Aravena v Victorian WorkCover Authority

[2021] VCC 2010

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-02169

SERGIO ARAVENA	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 and 2 December 2021
DATE OF JUDGMENT:	14 December 2021
CASE MAY BE CITED AS:	Aravena v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 2010

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – pain and suffering – cervical spine injury – shoulder injury

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s335

Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie VSCA 67; Farquhar v Transport Accident Commission [2021] VCC 1596; Sutton v Laminex Group Pty Ltd (2011) VR 100; Randhawa v Transport Accident Commission [2021] VSCA 135; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Transport Accident Commission v Kamel [2011] VSCA 110

Judgment:                  Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R McGarvie QC with Ms V McLeod	Slater & Gordon Ltd Lawyers
For the Defendant	Mr J Valiotis	Thomson Geer

HER HONOUR:

1The plaintiff, Mr Sergio Aravena, is a fifty-one-year-old man. He makes this application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 for a serious injury certificate for pain and suffering damages for injuries he sustained to his cervical spine and shoulder while employed as a forklift driver by Yusen Logistics (Australia) Pty Ltd (“Yusen”). He does not press his application in relation to psychological impairment or for pecuniary loss.

2The defendant says the following issues arise in this case:

(a)   the reliability of the plaintiff’s evidence, in particular about the date of onset of his injury;

(b)   the need to disentangle his claimed injury from other injuries sustained in a car accident and motorcycle accident;

(c)   the aggravation of any injury by his current employment; and

(d)   whether the consequences of the claimed injury are both serious and permanent.

3The legal principles are well known and are not in dispute in this case.  The question is their application to the facts of this case.

4Mr Aravena swore two affidavits, dated 9 September 2020 and 25 November 2021.  He attended for cross-examination.  He otherwise relied on medical reports and expert opinions from a number of practitioners, none of whom were required for cross-examination.

5The defendant relied on the medical opinions of Dr Marcus Navin and Dr Mary Wyatt, neither of whom were required for cross-examination. 

6In addition to the medical reports and opinions, there were medical records tendered.  I have read and considered the medical material and will summarise it only to the extent necessary for these reasons.

Background

7Mr Aravena was born in Chile in 1970 and educated to the age of fourteen.  After leaving school, he worked for a period in a painting business in Argentina, and then returned to Chile at the age of nineteen and worked as a truck driver.  In 1994, at the age of twenty-four, he emigrated to Australia, where he worked variously as a cleaner, labourer, factory assembler and as a “picker and packer” for Coles and Pioneer Electronics.

8In 2010, the defendant, Yusen, took over Pioneer Electronics and Mr Aravena continued to work for Yusen as a storeman.  In this role, he was required to operate a forklift for “prolonged periods of time”.[1]  To drive the forklift, he had to rotate the steering wheel with his left hand and continuously look to his left, twisting his neck, to see where he was loading and unloading stock.  He says that these movements “over a sustained period of time placed strain on my neck”.[2]

[1]Plaintiff’s Court Book (“PCB”) 17

[2]PCB 17

9He says that, although other workers also operated forklifts, he was rostered on the forklift almost continuously from 7.00am to 4.00pm with morning, lunch and afternoon breaks.

10In about 2012, he says he began to experience pain in the left side of his neck.  The pain would come and go, but was often present at work, or after work.  He would come home with a “stiff and painful neck”.[3]

[3]PCB 18

11Over the course of the next few years the pain worsened.  He made no complaints to any doctors at the time of pain in his neck, but says, by about 2014, it had got bad enough that he requested a change of duties at work.  This was accommodated, and in addition to forklift driving, he was also picking and packing in the warehouse.

12Despite the change of duties, his condition progressed and worsened.  By the end of 2016, he describes being in “severe pain”. 

13On 7 December 2016, he was involved in a motor vehicle accident.  He attended his general practitioner, Dr Allan Krawitz, who notes:

“mva [motor vehicle accident] yesterday-got hit from behind

no loc [loss of consciousness] and felt ok at time of accident

…

… neck sprain/strain.”[4] 

[4]Defendant’s Court Book (“DCB”) 102

14He was provided with a medical certificate and had two days off work.

15There were no further medical investigations or attendances in relation to this incident.

16Mr Aravena says he began, over the months preceding the first car accident, to experience other symptoms, such as numbness in his thumb and pain in his left shoulder.  He attended his general practitioner, Dr Milan Katic, on 26 January 2017, who noted left shoulder pain for eight months.  He was referred for a CT scan.  The referral records:

“L) shoulder - PAIN FOR 8 WEEKS.”[5]

[5]DCB 104

17The CT scan showed:

“Severe left lateral neural foraminal narrowing at C5/6 level and moderate left lateral neural foraminal narrowing at C6/7 level.  Possible impingement effect on left existing nerve roots.”[6]

[6]PCB 42

18An MRI scan dated 26 April 2017 showed:

“Degenerative disc, uncovertebral and facet OA [osteoarthritis] in the mid cervical spine, worse at C5/6 where there is left anterolateral cord flattening but no evidence of myelopathy.  Compression of the left C6 nerve in the foramen.”[7]

[7]PCB 44

19He was referred to Mr Michael Knight, neurosurgeon, for neurosurgical opinion in March 2017.  Mr Knight recommended disc replacement surgery and cervical fusion.

20In May 2017, Mr Aravena sought a second opinion from Mr Armin Drnda, neurosurgeon.  Mr Drnda noted that the arm pain had settled with medication and physiotherapy.  He did not recommend surgery, noting that conservative treatment had improved Mr Aravena’s condition, and expressed concern that surgery could worsen the condition of the adjacent spinal segments and accelerate their degeneration, given that they were already problematic.

21Mr Aravena has not pursued surgery, but has managed his condition with physiotherapy and medication.

22A subsequent CT scan on 29 July 2019 and MRI scan on 27 April 2021 have confirmed multilevel degenerative changes in the cervical spine.

23Mr Aravena took a redundancy package from Yusen in March 2020.  He received weekly payment of compensation for thirteen months.  In May 2021, he resumed work on a full-time basis with a new employer.  Despite attempts to find alternative employment, he is again employed as a forklift driver.

Other injuries

24Mr Aravena had a right knee injury in February 2014, when he knocked his knee against the steering wheel of a forklift.  He attended his general practitioner and had a period of rest.  He says the injury has resolved.

25Mr Aravena says he had a back injury in July 2015 when he was lifting boxes at work.  He attended his general practitioner and was referred to Mr Brendan Dax for physiotherapy.  After five sessions of physiotherapy and a short period of rest, he recovered.  In June 2016, he had a brief “flare up” of this injury, which settled after a short period of rest.  He made a full return to work on normal duties and says “the ongoing consequences of this injury do not continue to incapacitate me in any way”.[8]

[8]PCB 17

26In December 2016, he was involved in a car accident when his vehicle was hit from behind.  He says this caused an aggravation of his neck pain, which was significant enough for him to consult his general practitioner and take two days off work.  He says “[o]h, the car accident increased my pain, definitely, yes”.[9]  However, he says, after a few weeks, the increased pain caused by the car accident resolved and after a few weeks, or maybe a month, it “then went back to – where I was in pain, my normal pain I would say”.[10]

[9]Transcript (“T”) 41, Lines (“L”) 27-28

[10]T88, L16-17

27At some point, he was also involved in another motor vehicle accident.  On this occasion, he was driving a Volkswagen Jetta and hit a four-wheel drive from behind.  He says this accident was his fault “because I was very tired”.[11]  He says, after this accident “I probably was sore”[12] as the seatbelt “kind of dig really deeply in your body, entire body hurts”.[13]  However, he sought no medical treatment and sustained no injuries.

[11]T42, L20

[12]T43, L3

[13]T43, L5-6

28Most recently, on an unknown date, he was involved in an accident when the motorcycle he was riding hit a pole.  He said he hit his lower back and went to hospital.  He told the staff at the hospital that he had an existing neck injury.  As a precaution he was put in a neck brace and his neck was x-rayed.  He was kept at the hospital for seven hours for observation and was then sent home with “no major issues”.[14]

[14]T43, L18

29Evidence about these three motor vehicle accidents was volunteered by Mr Aravena during cross-examination.  He was questioned as to why he had mentioned them in his affidavit material.  He said he did not consider they were relevant to his claimed injury, given that none had caused any ongoing or significant injury, or required any treatment.

Defendant’s submissions

30The defendant’s case in opposing the plaintiff’s application relies on three things:

(a)   Firstly, the defendant says causation is in issue.  It says the plaintiff lacks credibility and his evidence should be treated as unreliable.  This extends to the histories he has given to various doctors, and consequently calls into question the reliability of their opinions.  The Court must assess, for itself, the most likely cause of the plaintiff’s injuries, having regard to all the evidence, which includes evidence of competing causes for the plaintiff’s injuries;

(b)   Secondly, the defendant says, even if the Court is satisfied that the plaintiff has a work-related injury, the plaintiff has failed to disentangle that injury from his other injuries caused by the motor vehicle accidents, and the aggravation of his injury caused by his current employment; and

(c)   Thirdly, the defendant says, even if the Court is satisfied that the injuries were caused by the plaintiff’s work, the plaintiff has not satisfied the relevant test, being that the consequences of his injuries are at least “‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[15]  Specifically, the defendant says the plaintiff continues to be employed full time undertaking the same tasks, and continues to engage in a full and active lifestyle, which includes travel and leisure activities about which he is passionate.[16] 

[15]Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833

[16]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [47]; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292

Credibility of the Plaintiff

31A great deal turns on the credibility of the plaintiff in a serious injury application.  As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[17] “the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility”.  This is particularly so in cases where there is no pathological or radiological support for the pain and restriction that a plaintiff claims to suffer.  However, that is not this case.  In this case, there is clear medical evidence that the plaintiff suffers an injury.  The question is the cause and onset of that injury and the extent of the consequences of that injury.

[17](2010) 31 VR 1 at paragraph [12]

32The defendant submits that the plaintiff is not a credible witness, that his explanations are “implausible” and the Court should not accept his evidence.

33However, I formed the view that Mr Aravena was a credible witness.  He gave clear and cogent explanations in evidence and answered questions in an honest and straightforward manner.  He did not attempt to exaggerate his symptoms or downplay his abilities to undertake various activities, and readily conceded that he still travelled, hiked and gained great pleasure from a number of pursuits.

34To the extent that his affidavit material did not disclose various events, I was satisfied with his explanations and did not form the view that he was trying to mislead or deceive the Court.

Medical evidence

35Mr Aravena’s medical records note an attendance on 8 December 2016, a day after a motor vehicle accident.  On that occasion, Mr Aravena complained of neck sprain/strain.  He was given a certificate for two days off work.

36On 26 January 2017, he attended his general practitioner again and was referred for a CT scan.  The referral notes:

“Diagnostic imaging requested: CT scan - cervical spine – L) [left] side neck and shoulder pain 

L) thumb numbness

Diagnostic imaging requested: US - L) shoulder - PAIN FOR 8 WEEKS WORSE ON INTERNAL ROT.

? Rot.Cuff injury.”[18]

[18]DCB 104

37On 31 January 2017, he attended Dr Angus Wong, who noted:

“forklift driver

reports neck/shoulder/back pain

associated with altered sensation, thumb numbness,

numb sensation to base of biceps

sometimes whole lateral forearm

saw doctor on weekend, sent for CT scan …

going to gym helps a bit

no physiotherapy

reports gradually worsening since October - first reported to supervisor then - plans to be moved to alternative position

thinks its work related

he reports he drives a forklift, rotating steering wheel with left hand repetitively, often looking to the left as well, which both worsen the pain

teaches kickboxing

worse with rest, goes away with movement, very occasionally disappears completely

looking to left aggravates, constant aching/pressure

no problems with legs/right arm

thinking of workcover claim - which I think is very reasonable, work seems to have aggravated if not resulted in the injury

reports no neck problems previously

not using painkillers

CT scan shows foraminal neural stenosis C5/6 severe.”[19]

(sic)

[19]DCB 130

38On 27 February 2017, his general practitioner, Dr Chris Pang, referred him to Mr Knight, for neurological assessment.

39Mr Knight saw him on 28 March 2017.  He diagnosed –

“… quite severe neuropathic pain with evidence of C6 nerve root compromise and quite clear-cut C6 radiculopathy in his left upper limb.”[20]  

[20]PCB 52

40He organised an MRI scan and recommended a nerve root decompression with either interbody fusion or disc replacement.

41Mr Aravena sought a second opinion from Mr Drnda on 11 May 2017.  Prior to that consultation, Mr Aravena underwent physiotherapy.  He was also undertaking modified duties at work which had settled the pain somewhat.  Mr Drnda did not recommend surgery, given that the pain in his arm had settled and because of the risk “down the track” to the adjacent segment, which was already degenerated, opining that “if stress on the spine that produced it persists, surgery would induce increased wear and tear in adjacent segment that might be then sooner symptomatic”.[21]

[21]PCB 55

42His physiotherapist, Mr Dax, notes that he had previously treated Mr Aravena for back pain in July 2015.  After referral from Dr Pang, he commenced treating Mr Aravena in February 2017 for his neck problem.  Mr Dax notes that in February 2017, he reported some “four months” of neck and left shoulder pain, which had particularly increased in the weeks prior to his attendance.  After physiotherapy treatment, his neck range of movement increased and he was able to increase his duties at work.

43He was referred to pain specialist, Dr Clayton Thomas, in November 2019, with a note that he had “over two years” of work related-neck pain.  In November 2019, he was also referred to Dr Martin Booth, psychologist, for psychological treatment and was noted to have symptoms consistent with a diagnosis of Adjustment Disorder with Anxiety and Depression.

44Medico-legal assessment by Associate Professor Anthony Buzzard, surgeon, notes that Mr Aravena’s problem started in January 2017, and that he had “developed a slow onset of pain in the neck and numbness in the left arm”.  Associate Professor Buzzard further notes:

“Mr Aravena said that they [the problems] started probably in 2016 though I do note the general practice entry in the documentation that you have sent me dated 30/7/2015 which makes reference to neck trouble radiating to the arms and a CT scan demonstrating neural foraminal encroachment at C5/6 and C6/7.”[22] 

[22]PCB 95

45Associate Professor Buzzard did not consider that there was any injury to the shoulder, but rather that the shoulder symptoms are a consequence of the neck injury. 

46In August 2020, Mr Aravena was referred for assessment to Dr Babak Farr, rehabilitation and pain management physician.  He noted that his work since 2010 had involved driving a forklift while having his neck in rotation.  He recorded a history that –

”Over the years, he started to feel pain in his neck radiating down to his left arm with numbness in his thumb.  About four years ago, this became problematic.”[23] 

[23]PCB 70

47Dr Farr prescribed amitriptyline and Pregabalin, with the possibility of adding Tapentadol for further rapid relief. 

48Further assessment by Dr Farr in April 2021 noted that Mr Aravena’s condition is not helped by “boom-bust type behaviour”[24] and that at times he will be overactive, which will result in days with much more pain, where he is unable to achieve his normal activity levels.  An MRI scan in April 2021 showed deterioration of degenerative changes in the cervical spine.  Dr Farr considered that his condition was probably worse than before.  He prescribed Meloxicam, Pristiq and Gabapentin twice daily.

[24]PCB 74

49In October 2021, Mr Aravena was reviewed for medico-legal purposes by Mr Mohammed Awad, neurosurgeon.  Mr Awad considered that Mr Aravena’s repetitive workplace activities from 2012 have most likely been a significant contributing factor to his ongoing pain and disability.  He diagnosed an aggravation of cervical spondylosis with ongoing arm radiculopathy.  At the time of the assessment, Mr Aravena was working full time as a forklift driver.  However, despite this, Mr Awad said that:

“… Certainly working on a forklift that requires him to have his head rotated to the side is going to extremely aggravate his injury.”[25]

[25]PCB 90

50In May 2021, the defendant sent Mr Aravena for medico-legal assessment to Dr Marcus Navin, occupational medicine physician.  Dr Navin opined that Mr Aravena does not suffer from “any injury”, but is affected by changes to his cervical spine:

“… consistent with the nature of his pursuit of kickboxing and his manual task over many years, rather than his relationship to any specific workplace event or the nature of work.  It is likely that the nature of any employment would have brought to light the extensive changes in his cervical spine noted in 2016/17, which have only mildly progressed over the subsequent years.”[26] 

[26]DCB 67

51In Dr Navin’s opinion, Mr Aravena’s symptoms are not related to his employment and his reported symptoms “are not physiologically or anatomically possible”.[27]  Dr Navin considers that his active participation in kickboxing would have been “the primary cause of any cervical changes and sequential discomfort”.[28]

[27]DCB 67

[28]DCB 68

52On 24 October 2021, Mr Aravena was sent for a further assessment by the defendant to Dr Wyatt, occupational physician.  She diagnosed him with cervical spondylosis, and notes that he reported no neck problems prior to commencing the work in 2010.  His symptoms developed over a period of time and gradually became more troublesome.  She reports that there have been no subsequent injuries.  She notes that he has returned to full-time work as a forklift driver and opines that “the work contribution will be ongoing, noting the nature of his work and the duration of the work undertaken”.[29]  She expressed the view that the symptoms he experienced were “as expected” and there was no evidence of functional overlay or exaggeration in his presentation.  She says that his clinical picture is consistent with the nature of his condition and the “pattern of events”.  She found “no evidence of symptoms that were out of line with the nature of his problem, or observations that could not be medically explained”.[30]  In this, she appears to differ from Dr Navin, who considered that his reported symptoms are not “physiologically or anatomically possible”.[31]

[29]DCB 92

[30]DCB 94

[31]DCB 67

Causation

53The plaintiff says he started experiencing neck and shoulder pain in 2012, by 2014, it was bad enough to request a change in his duties, and by late 2016, his neck pain was constant, and he was experiencing pain in his left shoulder with altered sensation through his left bicep and left hand on a regular basis.  He says, by this point, his pain and disturbed sensation was “becoming worrying”.[32]  Prior to this time, he had considered his pain was caused by his constant turning while driving the forklift, and that it was “part of the job”.[33]  He did not consider going to a doctor about it, as he was not aware that it was anything serious, he thought it was caused by his repetitive movements at work, and was just something he had to put up with.  He says it was not in his nature to complain, that he came from a “really hard background so my life is to be a tough man”.[34]

[32]PCB 18

[33]T32, L4

[34]T29, L19-29

54The defendant points to six attendances by the plaintiff on his general practitioner in 2016 for cough and fever, a pulled thigh muscle, a thickened vein and complaints of loin and back pain.  The defendant says the plaintiff’s evidence that he did not attend for the “severe” pain in his neck and shoulder because of his tough background and his view that pain was “part of the job” was simply implausible, given his attendances on his doctor for less significant symptoms.  The defendant submits that he attended for “trivial ailments” and that his claim that he is stoic is simply not true.

55I do not accept this submission.  I am satisfied that there is a distinction between attending your doctor for ailments which are new, and of unknown origin, and attending for an ongoing condition which you believe you understand.  In this case, Mr Aravena considered that his neck pain was caused by his repetitive movements while using the forklift.  He was not aware that he had a significant underlying injury to his cervical spine and considered that the pain was caused by his job and was something he had to put up with if he wanted to keep his job.  He did ask for a variation in his duties.  Once the pain began to cause other symptoms, such as altered sensation and problems with his shoulder and hand, he became worried and did seek medical attention. 

56I do not consider the fact that Mr Aravena put up with neck pain, but sought medical attention for other matters, to be implausible in light of Mr Aravena’s explanation and circumstances. 

57The defendant submits that a more likely cause of Mr Aravena’s condition is the motor vehicle accident in 2016 which precipitated an attendance on his general practitioner on 8 December 2016.  On that occasion, he complained of a neck sprain or strain. 

58The defendant says the reference in his medical records on 26 January 2017 to “PAIN FOR 8 WEEKS” accords with the car accident being the cause of his pain.  The first mention of a neck or shoulder injury arises in the context of a recent car accident and the defendant submits that this is the more compelling cause of the plaintiff’s pain.  However, that same medical record also notes a report of pain for “eight months”.  The medical records are unclear.

59Further, the various dates of the onset of symptoms recorded in the histories provided to doctors, are consistent with an injury that did not arise from a single event or incident.  It is understandable that the “date of injury” might be recorded as the date when his claim was lodged.  He dated the onset of his symptoms to the time when he began to be worried about the extension of those symptoms into his arm and left hand.  I do not think that this necessarily means that he was pain free before that date.

60The plaintiff agreed in oral evidence that his pain was worse after the car accident, however, said that this worsening of the pain was transitory and that after a month or so, to the best of his recollection, his pain returned to the pre-accident level.  That is, he continued to feel the pain he experienced before the car accident, but it had progressed to involve his thumb and shoulder in a way he considered worrying.

61The defendant submits that the only evidence in support of the plaintiff’s case is the plaintiff’s own evidence, and that his claim rests entirely on his credibility as a witness. The defendant says his evidence is not supported by the contemporaneous medical material, which not only does not record complaints of neck pain prior to December 2016, but notes an absence of neck problems prior to that time.

62Having carefully reviewed the medical reports and heard the plaintiff’s evidence, I do not accept the defendant’s submission.  The plaintiff impressed as a candid, straightforward and honest witness.  While there may be some inconsistency as to when his symptoms first arose, I accept his evidence that he was experiencing pain for a significant period prior to 2016, that pain increased slowly over time, he accepted this as something he had to put up with, but became concerned when his symptoms changed and he developed signs of radiculopathy, which prompted him to seek medical investigation for the first time.

63This is also consistent with the pathology, which, in 2017, showed severe degenerative changes in the cervical spine.  All the experts, including Dr Navin, consider that the degenerative changes are likely to have developed over time.  All the experts, except Dr Navin, consider that the injury is consistent with the sort of work he was doing as a forklift driver.  No one has expressed the opinion that his injuries were likely to be caused by a single incident, such as a motor vehicle accident.  Given Mr Aravena’s evidence about the mild nature of the motor vehicle accident, that it required no medical treatment or investigations, and that the acute pain arising from it resolved within a short a number of weeks, I am satisfied, on the balance of probabilities, that this car accident was not the likely cause of his injuries.

64The other car accidents postdate the onset of his symptoms and there is no medical evidence that they caused anything more than a transitory aggravation of his pre-existing symptoms. 

65Dr Navin, alone, opines that the more likely cause of Mr Aravena’s injuries is his history of kickboxing from an early age.  He expresses the view that Mr Aravena could simply not have developed the symptoms he has from his work.  However, all the other medical treaters and experts have taken a different view, including his treating neurosurgeons, Mr Knight and Mr Drnda.  The weight of medical opinion favours the view that his injuries are likely to have been caused or significantly contributed to by his employment.

Disentanglement

66The defendant submits that the plaintiff has failed to disentangle his claimed injury from the three motor vehicle accidents and his subsequent work.[35]

[35]Peak Engineering & Anor v McKenzie [2014] VSCA 67; Farquhar v Transport Accident Commission [2021] VCC 1596

67As set out above, there is no evidence that any of the three accidents caused anything more than transitory pain.  I therefore do not accept that there is any requirement to disentangle the claimed injury from the effects of the motor vehicle accidents.  While Mr Aravena was criticised for failing to include the three motor accidents in his affidavit material, I accept his explanation that he did not consider them relevant to this claim, as they did not cause his neck injury. 

68For the past six to seven months, Mr Aravena has been working full time as a forklift driver after a period of thirteen months out of the workforce.

69He explained that, though he tried to find other work, he was only able to get employment as a forklift driver.  He was rejected for one job after disclosing his pre-existing injury, and his current employer is not aware of his neck condition.  He was frank about this in his evidence, noting that –

“In my situation you have to do things that have to be done.  I’ve got a mortgage.  I’ve got family.  I needed to.  I wasn’t robbing anyone, I am just providing work for myself.”[36]  

[36]T20, L19-22

70He admits that it was –

“… wrong to do it but they didn’t ask, I didn’t provide any answers.  I investigated before and I understood that I could do that if they were never asking me.”[37]

[37]T20, L1-3

71He agreed with defendant’s counsel that his pain since returning to work is significantly worse.  He says he feels “[v]ery sore, very tired during the day as well”;[38] however, he does not “want to lose the job so I get by with what I’m doing”.[39]  While it is necessary, for the purposes of this application, to assess his condition as at the date of the hearing, it is also necessary to assess only those symptoms that arise from the claimed condition and not include the aggravation caused by his current employment.  While the current work that he undertakes increases the pain that he experiences, this is not the same as an aggravation of the underlying condition.  An MRI scan in April 2021 showed deterioration of the cervical spine.  This MRI predates his employment, and the deterioration therefore is not attributable to that employment.

[38]T21, L26-27

[39]T21, L29-30

72It is clear from the material that the work he is currently doing is not ideal as far as his injuries go.  Dr Farr expresses the view that he will not be likely to continue in this sort of work, and if he was to lose this job, he would not be suitable for employment of a similar type.

73Mr Aravena’s evidence is that the work he currently does is not as aggravating to his injuries as the work at Yusen on the forklift, though it is more demanding than the work he was doing by the end of his time at Yusen.  Whether Mr Aravena is able to continue his employment or suffer a significant aggravation of his injury as a result of that employment will only be clear with time.  He has developed the onset of a new pain between his shoulder blades, which has not, to my knowledge, been the subject of any medical investigation.  Whether this is a consequence of the underlying injury, an aggravation of that injury, or a new injury, is not yet known.

74The defendant submits that this is an impossible entangling of his condition, which also raises a question about the stability of his condition.  While his condition may not be stable, there is no suggestion that his condition is going to materially improve, indeed the evidence is that, if anything, it is likely to worsen.  I do not consider the stability of his injury to be an impediment to assessing this application.

75Given the volume of material, including affidavit material that predates the current employment, I consider it is possible to assess his application.  The increase in pain caused by an increase in activity is not, in my view, the same as an aggravation of the injury but rather, is an expected consequence of the existing injury.  His evidence and the medical material can be assessed without regard to the new pain he is experiencing between his shoulders which may arise from another injury.  These is nothing in the material to suggest that it is this pain, as distinct from his other pain, that is causing the consequences upon which he relies in this application.

Consequences for the Plaintiff

76Prior to his current employment, Mr Aravena says he had ongoing neck pain, discomfort and altered sensation, with referred pain into his left shoulder, arm and hand.

77His hands and fingers would often become stiff, with feelings of pins and needles.

78Movement assisted him to relieve his discomfort.  If he held a sustained position, the neck pain would increase and he would experience altered sensation down his left side.  He avoided sitting in one position for sustained periods of time, which means long drives must be frequently broken up for rests.  He lost mobility in his neck and has reduced strength and mobility in his left arm and hand, his dominant side.  Carrying heavy items is “sometimes a struggle”, as is reaching above shoulder height.

79He has always been an active person and maintained a degree of activity, but was unable to return to running and swimming, and avoids weightlifting.

80He used to do most of the gardening and home maintenance, but now struggles, and cannot assist with household chores to the same extent as before his injury.

81Since recommencing work in May 2021, he feels that the neck pain is much worse compared to when he was not working, and lately the pain has consistently been at a 7-9 out of 10 level.  His pain is higher at the end of a working day than on the weekend.

82He notes that the forklift he now operates is modern, with an electronic steering wheel, and is easier to drive than the forklift he operated at Yusen.

83Both before and after his current employment, his sleep was affected by his pain.  He now takes Melatonin at night, which helps him get back to sleep when he wakes.  He says he wakes multiple times every night and that he is tired during the day as a result.

84He also takes Pristiq, 100 milligrams; and Mobic, 15 milligrams, every day, and supplements these with Norgesic, 35 milligrams, and Celebrex, 100 milligrams, about three times a week for breakthrough pain.  He has been prescribed Nexium for his stomach due to the likely impact of these medications on his gastrointestinal system, but has not yet commenced this.  He has ongoing physiotherapy and consults with Dr Farr by Telehealth approximately every two months.

85Mr Aravena readily accepted that, despite his injuries, he has been able to travel, including to Thailand on two occasions and to South America on two occasions.  On one trip to South America to see his mother, he also hiked in Patagonia, and on another he went to Machu Picchu.  He described these as a “one in a life opportunity”.[40]  He explained that he had not mentioned these activities in his affidavit material as he did not consider them relevant.  He was able to work fulltime, albeit with pain, and did not see that hiking, albeit with pain, was any different.  He explained it this way: 

“I didn’t think it was an issue.  I’ve been working all this time.  We were working full hours, normal hours.  I never stopped working.  So I don’t see any difference of going to work or going for a holiday that I definitely deserve it and I wanted it, to places that I wanted to see.”[41]

[40]T70, L25

[41]T70, L4-9

86Mr Aravena had also tried to stay involved in kickboxing, a long-time passion of his.  He had not competed for many years prior due to his injury, but had continued with coaching.  This had been impacted by the COVID-19 pandemic.

87More recently, Mr Aravena has become interested in motorcycles.  Three years ago, he obtained his motorcycle licence and bought an old motorcycle, which he has rebuilt at home.  He and his partner have joined a club and go for rides from Cranbourne to Olinda, a 30 to 40-minute ride one way.  He says he loves his bike and that rebuilding his bike was “my free-time mind I don’t know how to call it, distraction, mind distraction for my - as a hobby”.[42]  I take from this that he has found that having a hobby and something to distract his mind has been positive for his mental health.

[42]T84, L31 ꟷ T85, L1

88It was put to him that he was stiff and sore at the end of the working day and had to spend the weekend recovering.  He said:

“Most of the time if I got something interesting to do, I rather take the opportunity and do it, yes.

…

When I can yeah, if the weather permits, if my back and my shoulder and my neck permit it … .”[43]

[43]T85, L23-28

he would go for a bike ride.  It was put to him that he gets “plenty of enjoyment out of that”.[44]  He said “[d]efinitely, yes otherwise I will not do it, I will not sacrifice the issues that I have after that for nothing, yeah”.[45]

[44]T86, L3

[45]T86, L3-5

89I take it from this, that Mr Aravena considers the joy and pleasure he gets from his activities, including riding his motorcycle and occasionally travelling and hiking, are worth the pain he suffers as a consequence.  I do not this means he undertakes those activities with no consequences.

90He impressed as a person who, despite his significant injury as demonstrated by the radiological findings, is determined to live a meaningful and enjoyable life.  He said:

“During travelling I was in pain, of course, I was but when you are enjoying life then life start becoming, changing very easily and very quickly and can become very short as well, you take what you can.  I think it was a good opportunity in a place - a beautiful place.”[46] 

He went on:

”I’m enjoying life.  Definitely, I was enjoying life.  A beautiful place to open up your mind and see”.[47]

[46]T70, L13-18

[47]T70, L23-25

91The defendant submits that his ability to work full time on unrestricted duties, ride his motorcycle with enjoyment, trek in Patagonia and walk through Machu Picchu, go-kart with his family, maintain his interest in and coaching of kickboxing until the pandemic, assemble and repair his motorcycle, walk his dog, vacuum his car and do household chores, all tell against a finding that he meets the relevant test.

92The defendant submits that the plaintiff is in fact living a normal life and that there is no evidence that he has lost anything, much less that his consequences meet the statutory threshold.

93I do not accept that submission.

94The pain consequences of an injury can affect a broad range of activities, including the plaintiff’s sleep, recreational activities, social activities, mobility, and enjoyment of life.[48]  While pain consequences can be considered individually, the combined impact of those consequences must also be considered.[49]

[48]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [16] per Maxwell P.  See also Sutton v Laminex Group Pty Ltd (2011) 31 VR 100

[49]Randhawa v Transport Accident Commission [2021] VSCA 135 at paragraph [72]; Sutton v Laminex Group Pty Ltd (supra) at paragraphs [112]-[114]

95Mr Aravena lives with constant pain and restriction, which necessitates daily prescription medication.  His sleep is interrupted multiple times every night.  He puts up with his pain in order to pursue activities which bring him joy, including travel and motorcycle riding.  He puts up with pain in order to work to pay his mortgage, meet his financial obligations and to provide for his family.

96I do not consider the test requires that an applicant for a serious injury certificate lead a miserable, joyless life.  When reviewing the objective evidence concerning the disabling effects of pain, the Court must consider whether the plaintiff is stoic.  The injury suffered by a stoical plaintiff is not to be viewed as any the less serious merely because he manages to remain more active than might have been expected given the level of pain.[50]

[50]Haden Engineering Pty Ltd v McKinnon (supra); Sutton v Laminex Group Pty Ltd (supra) at paragraph [83]; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 at paragraph [70]; Transport Accident Commission v Kamel [2011] VSCA 110 at paragraph [67]

97Having heard Mr Aravena’s evidence, I am satisfied that, even though he continues to engage in activities, they are at a significantly reduced level and undertaken with modifications, and with the knowledge they will cause pain.  He is not leading the life that he would otherwise be leading as a fit and active fifty-one-year-old.

98Having regard to what he has lost and what he has retained, I am satisfied that the consequences for Mr Aravena are “more than significant or marked” and are “at least very considerable”.

99Accordingly, the plaintiff will be granted leave to commence a common law proceeding for pain and suffering damages.

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