms dominated.
256 Mr Simm thought that, on the basis of the plaintiff's affidavit and reported symptoms, the incident had resulted in thoracic back strain which probably caused an exacerbation of symptoms from previously symptomatic early degenerative thoracic intervertebral disc changes. He thought the subsequent clinical course was not consistently that of chronic thoracic back pain, but rather that the plaintiff recovered, or largely recovered, from that exacerbation. He
subsequently went on to have relapsing cervical, lumbar and left lower limb symptoms in the years that followed, in addition to exacerbations of thoracic
back pain.
257 Mr Simm considered employment was a significant contributing factor to the temporary exacerbation of thoracic back pain as a result of the incident. In his
view, the subsequent clinical' course would suggest the plaintiff recovered, or
38 JUDGMENT VCC:LM/DC1AS/LW/SNAs/LM/As Paulke v Simpson Personnel Ply Ltd largely recovered, from that exacerbation, and ongoing recurrent symptoms relate to underlying pre-existing thoracic intervertebral disc degeneration.
258 Mr SImm thought that it would be inappropriate for the plaintiff to return to heavy manual work. He considered the plaintiff was physically capable of non- physical forms of employment and he may need further training to obtain employment in this type of work. He would need employment that would allow some flexibility with sitting and standing and confine him to handling light weights between knee and chest height. He noted that the plaintiff admitted to being able to undertake limited work in the vegetable garden.
259 Mr Simm thought that the plaintiff needed to be examined by a psychiatrist.
260 Dr Malcolm Brown, occupational physician, examined the plaintiff in October
2017.
261 The plaintiff described some minor episodes of low back pain in the past but nothing significant. He described the sudden onset of thoracic level back pain
in the incident.
262 Dr Brown had available the March 2012 MRI scan, the x-ray of the thoracic spine of October 2013, the CT scan of 12 May 2014, and the MRI scan of I May 2015.
263 On examination, the plaintiff complained of tenderness to palpation directly over the spine at the level of the upper scapula and also to palpation over the pares pinal muscle masses.
264 Dr Brown noted that the plaintiff complained of chronic thoracic level back pain following the incident. Radiological examination showed some degenerative change there, but there was no clinical or radiological evidence of a serious spinal injury. He thought there was in fact little to find on physical examination.
39 JUDGMENT VCc:LM/DC1AS/LW/SNAS/LM/As Paulke v SImpson Personnel Pty Ltd 265 In Dr Brown's view this condition was not severely incapacitating and did not require any active treatment. It was unlikely there were any continuing effects from the incident and that any continuing mild symptoms related to the degenerative changes seen radiologicalIy.
266 In Dr Brown's view, the plaintiff appeared to have suffered a back strain from
the incident and also appeared to have degenerative change in his spine. Based on the recent findings, it was likely that his symptoms would continue
into the future.
267 Dr Brown thought that the plaintiff had a capacity for work, apart from the
heaviest physical tasks and work involving frequent bending. He considered the plaintiff could undertake most of his pre-injury duties on a self-paced basis,
provided he followed the local council's procedures and requirements of the manual handling regulations.
268 In a subsequent report, having been provided with the vocational suggestions, Dr Brown noted that none thereof, namely lift operator, hardware retailer
assistant and machinery hire assistant, meter reader, courier of light products, order clerk and transfer station ticketing attendant involved constant bending or physically demanding tasks. He consequently believed the plaintiff had the capacity to do each of these jobs on a fulltime basis, noting he should always work within the requirements of the Victorian manual handling regulations.
Overview
269 There is no dispute the plaintiff suffered injury to his thoracic spine in the
incident.
270 The initial claim was for a "thoracic back injury". The claim was accepted and weekly payments were made for a couple of months during which the plaintiff
40 JUDGMENT VCc:LM/DC1As/Lw/SNAS/LM/As Paulke v Simpson Personnel Pty Ltd submitted certificates. The plaintiff's payments were reinstated earlier this year. 94 The defendant has recently sought to terminate these payments. 95
271 Further, by letter dated 15 February 2016, CGU advised the plaintiff that liability had been accepted in relation his back (thoracic spine) injury suffered on 2 February 2012 for the purposes of a permanent impairment benefit.
272 Counsel for the defendant submitted that the plaintiffs serious injury application was confined to the thoracic spine and that any admission by the defendant had been made in relation to that part of the spine only. Thus, Arisett Australia Ltd v Taylor!;6 had limited application in the present case and in any event, "was not as strong as it used to be" following the decision in Sednaoui v Amac Corrosion Protection Pty Ltd. 97
273 It was submitted this is a claim that has been confined to the thoracic spine, and, even though the Particulars of Injury do include the lumbar spine, the plaintiff on his own evidence, the Claim Form, and the circumstances, dictate this is a case about the thoracic spine alone. Therefore, the Court should ignore the consequences of any lumbar impairment and consider the thoracic spine only. 98
274 Further, it was submitted the plaintiff's evidence of ongoing thoracic complaints should not be accepted as his post-incident attendances and request for medication and complaint of back pain related to his lower, not his thoracic spine. 9'
275 In response, counsel for the plaintiff submitted the present application was not limited in the way that had been suggested, and that the Claim Form is "not a
94 Letter from CGU dated 14 February 2017 reinstating payments from 25 August 2016 95 T108; Termination letter dated 15 November 2017 96 12006! VscA 171 97 120171 vscA 66; T, o8 98 T113n I4 99 Tit3
41 JUDGMENT VCc:LM/DC1AS/Lw/SNAS/LM/As PaulKe v Simpson Personnel Ply Ltd sort of pleading". There is no authority for that proposition with the claim form merely setting up a process. It does not bind a worker. ,00
276 Whilst there were some post incident neck complaints, counsel for the plaintiff accepted they were relatively minor or insignificant, but otherwise it was submitted the plaintiff was entitled to claim for the spine and did so, including both lumbar and thoracic regions, in terms of consequences. ,01
277 I accept this submission.
278 There is no authority for the proposition that in the present application, the plaintiff is confined to the injury set out in the Claim Form.
279 Further, whilst the Claim Form referred to the middle thoracic back only, I am satisfied the plaintiff injured both his lumbar and thoracic spine in the incident, the latter being his more significant problem thereafter.
280 Post incident, the plaintiff complained to Dr Obj of both lumbar and thoracic
symptoms. I accept the plaintiff's evidence that Dr Obj focussed on his lower
back complaints and showed some reluctance to treat his upper back as noted
on 21 March 2012 after the plaintiff had requested investigations of his upper
spine.
281 Further, Dr Maher on the plaintiff's first visit post incident in May 2012 recorded a inid-back complaint. 102
282 Save for a number of the attendances in the early days up to May 2012, in the next year or so, the plaintiff was focussed on mental health issues as his
treaters' notes record. I accept, however the plaintiff had ongoing spinal complaints despite the absence of notes to that effect.
100 Tt26 lot Tf26 102 T127
42 JUDGMENT VCC:LM/DC1AS/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd ,
283 Over the following years, there are recorded complaints, admitted Iy more lumbar, and some just "back, " than a specific reference to thoracic or upper/middle back pain. However during that time, investigations have continued to be arranged of both the thoracic and lumbar spine after the plaintiff's first request of Dr Obj. 103
284 Having accepted that this application is not confined to the level of spine described on the Claim Form, I am entitled to treat the plaintiff's spinal impairment as a whole - the one impairment being the injury to two levels of the spine having resulted from the incident. ,04
Diagnosis and significance of the condition
285 There are a range of diagnoses of the plaintiffs current condition. Most medical practitioners consider he continues to suffer symptoms in his thoracic spine described as mechanical thoracic pain or aggravation of degenerative
changes/spondylosis at that level.
286 Further, Dr Pate!, Dr Stephanson, Mr Gardiner and Dr Brown also consider there was aggravation of degenerative changes/spondylosis at L5-SI with no associated lower limb neurological radicular deficits.
287 Counsel for the defendant submitted there was not much of significance on the various thoracic spine investigations, '0' and reliance was placed on Dr Wood's view that these findings were commonly seen with a person of the plaintiff's age. 106
288 However, as counsel for the plaintiff submitted, whilst not a prerequisite for "seriousness, ", 0' the radiology does demonstrate some osteoarthritis in the
103 X-ray lumbar spine 20 May 2013, x-ray thoracic spine 2 October 2013, CT scan Ihoracolumbar spine 42 May 2014, CT scan upper thoracic spine 3 October 2014, MRI scan thoracolumbar spine 12 May 2015, x-ray thoracic spine IO August 2046, MRI scan thoracic and lumbar spine 7 September 2016 104 Transport Accident Commission v Zepic t20.31 VsCA 232 105 T122 106 T, 23 107 T, 41
43 JUDGMENT VCC:LM/DC1AS/LW/SNAS/LM/As Paulke v Simpson Personnel Ply Ltd ,
spine which it was submitted was aggravated in the incident. Further, there can be incapacity without radiculopathy or neurological signs. 108
289 Whilst there may be some support for the plaintiff suffering an injury in the incident, counsel for the defendant relied on the views of Mr Simm and Dr
Brown, who considered any work-related contribution to the plaintiff's present spinal condition had ceased. 109
290 In response, counsel for the plaintiff submitted neither examiner gave any explanation for this view. There was no reference to clinical findings, and there was no reasoned process by either practitioner. ,10
294 I accept that submission and am satisfied the incident continues to contribute to the plaintiff's current spinal condition. It seems Mr Simm's view was largely based on Dr Obj's comments in April20f 2 that the plaintiff was "fully functional" at that time - a situation I do not accept to have been the case.
292 Neither Mr Simm nor Dr Brown explained on what basis they considered the
plaintiff's ongoing spinal impairment related to his degenerative condition not his incident injury.
293 Further, as counsel for the defendant conceded, Dr Wood found an ongoing employment contribution when he examined the plaintiff in October 2016 and
he then thought that the plaintiff's mechanical thoracic back pain had not recovered. ' 'I
294 In my view, the plaintiffs condition has a substantial organic basis. "' Dr Wood is the only practitioner who made any comment as to the presence of non-
organic factors on examination with Mr Simm commenting earlier this year that
108 T146 109 T109 110 T, 43 all T120 ,, 2 Meadows v Libhmore t201 31 VsCA 201
44 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd the plaintiff presented in a "pleasant and straightforward manner", there being no elaboration of physical signs, 1/3
295 While the plaintiff had suffered from depression since about 2008, he believed that that was now under control and had been so since he started work with the
defendant. As Dr Stephanson reported last month, the plaintiff's psychological state is now "optimised" and not a significant contributing factor to his persistent inability to work. ,14
An aggravation?
296 In this case, where there is a pre-existing spinal condition, I must consider what the evidence discloses as to the plaintiffs prior spinal condition and determine whether any additional impairment resulting from the incident is serious and
, permanent.
297 In Petkovski v Galletti, "' the Full Court of the Victorian Supreme Court
accepted the proposition that -
"A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. ... "
298 Counsel for the plaintiff conceded that the plaintiff had pre-existing degenerative disease but he had been working. The plaintiff also had depression before the incident, but had worked in significant heavy employment. The plaintiff then went back to physical work and suffered injury in the incident, before which he had been capable of doing heavy physical work in a meat works for nine or ten months. 116
299 It was further conceded the plaintiff has had some injuries and some strains in the past, however, it was submitted these were minor claims for back strains
113 T120; Mr Gardiner also described the plaintiff as "genuine" 1.4 TitO and Tit3 1/5 t, 9941 I VR 436, followed in AG StaffPty Ltd v Fill?owlcz; Amold Ribbon Co Ply Ltd v FITfy:iowicz (2012) 34 VR 309 116 T4
45 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd which were perfectly consistent with a person who had well established lumbar degeneration shown on MRI in March 2042.117
300 Importantly, as counsel for the defendant conceded, there was no spinal complaint or treatment after March 2010, with the plaintiff working full time at
the time of the incident. Cross-examination as to the plaintiffs pre-incident
spinal complaints was directed more to credit than a submission the plaintiff had a significant spinal complaint before the said date. '''
304 Even though there were a number of claims prior to the said date, the plaintiff did not have more than a month or two off work in relation thereto. As I indicated
during the hearing, I do not consider he had a spinal problem at the time of the
incident.
302 Prior to the said date, there was no specialist referral, injections or other significant treatment, and there was then two years clear of any treatment with nearly a year of full-time heavy work in a meat works before this incident occurred. Further, a number of doctors, having been provided with the plaintiff's pre-incident medical history did not change their views as to the nature of the plaintiff's present spinal condition. "'
303 Taking all the evidence into account, I accept that the plaintiff did not have any significant ongoing spinal complaints at the time of the incident, last seeking treatment in March 2010 and being able to work in heavy duties for nearly a year thereafter until the incident.
Credit
304 As Maxwe!I P said in Haden Engineering Pty Ltd v MCKinnon:120
"... the weight to be attached to the plaintiffs account of the pain experience will, of course, depend upon an assessment of the plaintiff's credibility. "
117 T5 118 Tit6 119 Tit2 120 (2010) 31 VR I at paragraph t, 21
46 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As PaulKe v Simpson Personnel Pty Ltd 305 Counsel for the defendant was critical of the manner in which the plaintiff answered questions about his "previous condition" on the various claim forms. It was submitted that it was a "pathetic excuse" to say he had not hurt himself with the same employer before, particularly when he included details of the Laininex injury and agreed to having suffered previous injury in his other claim. 121
a
306 It was submitted that was a credit issue that reflected poorly on the plaintiff in his 2009 Claim Form, because there had been two or three previous episodes of thoracic pain. 122 Further, it was submitted this December 2009 incident was not an insignificant event. 123
307 Counsel for the defendant was also critical of the plaintiff's failure to mention his pre incident spinal complaints in his affidavits, although having mentioned knee problems and his psychiatric condition. It was submitted the plaintiff's evidence that he did not mention back problems as it did not stop him working
"was a deliberate and evasive response", and "his explanation told against
him "124
308 Further, it was submitted, when the plaintiff swore his affidavits and did not
disclose his history of spinal complaint, it was not a matter of the medical records being available, it was about the plaintiff being frank when he lodged his application, and then detailing historical matters relevant to this proceeding. 125
309 It was submitted the history to Mr Gardiner of complete resolution of all symptoms ten years earlier was not a frank history. 126
121 TIO, 122 T103 123 T104 124 Tt05 125 T105 126 Tt06
47 JUDGMENT VCc:LM/DC1AS/LW/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd 310 Further, it was submitted the plaintiff had overstated the issue of his weight gain due to the incident injury as he weighed I 13 kilograms some time before. 127 It was also apparent from the clinical notes that the plaintiff had overstated his incident related difficulties fishing and hunting. 128
311 It was submitted another credit issue was the "absolute" absence of reference
in the clinical notes to thoracic complaints save for the few months following the incident. 129
312 In response, counsel for the plaintiff submitted the lack of thoracic complaint in the year or so post incident could be explained by the plaintiff's pre-occupation with his significant psychiatric difficulties at that stage. In any event, it was submitted that this criticism of the plaintiff is not a credit issue. 130
313 Further, it was submitted the plaintiff was not evasive in the witness box, making concessions about some matters. It was not a question of him being dishonest or trying to be misleading. He stood by his affidavit and by the difficulties discussed therein. 131
314 It was submitted the plaintiff's affidavits should not be criticised because they are not witness statements. "' However, I indicated I would have expected the thoracic claim in 2009 to be deposed to, although I did not consider it to be a significant injury. 133
315 When I expressed some concern about the plaintiff's various answers to questions about his previous condition in a number of Claim Forms ''' counsel for the plaintiff submitted that filling out forms is not quite as straightforward and as Systematic as has been suggested: "a worker is not engaged in the process
127 T106 128 Tl, , 129 Tt09 130 Ti29, T130 131 T, 38 132 T, 30 133 T, 31 ,34 T131
48 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd that we are engaged in here, and it does not necessarily go to credit, and certainly does not go to the next step of suggesting the plaintiff is trying to hide something. "135
316 While it may be said there was a discrepancy between the plaintiff's affidavit evidence and the amount of fishing and hunting indicated in the clinical notes, counsel for the plaintiff submitted the plaintiff still does these activities, but not as much as pre incident. He does so with pain, and needs to take medication, as the notes confirmed. 136
317 It was submitted the only person who did not consider the plaintiff as genuine and thought there was a suggestion of deliberate exaggeration was Dr Wood, with Mr Simm expressing a totally different view, "' commenting that the plaintiff presented in a pleasant and straightforward manner, there being no elaboration, ,38
3,8 Whilst I had some concerns as to the plaintiff's credit in relation to a number of matters, discussed above, this is not a case where his pre-incident condition
has been concealed to advance his present case. Although it is hard to
reconcile his evidence about his different answers in various Claim Forms and
the fact he made no mention of any back problems in his affidavits when he mentioned problems with his knee and psychiatric condition, those issues did not cause me to question his credibility to any significant degree,
319 Further, there was no evidence challenging the plaintiff's level of pain and disability or the evidence of lay witness who corroborated his account.
Pain
320 As Maxweil P said in Haden Engineering Pty Ltd v MCKinnon:139
135 T, 32 136 T133 137 T, 46; Mr Gardiner also 138 T, 20 139 (Supra) at paragraph nil
49 JUDGMENT VCC:LM/DC1AS/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd "The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain. (both in court and to doctors);
I,
321 The plaintiff complains of continuous pain between his shoulder blades that
never goes away and, on occasions, is very debilitating. There is lower back
pain, to a lesser extent, experienced with prolonged sitting, bending and twisting, and affecting his sleep.
322 The plaintiff described his pain in similar terms to various examiners.
323 On examination by Dr Elder 2046, the plaintiff complained of continuing in Id thoracic back pain and he reported chronic thoracic level back pain to Dr Brown this year.
324 In October 2016, when the plaintiff was seen by Dr Wood, he reported persisted
pain affecting the poster10r thoracic region although fluctuating in severity. He also described the pain spreading to intermittently involve the neck and posterior shoulder girdle as well as the low back.
325 In 2047, the plaintiff told Mr Gardiner he had had ongoing significant lower thoracic pain which was constant but subject to exacerbations. He also had some lumbosacral pain,
326 In September 2017, Mr SImm noted that the plaintiff presented complaining of thoracic back pain and minimal lumbar discomfort.
Treatment
327 The plaintiff has been under the care of a number of general practitioners since
the incident.
328 There has been no specialist orthopaedic referral and the only other treatment
undertaken has been physiotherapy, hydrotherapy and pain management last
year.
50 JUDGMENT VCc:LMiDc/As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd 329 The plaintiff continues to use heat packs and a massage machine.
330 Whilst counsel for the plaintiff conceded there were difficulties with the evidence from the plaintiff's treaters, with their full notes being available but no detailed report until20,5, it was submitted reliance could be placed on the retrospective analysis undertaken by medico-legal examiners who support the plaintiffs case
such as Dr Wood, It was submitted in those circumstances fit is not that the .
plaintiff did not have evidence to put the pieces together, although it is riot the evidence one would like". t4o
334 Whilst counsel for the defendant submitted there had not been significant
treatment, no one had suggested further treatment was appropriate. In any event, the plaintiff was prepared to have further treatment if it had been offered. 141
332 Importantly, as counsel for the plaintiff submitted, ongoing pain is not an insignificant consequence for the plaintiff. It requires, and the plaintiff has had, significant medication, and continues to take Targin, which is a serious prescriptiVe medication. 142
333 As Dodds-Streeton JA said in Kelso v Tatiara Meat Company Pty Ltd:143
"Where chronic pain was a prominent feature of the appellant's case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a 'very considerable' consequence. "
Work
334 The plaintiff's inability to work results from his spinal condition because lifting, bending and twisting, and physical activity using his arms is now very restricted. His lifting is restricted to no more than 8, perhaps I O kilograms on occasions, but certainly not regularly or from the ground. If he uses his shoulders, he gets increased pain between his shoulder blades and into his upper back.
140 T136 141 T142 142 T437 143 [2007] VsCA 267 at paragraph rig9]
51 JUDGMENT VCc;LM/DC1AsiLw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd 335 The consensus of medical opinion is the plaintiff no longer has the capacity for pre injury unrestricted heavy manual work.
336 Treating general practitioners, Dr Patel, in in Id-2015, and Dr Stephanson,
currently, consider the plaintiff is totally incapacitated for work on physical grounds - a view also shared by orthopaedic surgeon, Mr Gardiner, who has
examined the plaintiff twice, most recently in July this year.
337 While Dr Wood thought there was a functional component to the plaintiff's presentation, he did conclude the plaintiff had a light work back. 144
338 Further, Mr Simm thought it was inappropriate the plaintiff return to heavy manual work and considered he had a capacity for light employment.
339 Dr Brown thought the plaintiff had the capacity for work, other than the heaviest
physical duties, and work requiring frequent bending. He considered the
plaintiff was capable of most pre-injury duties on the basis they were self-paced.
He is alone in his view that the plaintiff is fit for all the suggested jobs, with no explanation or analysis of the plaintiff's capacity in relation thereto.
340 in my view, the inability to undertake heary, unrestricted physical work is a serious consequence for this plaintiff, who has a history of only manual work and no particular training or qualifications.
Loss of earning capacity
341 Having satisfied the narrative requirements to obtain leave in relation to loss of
earning capacity, the plaintiff must also establish that -
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more - SI 34AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently - SI34AB(38)(e)(ii).
144 T, 20
52 JUDGMENT VCc:LM/DC1As/Lw/SNAS/LM/As Paulke v SImpson Personnel Pty Ltd .
342 The measurement of loss of earning capacity is set out in paragraph (f) which
requires a comparison between:
co "without injury" earnings; and
(ii) "after injury" earnings.
343 The former must be calculated by reference to the six-year period specified in
SI 34AB(38)(f).
344 "Without injury" earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
345 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker's earning capacity.
346 The plaintiff carries the on us of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (9) therein. 145
347 The plaintiffs wage records indicate that in the 2008"2009 financial year, he earned $44,812. He was earning $895 a week at the time of the incident. Sixty thereof is $537, ''' The parties agreed that is the appropriate "without injury" earnings figure. 147
348 Counsel for the defendant submitted in terms of a claimed total incapacity, it
had to be considered that the plaintiff had had a very chequered work career, with incarceration and a period on a disability support pension. 148
145 Barwon Spinners & Ors v Podolak (supra) at paragraph t701 146 T, 44 147 T2 148 T107
53 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd ,
349 Further, it was submitted the plaintiff had been certified fit for work since April 2012 by Dr Obj. 149
350 Counsel for the defendant submitted that the plaintiff has a capacity for fulltime employment, as Dr Brown and Mr Simm opined. "' Further, Dr Brown thought the plaintiff could do all the work that was suggested by CSS in June this year. 151
351 While Dr Wood considered the plaintiff had, pretty much, a light work back, it was submitted he did raise the possibility of there being a deliberate exaggeration. 152
352 Further, it was submitted that Mr Gardiner did not explain his ultimate conclusion that the plaintiff had no capacity for work as a result of his spinal Condition. f53
353 In response, counsel for the plaintiff indicated that the plaintiff's loss of employment was obviously central to the claim. 154
354 It was submitted Dr Obj's opinion as of March 2012 should not be accepted as he and the plaintiff were not "travelling well" together as patient and doctor, and Dr Obj really did not listen to the plaintiff at that time, whereas Dr Maher specifically did, noting inId back pain in May 2042.155
355 Whilst Dr Obj may have said the plaintiff was "functionally" okay, the plaintiff has continued to report ongoing thoracic spinal pain. 156
356 Counsel for the plaintiff submitted not one of the jobs suggested by CSS was put to the plaintiff, In any event, the jobs were "ridiculous". In particular, counsel
149 Tit7 ,50 T, 07 ,51 T, 22 152 T118 153 T124 154 Ti37 155 Ti28 156 T437
54 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Piy Ltd *
asked rhetoricalIy how could the plaintiff work as a forklift driver? Further, it was ridiculous to say, as CSS did, that that role involved no lifting, bending, or Squatting. 157
357 It was also submitted Dr Wood's restrictions are such that none of the suggested jobs would be suitable"' - namely work not requiring bending, twisting, trunk movements, no heavy lifting of weights of more than approximately 5 to I O kilograms, avoidance of prolonged sitting in the one posture for more than approximately half an hour at a time and preferably in a work environment where the plaintiff could vary his posture between standing
and sitting.
358 It was submitted there was a total jack of a path of reasoning in Dr Brown's reports as to why the plaintiff could do the suggested jobs. Further, there was no analysis by him of the matters relevant under s5 of the Act. 159
359 Reliance was also placed on Mr Radley's view that the plaintiff has no current capacity to return to his pre-injury employment or any type of alternative employment. Further, he considered the plaintiff has no capacity for any type of occupational retraining.
360 I accept the explanation by counsel for the plaintiff as to Dr Obj's preliminary view, namely that there was obviously a conflict between he and the plaintiff, with the plaintiff insisting his thoracic spine was also involved in his incident
Injury, as Dr Obj confirmed in his March 2012 note.
361 When considering the plaintiff's present work capacity, I prefer the evidence of his treaters who have seen him on a regular basis, who consider he is totally incapacitated in relation to his spinal condition alone, having excluded psychological or psychiatric issues. Their view is shared by Mr Gardiner.
157 T, 38 158 T, 44 159 T139
55 JUDGMENT VCc:LM/DC1AS/LW/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd ..
,
362 The plaintiff was not cross-examined as to his ability to do the tasks involved in the jobs suggested by CSS of lift operator, hardware retailer assistant and machinery hire assistant, meter reader, courier of light products, order clerk and transfer station ticketing attendant.
363 I accept if the plaintiff had a work capacity, he would have looked for work 160 He is on significant pain medication and has restrictions in terms of his activity level which would take him out of employment. 161
364 As counsel for the plaintiff submitted, there was no analysis whatsoever by Dr Brown as to why he considered these jobs suitable for the plaintiff. Further, the duties involved do not come within the restrictions imposed by Dr Wood.
365 The plaintiff has no experience or qualifications in office-type work which would be involved working as a retail assistant, order clerk or ticketing attendant. Further, he would be unable to work as a courier because of his problems with prolonged sitting and also lifting.
366 Due to his spinal pain and restrictions, I do not believe the plaintiff has the capacity to perform the tasks involved in the jobs suggested by CSS to the extent that he would earn in excess of $537 per week on a permanent basis.
367 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
368 In light of my findings as to the plaintiff's impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his
160 T, 41 161 T146
56 VCC:LM/DC1AS/LW/SNAs/LM/As JUDGMENT Paulke v Simpson Personnel Pty Ltd ..
capacity for employment, the plaintiff has satisfied the requirements of SI 34AB(38)(g).
369 Mr Radley, vocational assessment specialist, shared this view.
370 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
371 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity. ,62
372 Accordingly, I also grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
162 See For rest J in ACir v Frosster Pty Ltd [2009] VsC 454 at paragraph I 47 and Advanced Wire & Cable Pty Ltd & Victorian WorkCover v Abdulle [2009] VsCA 170
57 JUDGMENT VCC:LM/DC1AS/LW/SNAS/LM/As Paulke v SImpson Personnel Pty Ltd