(Not) Restricted
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AT Melbourne
CIVIL DIVISION
Case No.
DOUG MORIKOVSKI / PlaintiffV
COGHLAN-RUSSELL ENGINEERING PTY LTD / First Defendant
-and-
VICTORIAN WORKCOVER AUTHORITY / Second Defendant
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JUDGE: / HER HONOUR JUDGE COHENWHERE HELD: / Melbourne
DATE OF HEARING: / 10, 11 and 12 July 2012
DATE OF JUDGMENT: / 28September, 2012
CASE MAY BE CITED AS: / Morikovski v Coghlan-Russell Engineering Pty Ltd & Anor
MEDIUM NEUTRAL CITATION: / [2012] VCC
REASONS FOR JUDGMENT
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Catchwords: Serious injury application s.134AB Accident Compensation Act 1985; aggravation to previously symptomatic low back degenerative condition; whether consequences of aggravation constitute serious injury as to pain and suffering and as to loss of earning capacity; injury to left and right shoulders during course of employment; whether individually or as bilateral shoulder function consequences constitute serious injury in respect of pain and suffering.
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APPEARANCES: / Counsel / SolicitorsFor the Plaintiff / Mr P Jewell SC with
Mr J Goldberg / Clark Toop & Taylor
For the Defendant / Ms K Galpin / Wisewould Mahony
COUNTY COURT OF VICTORIA
250 William Street, Melbourne / !Undefined Bookmark, I
HER HONOUR:
1Mr Doug Morikovski worked for Coghlan-Russell Engineering Pty Ltd for more than 20 years during which employment he suffered injury to his low back, and also to both shoulders. He applies to the Court for leave to bring proceedings for damages in respect of those injuries, and to obtain leave he must prove that he comes within the definitions and restrictions imposed by s.134AB of the Accident Compensation Act 1985 (“the Act).
2The first, and main, part of Mr Morikovski’s case is that heseeks leave to bring a claim for damages in respect of both pain and suffering and loss of earning capacity, for injury to his low back, that injury being an aggravation to pre-existing symptomatic degenerative changes in his lumbar spine suffered in a lifting incident on 12 December 2005. Secondly,he seeks leave to claim damages for pain and suffering in respect of his bilateral shoulder function, or alternatively to each of his right and left shoulders, during the course of his employment duties from about 2003 to 2004. The shoulder injury (or injuries) alleged is rotator cuff degeneration with partial thickness tears of the supraspinatus tendon with impingement.
3His claims in respect of each of these injuries are based on part (a) of the definition of “serious injury”, namely that he has suffered “serious permanent impairment of (each alleged) body function”. To satisfy that definition he must satisfy the court that the ongoing consequences for the foreseeable future, of each injury assessed separately, when compared with the range of other possible impairments of body function, fairly meet the description of “more than significant or marked” and “at least very considerable”.[1] In addition, to obtain leave to claim damages in respect of loss of earning capacity, as he seeks to do in respect of his low back injury, he must satisfy the court that he has suffered a loss of earning capacity of at least 40% measured as set out in the statutory formula in s 134AB(38) (f)[2].
4The defendants do not dispute that Mr Morikovski suffered a compensable injury to his low back on 12 December 2005 – liability was accepted for a lumbosacral spinal injury suffered on that date[3]. It is also not disputed that in the course of his employment he suffered compensable injuries to his left and right shoulders[4]. What is in dispute is whether any of those injuries satisfies the definitions and tests for a “serious injury”.
5The defendants argue the following.
(a)Because he had pre-existing symptomatic degenerative change in his lumbo-sacral spine:
(i)any lasting consequences (whether as to pain and suffering or loss of earning capacity) from the injury of 12 December 2005 result from the natural progression of that condition rather than the compensable aggravation; or
(ii)the consequences of the aggravation alone do not meet the test for “serious injury”.
(b)In any event the current and likely permanent consequences from his low back condition do not fairly meet the description“very considerable”, and therefore it doesnot qualify as a“serious injury” as to pain and suffering.
(c)He does notestablish a permanent loss of earning capacity of at least 40%under the formula imposed by the Act[5], because he remained working full time with the first defendant until it closed, and is currently capable of working full-time, albeit not at his pre-injury duties.
(d)In relation to his shoulder injuries, neither shoulder individually, nor in combination if bilateral shoulder function were a single body function, has caused consequences that reach the extent of being fairly described as “very considerable”, in that there is minimal evidence of them restricting his lifestyle. Further, it is disputed that it is appropriate to consider bilateral shoulder function as a single body function.
6The evidence consisted of the documents contained in the attached Schedule, and the plaintiff’s oral evidence. He was the only witness required for cross-examination.
Plaintiff’s credibility
7As in most applications of this nature, the credibility and reliability of the plaintiff’s own evidence is very important, as not only the court but also the doctors’ opinions which are in evidence are all heavily dependent on the plaintiff’s own version of the extent and duration of symptoms, and of their impact on his life.
8My impression of Mr Morikovski was of a man genuinely trying to tell the truth to the best of his recollection, and genuine in his complaints of symptoms. His memory is vague about a number of matters, but I did not consider him to be deliberately evasive or lying. He was frank about pre-existing symptoms in his back, as I am satisfied he has been with doctors, and where it can be shown from records that he gave a mistaken answer about a prior symptom or the extent of medication I am satisfied that he had genuinely forgotten those details. He made other concessions against his interests in this case, including as to believing he could work more hours than he had been at Gordon Institute.
9His history of returning to work after injuries, over many years, including working on with the defendant while in 2006 he attended a spinal clinic for ongoing treatment including several spinal injections, seemed to me consistent with my impression that he is a man of some stoicism, who wanted to keep working and to maintain not only his income but his social interaction and sense of purpose.
Plaintiff’s personal background
10Mr Morikovski is now aged 52 and is a single man with no dependents and lives alone. Since about March 2011 his income has been a carer’s benefit as carer for his mother.
11He was born in Macedonia, came with his family to Australia aged seven, and attended school in Australia to Year 11. He then commenced an apprenticeship for ambulance vehicle building, but left after six months. Over the following years he was a manual worker, commencing as a machinist with the first defendant in October 1986.
12Over his years with the first defendant, the plaintiff always worked in the classification of second class machinist. He worked at various machines, some of which required harder physical effort than others. This work generally involved sustained physical movements including repetitive bending, twisting, lifting, and at times having to reach at or above shoulder height.
13From time to time he had experienced niggling pain or discomfort in his back. I infer from the fact that scanswere taken in the mid-1990s that he must have sought medical treatment for symptoms in his low back. An x-ray taken on 30 June 1994 of his lumbosacral spine showed moderate degenerative narrowing at the L4-5 level with early spondylitic lipping at the disc margins.[6] In March 1995, a CT scan of his lumbar spine was reported as showing asymmetrical degenerative discal bulging of a moderately severe nature at the L4-5 level on the right, with the recommendation of a myelogram to clarify the degree and extent of neural compression if surgery were to be contemplated. There was also reported to be a small focal disc prolapse evidenced centrally at the L5-S1 level impressing upon the ventral aspect of the thecal sac with a little asymmetry of the bony margin of the sacrum on the left which did appear to abut the descending S1 nerve root on the left.[7]
14Then, in 1996, in an incident bending over a rotating wheel winding up a table on a machine, he felt what he describes as “sudden excruciating pain” in his back.[8] He sought medical treatment, and was unable to work for three weeks. After that injury, although he returned to work and to his full duties, he continued to experience pain in the lower back, often radiating towards the right buttock, and for which over the following years he had regular massage treatment and physiotherapy.
15As at 2005, Mr Morikovski lived alone in his own home, performing his own domestic duties, and attending his own garden including mowing the lawns. He played golf regularly – approximately every two weeks – and enjoyed attending football games to watch Geelong play.
The back injury
16In early 2005 the plaintiff’s duties as a second class machinist changed to the extent that he was to work almost entirely on a particular machine which was a press making catalytic converters, and required him to repeatedly fill boxes or crates with completed parts and to lift them, several at a time, from the press to the ground where the pallet was placed onto which they were to be stacked. This was a comparatively heavy task compared with the other machines on which he had previously been rotated. On 12 December 2005 he experienced significant back pain while performing his duties at this machine.
17He attended his then general practitioner, Dr Michael Lim, was prescribed anti-inflammatory medication, the day following the incident underwent a CT scan[9]. It was reported as showing degenerative disc disease with disc space narrowing and prominent posterior osteophytic lipping at L4-5 and L5-S1. The prominent posterior osteophyte on S1 was reported as appearing to impinge on both descending S1 nerve roots.[10] Mr Morikovski was prescribed pain killers and was off work for approximately five weeks. Then, although he says there was very little improvement in his pain, he did return to work but continued to experience severe back pain and right leg pain radiating down the right leg into the right foot.
18In early 2006 he was referred to Metro Spinal Clinic, where he was treated by Dr Gassin. Initially he was prescribed Prednisolone, then underwent a series of injections, being discharged from that clinic in December 2006.
19He has been prescribed different analgesics, and anti-inflammatory medications over the intervening years, and now takes 3 Brufen daily, and Panadeine forte when needed. The defendant queried whether there has in fact been much Panadeine forte needed, and the evidence is too vague for me to find that it is taken consistently in significant amounts.
Medical evidence about back injury
20Dr Michael Lim, of the Belmont BulkBilling Clinic, was the plaintiff’s usual general practitioner from early 2005 until he retired in August 2011 when Dr Deacon took over his care. Dr Lim reported[11] that after the injury on December 12th 2005, his back was very stiff and there was a lot of pain especially in movement, and that pain radiated down the side of his right thigh and to the leg. After the CT scan he was originally treated by analgesics, muscle relaxant and physiotherapy, and was only able to do light duties. Reporting in December 2010, Dr Lim stated that Mr Morikovski continued to have back pain and spasm of his paravertebral muscles from his back injury, was only able to do light duties, was currently on muscle relaxants and analgesics and had been recommended to have physiotherapy, and the condition had not changed over the past three years. Extracts from Dr Lim’s clinical progress notes confirm attendances for back pain where muscular back spasm is noted in the second half of 2007, January 2008 and June 2011.
21Dr Deacon’s report [12]confirms that he is still suffering from chronic back pain with right sciatica which is worse if he does any heavy work and that, although he tried to return to work, he could not cope. She also records that his right foot swells when he stands for long periods. As at February 2012,[13] he was being managed with three Brufen tablets daily and occasional Panadeine Forte.
22Mr Morikovski was referred by Dr Lim to the Metro Spinal Clinic in March 2006, where he was treated by Dr Robert Gassin.[14] The plaintiff reported a three month history of severe low back pain following the incident of December 2005 at work in which he said he had aggravated his low back pain, and the exacerbation was acute and very severe, initially being burning pain in the low back which had settled somewhat with physiotherapy but he remained in significant pain, especially on lumbar flexion. The severe low back pain was said to be constantly present with episodes of excruciating pain, which could be spontaneous in onset but could also occur on sitting and leaning forward. The pain radiated to the mid back and was associated with shooting pains down the right leg, numbness in the lower leg and swelling of the right ankle, but overall the low back pain was worse than the right leg pain, and the back pain was worst at night and was associated with significant morning stiffness. He said there had been no increase in the leg pain as a result of the work incident in December 2005.
23A lumbar spinal scan dated 13 December 2005 revealed significant loss of disc space at L4-5 and L5-S1 with a prominent posterior osteophyte which appeared to impinge both descending S1 nerve roots.
24Dr Gassin prescribed a course of oral prednisolone and paracetamol which brought about what was reported as 50 per cent improvement in the back pain, although the sciatica was still the same. A caudal epidural injection of cortisone was performed on 30 March 2006 but was unhelpful. Right L3, L4, L5 medial branch blocks were performed on 22 June 2006 but were negative, suggesting that the low back pain was not arising from the right lower lumbar facet joints.
25Right sacroiliac joint injections of cortisone, performed by Dr Bruce Mitchell[15] were positive on two occasions, 10 August and 5 October 2006. Dr Gassin reports each of these as being positive in relieving the low back, right buttock and right leg pain for more than two weeks. Dr Mitchell records the second as being the more successful, and recommends that it be repeated if pain recurred without delay so as not to interrupt his rehabilitation.
26Given the positive reaction to those injections, Dr Gassin considered it likely that his symptoms arose from the right sacroiliac joint. When he last saw Mr Morikovski, his condition had not yet stabilised and Dr Gassin did not assess his work capacity. Nor did Dr Mitchell.
27In May 2010, Mr John O’Brien, orthopaedic surgeon conducted a medico-legal examination[16], and considered it appeared most likely that Mr Morikovski has persistent discogenic pain secondary to aggravation of severe lumbar spondylosis. He found the distribution of referred pain to the sole of the foot suggested the main level may well be the L5/S1 motion segment.
28Ms Galpin, counsel for the defendant, was critical of Mr O’Brien’s opinion as he had not been provided with information regarding the prior radiology and prior leg pain. However, on my reading of the history he took, he knew that the 1995 incident was described by the plaintiff as producing “excruciating back pain”, resulting in him being off work for approximately three weeks, and the pain not resolving, with him returning to full duties but continuing to experience constant low back pain which fluctuated in severity. Mr O’Brien know that he regularly underwent some massage therapy and consulted multiple physiotherapists, the most benefit coming from massage therapy, but that it did not resolve what was described as constant low back pain which radiated down towards the right buttock.
29The defendant’s counsel further criticises reliance on Mr O’Brien’s opinion on the basis that his ultimate conclusions do not separate the contribution of the 2005 exacerbation from the overall situation following the 1995 acute episode of back pain.
30Mr O’Brien, however, concludes that the plaintiff does present with moderate disability associated with both shoulder and low back pathology, and considered that he is not capable of undertaking his normal duties. He thought that was well confirmed by the plaintiff’s attempts at employment over the past few years and having struggled with what could be referred to as modified duties such as traffic management, in which particular case the problem related to prolonged standing and the aggravation of back pain. He did not consider him totally incapacitated and believed he could pursue light duties which, as at May 2010, he was undertaking on a limited hour basis. Mr O’Brien thought that he may be able to increase his hours of employment to fulltime, but was sure he would permanently require very light duties.
31A further opinion from Mr John O’Brien in July 2012, albeit not following a further physical examination of the plaintiff, concluded that there was no realistic capacity to perform his pre-injury employment or a fulltime unrestricted manual type occupation, but he did have a realistic capacity to perform suitable light employment with hours noted to be between 10 and 15 hours per week. I would have found the estimate of capacity for those hours more convincing had there not been identical estimates for each of the left and right shoulder injuries, the latter not being consistent with Mr Morikovski’s own assessment of his capacity and the body symptoms which limit him.