IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
SERIOUS INJURY EXPEDITED LIST		

Case No. CI-20-01145

DAVID OWEN MORGAN	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HIS HONOUR JUDGE O'NEILL	
WHERE HELD:	Melbourne	
DATE OF HEARING:	11 May 2020	
DATE OF JUDGMENT:	14 May 2020	
CASE MAY BE CITED AS:	Morgan v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2020] VCC 596		

REASONS FOR JUDGMENT
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Subject:		ACCIDENT COMPENSATION
Catchwords: 	Serious injury application – injury to lower spine in the course of heavy construction work – pain and suffering only – whether consequences “very considerable”
Legislation Cited:	Accident Compensation Act 1985, s134AB
Judgment:	Leave granted in respect to pain and suffering damages.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr M Clarke	Robinson Gill	
			
For the Defendant	Ms D Manova	Hall & Wilcox	

HIS HONOUR:

Preliminary
1	Mr Morgan commenced work with Meridian Concrete Victoria Pty Ltd  in 2007 as a labourer.  The work involved manual handling and was heavy and demanding.  By 2013, he had worked his way up to foreman.
2	In March 2017, he developed pain in his lower back.  He had some chiropractic and physiotherapy treatment and was sent by his general practitioner to two neurosurgeons, Associate Professor Graeme Brazenor and Mr Greg Malham, both of whom recommended surgery to the degenerate L5-S1 disc.
3	With careful management, an exercise regime involving increasing core strength and chiropractic treatment, he has been able to avoid surgery.  Orthopaedic surgeons who have examined him more recently have advised against surgery.
4	He went on to other employment as a supervisor or foreman, and in fact has had no time off as a result of the lower back injury.  He takes occasional anti-inflammatory medication.
5	He claims to suffer ongoing low-level pain and restriction in the lower spine and he has been unable to resume work “on the tools” since the injury.  He says a range of domestic activities are restricted, in particular those which involve his young children.
Application
6	This is a “serious injury” application.  Leave is sought in respect of pain and suffering only.  The body function said to be lost or impaired is the lower spine.
7	There is only one issue to be determined in this application.  That is, whether the consequences of Mr Morgan’s lower back injury achieve the “very considerable” level.
8	The matter was heard on 11 May 2020.  At the conclusion of the application, I gave judgment in favour of the plaintiff and granted leave to bring common law proceedings.  These are the reasons.
Do the consequences of the lower back injury achieve the “very considerable” level?
9	In March 2017, Mr Morgan developed lower back pain.  There is no issue the heavy work he was undertaking was a significant contributing factor.  He had some physiotherapy and chiropractic treatment for a period.  He had no time off work.  
10	An MRI scan of June 2017 showed disc degeneration at the L5-S1 disc with a broad-based disc protrusion extending into the left foramen with mild foraminal narrowing.
11	That month, his general practitioner referred Mr Morgan to Associate Professor Brazenor.  That practitioner described the disc at L5-S1 as “chronically deflated” and “worn out”.  Associate Professor Brazenor offered him the alternative of lumbar surgery, or a conservative approach.  He suggested Mr Morgan follow four “rules”.  He referred him to another neurosurgeon, Mr Malham.
12	Mr Malham considered the best option to be an L5-S1 anterior lumbar interbody fusion.  After discussion, Mr Morgan decided upon a conservative approach and to pursue a course of exercises to build and strengthen his core.
13	In late 2017, Mr Morgan continued with chiropractic treatment and undertook Keiser physiotherapy, a treatment with the use of machines to build strength.
14	In February 2018, he underwent a CT-guided nerve root injection which reduced the pain level in his lower back.
15	He continued to experience lower back pain and referred pain into his left buttock.  In 2018, he was referred to orthopaedic surgeons for further opinion.  He saw Mr Gerald Quan in August 2018.  Mr Morgan told that practitioner that the nerve-root injection improved his back pain “profoundly”.  Mr Quan thought the disc protrusion and the disc-space collapse could be irritating the left L5 nerve root, which would explain the left buttock pain.  Mr Quan noted the regular supervised chiropractic treatment and Keiser physiotherapy was helping Mr Morgan’s pain.  He said there was the possibility of future deterioration as part of the natural ageing process but recommended against surgical intervention.  He said Mr Morgan could continue to perform his supervisory work, providing the it remained sedentary.
16	He saw Mr David de la Harpe in September 2018.  He described the degeneration at the L5-S1 disc as “quite significant”.  He suggested a non-surgical approach.  He thought Mr Morgan’s condition would deteriorate if he returned to heavy manual work and thought the degenerative process would be ongoing.  He thought that if the rate of degeneration increased, Mr Morgan may require surgical intervention. 
17	A report from Dr Andrew Kam, chiropractor, noted a long course of treatment from May 2017.  
18	In a report from Mr Paul D’Urso, neurosurgeon, of January 2020, he said Mr Morgan’s degenerative lower spine could progress with further degeneration, although said he was managing his condition well.  He said if the symptoms were to persist or worsen, surgical fusion at L5-S1 would be an option.  He said Mr Morgan did not have the capacity for unrestricted manual labour and that this would be permanent.  He advised against repetitive bending, twisting and lifting of weights of more than 15 kilograms.  He noted Mr Morgan no longer played golf.
19	A Medical Panel provided an opinion and reasons in August 2019.  The opinion was directed to an impairment assessment under the AMA Guides and is of limited assistance in this application.
20	Mr Vasudeva Pai, orthopaedic surgeon, provided a report of January 2019.  Mr Pai noted that since the injury, Mr Morgan had changed his work pattern and duties to suit his back injury.  He further noted he was active at home and his sleep was not disturbed.  He did not suggest any specific treatment and said it was important Mr Morgan keep fit.  He said there had been substantial resolution of the back symptoms since the injury and the prognosis was good.
21	Mr Morgan was examined by Dr Timothy Wood, sports physician, in April 2018.  He obtained a history of back pain at 2 to 3 out of 10.  Before the cortisone injection it had been 6 out of 10.  Dr Wood diagnosed chronic lower back pain related to the pathology at L5-S1.  He recommended against surgery.  He noted Mr Morgan functioned “very well”, even with constant lower back pain.  He recommended a dedicated strengthening program with chiropractic and Keiser therapy.
22	In May 2019, Mr Morgan left employment with Meridian and has had a number of supervisory jobs in the construction industry to the present time.  He currently works around fifty hours per week on a permanent basis as a supervisor on the Western Ring Road Upgrade Project.  The work as a foreman is not as strenuous as a labourer and involves walking around the site ensuring it is progressing satisfactorily.  In cross-examination, he admitted that, absent the back injury, he would have progressed to and remained as a foreman, or in a supervisory capacity, in any event.  He said, however, that he missed being “on the tools” and enjoyed the satisfaction gained from physical work.
23	Mr Morgan says he is no longer able to play golf as before.  He has attempted it on a few occasions but plays only infrequently.  He previously enjoyed a handicap of twelve.  He says that with a young family, it was likely he would have reduced his golf involvement to some extent. 
24	At the present time, he suffers pain in his lower back at between 3 to 5 out of 10.  It has increased lately as he has not had the time to undertake his exercise regime.  It is more difficult for him to engage with his young children.  He has to be careful how he picks them up when bathing them or lifting them from a change table.  He can assist with most of the domestic duties.  He takes occasional Celebrex, although has had few prescriptions over the years.
Submissions on behalf of the Defendant
25	Ms Manova submitted the consequences to the plaintiff from his lower back injury did not meet the statutory test.  She said:
•	At the present time, Mr Morgan was receiving only limited treatment, with some chiropractic treatment, home exercises and occasional Celebrex.
•	The steroid injection in 2018 significantly reduced his pain down to a moderate level.
•	He can undertake all of his work duties, working fifty hours or more a week in a supervisory role, which he would have been doing in any event, absent the back injury.
•	There is no longer any place for surgery.
•	He can undertake most of his activities of daily living and engagement with his children,  with some difficulty lifting them.
•	Many medical opinions point to a good prognosis, providing he continues to manage his back, as he has done.
Conclusion
26	Mr Morgan was a completely honest and open witness.  There were no credit issues put to him.  I accept his evidence as to the consequences of his lower back injury. I assess him as a stoic individual, not in any way inflating the consequences of a significant back injury.
27	I accept that there is no present recommendation from any specialist for the earlier proposed lower back surgery.
28	I am satisfied the consequences to Mr Morgan achieve the “very considerable” level.  I say that for the following reasons:
•	Mr Morgan is a relatively young man who has spent his working life in the construction industry.  His lower back injury has left him with a significantly degenerate lower lumbar disc.  He suffers ongoing moderate lower back pain on a scale of 3 to 5 out of 10.  To his credit, and with appropriate exercise and other treatment, he has been able to maintain his back and continue working on a full-time basis.  
•	His treatment involves going to the gym on a regular basis for a strengthening regime, chiropractic treatment several times a week and home exercises.  It is likely he will have to continue this regime for the foreseeable future.
•	The L5-S1 disc is degenerate and there is the risk it will degenerate further with the prospect of surgery.
•	He has lost the ability to work in an unrestricted manner “on the tools” and has lost the satisfaction that provided.
•	He is restricted in his enjoyment of golf and in his ability to engage fully with his young family.
29	I shall grant leave to bring proceedings and make consequent orders.
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