Beauchamp v Victorian WorkCover Authority
[2014] VCC 471
•16 April 2014
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-06182
| EDWARD BEAUCHAMP | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 9 and 10 April 2014 | |
DATE OF JUDGMENT: | 16 April 2014 | |
CASE MAY BE CITED AS: | Beauchamp v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 471 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to plaintiff’s low back – whether pain and suffering consequences are “serious” – credit of the plaintiff
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(c)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Petkovski v Galletti [1994] 1 VR 436
Judgment: The Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N R Bird with Mr I R Fehring | Stringer Clark |
| For the Defendant | Mr P D Elliott QC with Mr J L Batten | Lander & Rogers |
HIS HONOUR:
Introduction
1 This proceeding is an application brought by Originating Motion dated 14 December 2012 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of and in the course of his employment with a labour-hire company, Superior Staff Pty Ltd (“the employer”).
2 The Originating Motion initially sought leave to bring proceedings for pain and suffering damages and loss of earning capacity damages. In the course of his opening, Mr Bird, on behalf of the plaintiff, abandoned the application for serious injury certificate for loss of earning capacity.[1] The application proceeded on the basis that the plaintiff was seeking a serious injury certificate for pain and suffering damages.
[1]Transcript (“T”) 11
3 The injury suffered by the plaintiff for which he seeks leave to bring proceedings for damages is an injury to his lower back which occurred in the course of his employment on or about 11 February 2010.
4 The following evidence was adduced during the hearing:
·The plaintiff gave evidence and was cross-examined.
·Exhibit A was the Plaintiff’s Court Book (“PCB”) pages 2 – 97.
·Exhibit 1 was the Defendant’s Court Book (“DCB”) pages 5 – 74.
·Exhibit 2 is a letter from the plaintiff to Mr Paul Kierce dated 25 August 2010.
·Exhibit 3 was the medical reports of Dr Murray Grave to Dr Selby King between 5 August 2013 and 31 December 2013.
·Exhibit 4 was two surveillance DVDs covering the dates of 19 July 2010, 31 May 2013 and 4 June 2013.
5 This application is brought under the definition of “serious injury” contained in ss37(a) of the Act, which requires a plaintiff to prove that he has suffered “permanent serious impairment or loss of a body function”. The loss of body function in this case is the plaintiff’s lower back.
6 Mr Elliott QC, on behalf of the defendant, identified the issues in this application as to whether or not the consequences of the injury to the plaintiff satisfied the statutory test for “serious injury”. In short, this was a range case. The other issue in this case was the plaintiff’s credit.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.[2]
[2]Section 134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[3]
[3]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
10 The plaintiff was born in May 1968. He is now forty-five years old. The plaintiff is a married man who has two children from this marriage, aged six and five years old. The plaintiff also has a twenty-one-year old child from a previous relationship, who lives independently from him.[4]
[4]PCB 2
11 The plaintiff was educated to Year 10 level. He has subsequently obtained the qualifications of a Certificate in Small Business Management in 1997 and Introduction to Computer and the Internet, which he completed in 2006.[5]
[5]Transcript (“T”) 45
12 The plaintiff has a work history where he has been employed in packing sheds, supermarkets and as a storeman. The plaintiff has also worked as a maintenance man.[6] In his evidence, the plaintiff stated that he conducted a business for approximately one year, known as Beauchamp’s Gutter and Downpipe Cleaning. That business was conducted by the plaintiff and his former wife in the years 1999 to 2000.[7] The plaintiff has generally worked in maintenance-related employment.
[6]PCB 3
[7]T23 and 24
Injury with the Employer
13 The plaintiff commenced with Superior Staff Pty Ltd on 2 September 2008. This employment was with a labour-hire firm. He was, in the course of his employment, required to attend at Montague Cold Storage situated at the Great Ocean Road, Allansford. His job was to be a casual factory hand.
14 The plaintiff described his work as heavy and repetitive. He stated that the employment involved him in unloading 25-kilogram boxes of butter and lifting them from a pallet and placing them onto a bench for de-boxing.[8]
[8]PCB 4
15 The plaintiff described his injury as occurring in the following circumstances:
“On or about the 11th February 2010 at around 11.15am, in the course of this work and in particular whilst lifting a 25 kg box of butter, I felt a sharp stabbing pain in the low back.
This time the pain was more severe than any back pain that I had had in the past. I stopped and rested for a while. I had about 3 hours of my shift to go. I continued working but at a very slow pace. I told the forklift driver, Barry Earls, that I had hurt my back.”[9]
[9]PCB 4
16 The plaintiff returned to work the following day, which was a Friday, and rested over the weekend. The plaintiff completed an incident report about the injury.[10]
[10]PCB 5
17 The plaintiff attended his general practitioner, Dr Selby King, and received some physiotherapy treatment. He was certified fit to return to work on light duties in June 2010. In a Work Able Consulting report dated 22 July 2010, the plaintiff had successfully completed a return to work program of four hours a day for three days a week. At that stage, a further return to work plan was to work 7.5 hours per day, two days a week.[11] The plaintiff’s evidence was that he ceased employment because he was not provided with any light duties by Montague Cold Storage. At that time, although the plaintiff was certified fit for alternative duties, he did not seek alternative employment to Montague Cold Storage or with Superior Staff Pty Ltd.
[11]DCB 67
Medical treatment
18 The plaintiff initially consulted Dr Selby King on 19 February 2010 for the symptoms and injury to his lower back. He was prescribed Panadeine Forte tablets and Voltaren tablets to assist him with the symptoms. The plaintiff was also referred to Mr Anthony Grace, physiotherapist, for treatment. The plaintiff continued to consult with Dr Selby King and received treatment from the physiotherapist at Jamieson Street Clinic until May of 2010, when the plaintiff was certified fit for light duties.[12]
[12]DCB 42 – 44
19 The plaintiff was treated at the Warrnambool Physiotherapy Centre. The last time he was treated by that physiotherapy clinic was on 14 July 2011.[13]
[13]PCB 25
20 The plaintiff then attended South West Health Care on the recommendation of Dr Wang.[14] The plaintiff attended hydrotherapy and general exercise classes up until 10 February 2012.[15]
[14]PCB 34
[15]PCB 34
21 The plaintiff was referred to see Dr Murray Grave, a musculoskeletal physician, in June of 2013. The plaintiff’s initial treatment by Dr Grave was spinal injections to remove the swelling from his back. The plaintiff’s evidence was:
“I was told by Murray Grave that it was a new treatment, from New Zealand I believe. I had over a course of about nine different injections over a period of months, and it gradually reduced the amount of swelling. The injections have helped but it hasn't completely taken away the pain, it has reduced it but it hasn't taken it away.”[16]
[16]T13-14
22 The plaintiff’s last treatment by Dr Grave was last week.[17]
[17]T14
23 The plaintiff’s current regime of treatment includes hydrotherapy every two weeks. This hydrotherapy has been continuing since September of 2013.
24 In addition to the physical treatments by the medical practitioner, the plaintiff is prescribed medications of Allegron for his depression, Panadol Osteo for pain relief and Celebrex for anti-inflammatory treatment.
Medical opinions
25 The following medical opinions were tendered in support of the plaintiff’s application for serious injury.
(a) Dr Selby King, general practitioner
26 Dr Selby King is the plaintiff’s general practitioner. Dr King prepared four reports, dated 26 July 2010, 28 November 2011, 10 July 2013 and 5 March 2014. Dr Selby King referred the plaintiff to Dr Murray Grave, musculoskeletal physician, in June of 2013.
27 In his most recent report, Dr King stated as follows:
“I last saw Edward on Monday, 10th February 2014. He stated he had been having injections in his back with Dr Murray Grave and felt that these had helped, he was also doing exercises and hydrotherapy, he was taking Celebrex an anti inflammatory medication and Panadol Osteo for the pain. He stated that he was still getting daily pain but his symptoms had improved since he had seen Dr Grave.
…
Edward may be able to partake in some form of employment in the future, this would have to be in the form of a non-manual job which he could take regular breaks when his back causes his some discomfort.
…
It is also uncertain whether he would be able to partake full time employment and may only be able to take part time employment depending on the type of job it was.”[18]
[18]PCB 33
28 Dr King’s opinion was that this condition is permanent for the plaintiff.
(b) Bore Hoekstra, physiotherapist
29 Bore Hoekstra prepared a report dated 26 March 2013. This report listed the number of treatments the plaintiff had received in general exercise classes and physiotherapy treatment in the form of stretching exercises for various muscle groups. This report states that the plaintiff attended between 20 September 2011 and 10 February 2012. The physiotherapist did not offer any opinion as to the plaintiff’s ongoing condition or current work capacity.
(c) Dr Murray Grave, musculoskeletal physician
30 Dr Murray Grave prepared one report, dated 5 August 2013. The defendant tendered a number of reports from Dr Murray Grave to Dr Selby King between 24 June 2013 and 31 December 2013. These reports were exhibit 3. The reports from Dr Grave to Dr Selby King set out the treatment and progress of the plaintiff under that treatment.
31 Dr Murray Grave’s report dated 5 August 2013 was the only medical report from the treating physician in the Plaintiff’s Court Book. Dr Grave reported as follows:
“1The diagnosis is that of chronic lumbosacral back pain with multilevel disc degenerative changes and disc protrusions from L3/4 to L5/S1 levels.
…
3As a consequence of his physical injury and impairment Edward Beauchamp does not currently have the capacity to perform suitable employment or retrain for suitable employment. He does however require in my view the opportunity to go through a pain management programme so that he can be able to then address the issue of suitable employment. I consider his incapacity is not permanent at this point but will depend on his response to pain management.
…
5Future treatment includes rationalisation of his drug management, as well the introduction of core strength training, hydrotherapy and also the possibility of giving him a therapeutic trial of treatment of injection therapies. I also consider that should he not make satisfactory progress then it will be essential that he be included in a pain management programme such as that run at North Eastern Rehabilitation Centre in Melbourne.
…
6Prognosis is that he will have ongoing restrictions as a result of his back injury. The outcome from treatment will depend heavily on compliance with treatment and response to pain management strategies.”[19]
[19]PCB 39
32 Dr Grave, in his report to Dr Selby King dated 13 November 2013, noted that the plaintiff’s average pain over the last week was only 2 out of 10. Dr Grave described this as a significant improvement from his initial score of 4 to 5 out of 10. Dr Grave noted that the plaintiff had returned to intimacy with his wife.[20]
[20]Exhibit 3
33 The final report from Dr Grave to Dr Selby King is dated 31 December 2013. Dr Grave reports that the plaintiff said that his pain is now averaging 2 out of 10. He also noted the plaintiff said that his libido and enjoyment of his love life have improved. Dr Grave noted that the plaintiff was working a few hours a week at the fish shop. Dr Grave described the treatment of perineural injection therapy using Lignocaine based prolotherapy solution.[21]
[21]Exhibit 3
34 The plaintiff, in his most recent affidavit dated 17 February 2014, confirms Dr Grave’s opinion, stating that the plaintiff is now coping better with the pain and restrictions as a result of the injections administered by Dr Grave.[22]
[22]PCB 22
(d) Mr John O’Brien, orthopaedic surgeon
35 Mr O’Brien prepared four reports in respect of this application. Mr O’Brien saw the plaintiff for medico-legal reporting purposes. The four reports prepared by Mr O’Brien are dated 16 December 2011, 20 June 2012, 28 November 2012 and 10 September 2013.
36 In his report dated 28 November 2012, Mr O’Brien states that:
“The patient continues to describe moderate disability associated with chronic back pain, which is clearly reported as aggravated by mechanical factors. As a result of this, the patient would physically now be quite incapable of returning to his pre-injury occupation or indeed any significant manual duties undertaken on a full time basis
…
He may continue with his current two hours of employment per week, which are clearly self paced and I would think it is unlikely the patient could cope with even light duties on a more extensive part time basis. Indeed I would consider that from the physical perspective it is unlikely this patient could sustain any employment that could provide a sustainable income for his family. Clearly this patient is restricted in his general, social, domestic and recreational activities and I would consider it is likely this is permanent situation.”[23]
[23]PCB 48 and 49
37 I note for the record that both of these pages of the medical report by Mr O’Brien carried the date of 8 April 2013. These pages, however, were said to be part of the report dated 28 November 2012 and placed in the Plaintiff’s Court Book, pages 48-49.
38 In his report dated 10 September 2013, Mr O’Brien referred to his report of 8 April 2013. In that report, he stated that he had observed the surveillance video of the plaintiff. He then stated:
“Initial impression would be to suggest that some variation of the range of movement of the lumbar spine however this cannot really be confirmed as it is difficult to compare the documented range of movement of the lumbar spine in more than a three year interval.” [24]
[24]PCB 51
39 Mr O’Brien then went on to say that the relatively short period of surveillance footage did not alter his opinion.
40 I note that Mr O’Brien did not state which video surveillance he was shown. At the time of his reporting on 10 September 2013, both sets of video that were shown in this application dated 19 July 2010 and May and June of 2013, had been taken. Mr O’Brien did not nominate the movements made by the plaintiff that he had observed on the video surveillance film and I am unable to be satisfied that he had a full viewing of the video, in particular of 19 July 2010.
41 Mr O’Brien also has not reviewed the plaintiff after the significant improvement he has made under the treatment of Dr Grave.
42 As there is a lack of clarity around the dates of the examinations and the reporting of the plaintiff’s condition in April 2013 and which of the relevant surveillance videos Mr O’Brien viewed, I am unable to fully rely upon his opinion expressed in his latest report. Furthermore, the fact that Mr O’Brien has not reported on the plaintiff’s current condition subsequent to the most recent successful treatment of the plaintiff by Dr Grave adds further doubt to the proper assessment of Mr O’Brien’s opinion.
(e) Mr Kenneth Brearley, orthopaedic surgeon
43 Mr Kenneth Brearley examined the plaintiff for medico-legal purposes in this application. He prepared three reports, dated 20 April 2012, 15 August 2013 and 6 March 2014.
44 In his initial report dated 20 April 2012, Mr Brearley formed the opinion that the plaintiff suffered from:
“Mechanical lumbar back pain resulting from aggravation of pre-existing degenerative changes in the lower lumbar spine and disc damage to the L3/4 and L4/5 intervertebral discs in particular. There is no radiculopathy.”[25]
[25]PCB 55
45 Mr Brearley went on to state that:
“He is capable of working in suitably selected employment. He is in the process of having a vocational assessment carried out and job finding assistance. In fact he has put in many résumés for work he considers suitable but so far without success.
Clearly he could work as a limousine driver or driver of a small delivery van making light deliveries. He could also work as a taxi driver.
…
These employment options take into account his age of forty-three years, his limited education and his experience only as a labourer. He has done a business course and he did run his own business for a short period.”[26]
[26]PCB 56
46 In his later report dated 15 August 2013, Mr Brearley had observed the surveillance video films of 19 July 2010. He noted the movements of the plaintiff displayed in that video.
47 Mr Brearley confirmed his previous diagnosis. Mr Brearley then stated:
“With regard to the report of Mr Kierce dated 19th July 2010, I note that he is basically in agreement with my conclusions reached when I first saw the patient. He indicates that the claimant does have a work capacity but it should be selective avoiding prolonged and frequent bending and the lifting of heavy weights and the use of jarring implements. He did not consider that he was fit to return to his pre-injury duties or even modified pre-injury duties.
Mr Kierce’s further report of 9th August 2010 was made after he viewed the surveillance footage. Mr Kierce had seen the claimant on the morning of the surveillance apparently and he had on examination presented a decreased range of movement. As a result of this and the fact that Mr Beauchamp was bending freely into the engine and lying under the car, he made the very reasonable conclusion the complainant was not as bad as he made out at the time of seeing him.
…
Nevertheless it would be difficult to say after seeing the surveillance that this man had a major disability. Clearly he is fit to do most forms of work but I believe that he should definitely avoid heavy and repetitive lifting and repeated bending and stooping.
The surveillance evidence would certainly indicate that he is capable of doing significant work and while I would understand Mr Kierce’s reaction to the footage, it remains my opinion that he does have ongoing disability such that some limitations are required. He is fit for most types of employment. I do not believe he could do his former work.”[27]
[27]PCB 60
48 In his final report dated 6 March 2014, Mr Brearley stated that he was awaiting a report from Dr Murray Grave. He said that he would provide further comment once he had received the report from Dr Murray Grave.[28] There has been no later report from Mr Brearley and hence I conclude that no up-to-date medical reports from Dr Grave were sent to him for consideration. I note that the plaintiff has received treatment from Dr Grave since the 15 August 2013 report by Mr Brearley, and the improvements to the plaintiff’s condition have not been assessed by Mr Brearley.
[28]PCB 64
(f) Medical Panel opinion
49 The plaintiff relied upon the Certificate of the Medical Panel dated 12 April 2011 to establish that the Medical Panel constituted by Mr John Bourke, orthopaedic surgeon, and Dr John Malios, had determined that the plaintiff suffered from a lower back injury in the course of his employment and that that impairment was permanent.[29] I have noted the finding of the Medical Panel but I am not bound by it and it is a determination made well before any treatment of the plaintiff by Dr Grave.
[29]PCB 101
(g) Mr Paul Kierce, orthopaedic surgeon
50 Mr Kierce examined the plaintiff on behalf of the defendant for medico‑legal reporting. Mr Kierce prepared two reports, dated 19 July 2010 and 9 August 2010. In his first report, Mr Kierce examined the plaintiff on 19 July 2010. Mr Kierce took a history from the plaintiff that he was taking Panadol Osteo three times a day and occasional tablets of Panadol and Codeine. He noted that the plaintiff’s favourite occupation as doing maintenance at home. The plaintiff had told Mr Kierce that he could do plumbing, woodwork and gardening but was at that time was unable to do any pick and shovel work because of the jarring to his back.[30]
[30]DCB 10
51 Mr Kierce then noted his examination of the plaintiff as follows:
“All movements were conducted in an active manner by the client. Where passive movement has been induced it has been recorded in the examination findings. No passive movements were performed beyond the limits of comfort.
He walks without a limp. He has decreased lumbar lordosis. He was readily able to walk on his heels and toes. Axial compression of his spine did not cause pain.
On attempted spinal flexion he could reach his fingertips as far as his knees. Extension was full in range and pain free. Lateral flexion to the right was painful and limited as was rotation to the left. Straight leg raising was free. There were no neurological abnormalities in his lower limbs with normal motor power, sensation and equal and reactive quadriceps, ankle and plantar reflexes.
Clinical examination of his hip joints did not reveal any abnormality.
Stressing his right sacroiliac joint did cause some back pain.”[31]
[31]DCB 11
52 Mr Kierce was of the opinion that physiotherapy treatment should be ceased as it was better for the plaintiff to be put on a self-management exercise program. He confirmed that it was appropriate for the plaintiff to continue with Panadol Osteo, two tablets, three times a day.[32]
[32]DCB 12
53 Mr Kierce’s opinion was that the plaintiff was suffering from lumbar spondylosis long term. His diagnosis could be confirmed by an MRI scan examination.[33]
[33]DCB 13
54 Mr Kierce’s opinion was that the plaintiff could never return to work in his pre-injury duties. He went on to say that the plaintiff is unfit to return to modified pre-injury duties but would be able to work in alternative duties with restrictions that he had mentioned. The restrictions set out in Mr Kierce’s report were that the plaintiff should not be involved in work which required prolonged or frequent bending, the lifting of weights greater than 15 kilograms, the use of heavy jarring implements such as picks, shovels and crowbars, or the driving of machinery which gives rise to vibrations.[34]
[34]DCB 14
55 After the examination by Mr Kierce, the plaintiff was observed on surveillance video film in the afternoon of the same day. Mr Kierce had subsequently been shown the surveillance video film of the plaintiff and he reported to the defendant on 9 August 2010. Mr Kierce set out in that report his observations of the plaintiff in the surveillance film, listing the movements observed by him.
56 Mr Kierce’s conclusion in that report was as follows:
“It is my opinion, having viewed the surveillance video, that this man is not as bad as he stated to me.
On the basis of the surveillance video, together with the fact that to my surprise he had only minimal degenerative change on the x‑rays of his lumbar spine leads me to the conclusion that this man is in fact fit for unrestricted working duties fulltime.”[35]
[35]DCB 20
57 Mr Kierce went on to state that there was no need for a further MRI scan examination and that the plaintiff should continue with a self-managed exercise program. He did not place any restrictions on the plaintiff’s ability to work in his pre-injury duties.
58 The evidence revealed that the plaintiff, upon being advised of Mr Kierce’s change in opinion, wrote to Mr Kierce on 25 August 2010. The letter became exhibit 2 in this proceeding. As a result of receiving the letter from the plaintiff, Mr Kierce has then written to the solicitors for the defendant on 27 February 2014 stating that he did not want to have any further assessment or consultation with the plaintiff.[36]
[36]DCB 21
(h) Mr Peter Battlay, orthopaedic surgeon
59 Mr Battlay was instructed to assess the plaintiff on behalf of the defendant for the purposes of impairment assessment. Mr Battlay prepared a report dated 24 February 2011. Mr Battlay reports, under the heading of “Examination”:
“Mr Beauchamp presents as a tall, slim, muscular, young man, in no obvious discomfort. He walks without a limp and holds his spine in normal posture. He demonstrates a normal affect. He performs a full range of back movements without spasm or dysmetria. He stands up with normal spinal rhythm from the bent forward position. There is no evidence of sciatic nerve root irritation or lower limb neurologic loss.”[37]
[37]DCB 24
60 Mr Battlay then went on to give his opinion as follows:
“Mr Beauchamp has established degenerative changes in his lumbar spine. There was an aggravation with an injury date of 11/02/2010, and he has a stabilised, permanent impairment because of that.”[38]
[38]DCB 24
61 The plaintiff conceded in his evidence that he had had back problems off and on for many years prior to the injury with the employer. He agreed that he had attended upon Dr King in September of 2008 with back complaints after working for the city council on “work for the dole” type employment. The plaintiff conceded that he had continued to see his general practitioner for a number of months over that episode of back pain.[39]
[39]DCB 39-40
62 Subsequent to the injury in February 2010, the plaintiff was able to return to work on alternative duties. The return to work plans and capacities are set out in the reporting by Work Able Consulting. It was reported that Mr Beauchamp had returned to work on 8 June 2010, completing the pre-injury duties as a food factory hand for 30 hours per week. This was on modified duties.[40] On 22 July 2010, Work Able Consultants reported that the plaintiff had also returned as a food factory hand for 12 hours a week. The plaintiff had reported that he was progressing well, provided he took his pain medication.[41] This reporting clearly raises the issue of an aggravation of a pre-existing low back complaint that the plaintiff has been suffering from for a long time.
[40]DCB 64
[41]DCB 67
The credit of the Plaintiff
63 Mr Elliott QC, on behalf of the defendant, stated at the outset of the application that the plaintiff’s credit in this case was in issue. In summary, the defendant was alleging that the plaintiff was exaggerating his symptoms and disabilities for secondary gain.
64 The defendant relied upon the actions and movements of the plaintiff which were shown in surveillance videos. The Court of Appeal, in Church v Echuca Regional Health,[42] set down a number of guidelines and cautions for courts when applying too much emphasis to the effect of surveillance videos on the determination of a plaintiff’s credit. I have taken those warnings and considerations into account when assessing the plaintiff in this particular case.
[42](2008) 20 VR 566
65 The plaintiff was examined by Mr Paul Kierce on the morning of 19 July 2010. The defendant showed video surveillance film of the plaintiff between 2.00pm and 3.00pm on that same day. Mr Kierce, orthopaedic surgeon, has also been shown the same surveillance film. In his report dated 9 August 2010, Mr Kierce set out his following observations about that surveillance film. Mr Kierce reported:
“In the history taking he told me that his back pain is aggravated by bending and lifting.
When I examined him I found that on attempted spinal flexion he could reach his fingertips as far as his knees only while lateral flexion the right was painful and limited as was rotation to the left.
The surveillance video at 2.00pm showed the worker lying flat on his back under a car which was elevated on some sort of a ramp.
He was using an angle grinder under the car and he also frequently bent over the car’s engine from the front of the vehicle as well as bending to pick up tools that were on the ground.
While he was underneath the vehicle he also rolled over several times.
While he was bending over the engine he was obviously lifting something up which was difficult to see.
When he was talking to his visitor he was waving his arms around above his head and he seemed quite free in all of his back movements which included rotating his lumbar spine and leaning sideways.
Subsequently he knelt to work on some tubing with spanners and he frequently bent forward.
It must be stated that the activities in which Mr. Beauchamp was involved demonstrated a significantly improved range of movement of his lumbar spine on that with which he presented to me only the morning of the surveillance.”[43]
[43]DCB 19-20
66 Mr Kierce went on to completely change his opinion about the condition and level of impairment the plaintiff was suffering. I have previously dealt with that in the reasons for judgment.
67 I have viewed the video in the course of the application. In his evidence prior to showing the film, the plaintiff gave evidence that he had difficulty playing with his children. He stated:
Q:“But you can’t lie down and do things, like play with your children or lie down and - and do activities that would put stress on your back?‑‑-
A:Now, you’re - I - I can lay down on my back but it's still painful to do so.
Q:Is it?—
A:But I can’t lay down on my back and play with the kids like other people who haven’t got the injury, and there’s a lot of things I really would like to do with my kids, you know - put them on my shoulders, go and kick a football with them. I can’t do that.
Q:Mr Beauchamp, I’m talking about lying on the ground with them. I mean, you’re saying you can't do that?‑‑-
A:Yeah.[44]
[44]T43, L26 – T44, L5
68 In his affidavits, the plaintiff had previously stated he had seen the video surveillance film. It turned out from his evidence in Court that he had not seen the video of 19 July 2010 until it was played in this proceeding.[45] The plaintiff stated that he had seen a number of still photographs of him leaning into the engine bay. It was on the basis of those photographs and the original report from Mr Kierce that prompted him to write his letter to Mr Kierce complaining about his condition.[46]
[45]T52
[46]Exhibit 2
69 The video surveillance film of 19 July 2010 shows the plaintiff performing the following activities:
Time Description 14:04 The plaintiff is under a car which is up on ramps. He is lying flat on his back and using a grinder. The plaintiff rolls over and fully rotates to lie on his side. The plaintiff is clearly twisting his back and working in an upwards direction towards the engine from the ground.
14:08 The plaintiff, whilst lying on his back, uses his feet planted firmly on the ground and raises his hips and then appears to walk in a crab-like manner, pushing further under the car with his shoulder blades on the ground.
14:10 The plaintiff gets up from the lying position and stands up without any apparent difficulty. He then stands and bends into the engine bay and reaches down into the engine bay. The plaintiff then, using what appears to be full force, is pulling on a spanner or some other lever whilst it is in the engine bay. This action clearly shows the plaintiff fully flexing his back with force.
14:12 The plaintiff’s mate, Brian, attends at the repair site.
14:16-14:19 The plaintiff is in conversation with his mate, Brian, and is twisting from side to side, demonstrating some action to his friend. He then fully stretches above his head with his hands and arms raised. The plaintiff, whilst in a standing position, freely rotates his body and moves around.
14:30 The plaintiff is standing and gesticulating freely to his mate, who leaves at about this time.
14:31 After his friend has left, the plaintiff gets down on the ground and lies down on his right initially. He then rotates onto his back and walks in a crab-like manner on his back, pushing further under the engine bay. He then rotates back onto his right side.
14:32 The plaintiff is wriggling on his back in a crab-like movement, fully torsioning his back.
14:34 The plaintiff is initially lying on his back and rotates to his left side using the grinder. Sparks can be seen under the engine.
14:36 The plaintiff comes out from underneath the engine bay and appears to be adjusting the ground sheet. He then arches his back in a swan-like manoeuvre to go back under the engine bay of the car. He moves a number of times in and under the engine bay, displaying full flexion, rotation and extension of his back.
14:42 The plaintiff comes out from underneath the engine bay and pulls out an exhaust pipe that he had been dismantling from the car.
14:42- 14:53 The plaintiff is seen working on the exhaust pipe outside of the engine bay. He is clearly bending over and using a spanner to adjust some bolts on the exhaust pipe. Whilst standing on his left leg, he kicks down with his right leg on the spanner in order to loosen the nuts. The kicking down was done with considerable force and has required the plaintiff to balance on his left leg whilst doing it.
70 The above is just a summary of the observations made of the plaintiff’s movements during the course of this surveillance film. It clearly shows that on 19 July 2010, the plaintiff, despite his complaints to Mr Kierce, was able to move and use his back in an apparently free and uninhibited way. It is to be noted that at this same time, the plaintiff was on a return to work program with Montague Cold Storage.
71 After the film had been shown to the plaintiff in the application, he stated that he did have restrictions shown in the film. The following evidence was given.
“Q:What exactly were they, Mr Beauchamp?‑‑-
A:Well, restrictions on the amount of leaning that I could do, I had to squat a lot of the time which I still do, right, because if I’ve got my feet together, for example, and I try to lean forward, right, I feel pain, but a lot of the time I try to squat, and that's the same as in the video, right. Some - and with the car on ramps where it's actually up higher, my angle of leaning is not as far, right, so it’s like me doing this, if I can show you, right. It’s just a slight lean forward, I’m not, you know, got my legs together and things like that. It’s – it’s all in a way where I can do it, right, but without the intensity.”[47]
[47]T54, L18-L30
72 The plaintiff was then challenged in his evidence about his presentation to Mr Kierce earlier in the day of 19 July 2010. The plaintiff’s evidence was as follows:
“… when I have a medical assessment. When I have a medical assessment, the doctors get me to put my legs together straight with no crouching, and try to see how far I can bend. Now, even though I can still bend a bit, it still hurts to do so.”[48]
[48]T56, L3-7
73 This is clearly an attempt by the plaintiff to explain away the stark difference between his presentation to Mr Kierce on 19 July 2010 and the way in which he is shown moving about later on the same day in the surveillance film. I reject his explanation about the difference made to him by keeping his feet together when doing his movements in the medical examinations. The film shows him on occasion with his feet together and leaning into the engine bay without any restriction or apparent pain.
74 The plaintiff was also shown video surveillance of him on 31 May 2013 and 3 June 2013. The first of those films showed the plaintiff going about his normal day involving shopping and taking the children to school. The second surveillance showed the plaintiff working at the fish shop in Morris Street. It was clear from that short video that the plaintiff was going about his part-time job of maintenance man at the fish shop without any restriction or limitation.
75 The plaintiff’s initial presentation was that he was very limited in any of the activities he can perform. This included any work capacity. In the course of his evidence, the plaintiff admitted that he had performed welding works for one of the fish shops, manufacturing a table, using his welding skills. The plaintiff admitted that he had a part-time job cleaning the filters in a fish shop and this work had transferred from one fish shop to another. The plaintiff admitted that he had constructed a brick wall and subsequently rendered it for a small cash payment. Of more recent times, the plaintiff admitted that he had been able to change the fuel pump on his wife’s car. He stated that job only took him 25 minutes.
76 I find that the plaintiff has exaggerated his disabilities and has grossly underestimated his capacities to perform physical work. I find that the plaintiff has exaggerated his disabilities with a view to secondary financial gain through a successful application for serious injury. Consequently, I find that the plaintiff was an unreliable and inaccurate historian to the medical practitioners and to this Court.
Consequences of the injury to the Plaintiff
77 The plaintiff relied upon three affidavits, dated 5 June 2012, 25 March 2013 and 17 February 2014 in support of his application for serious injury. I have read each of those affidavits. The plaintiff sets out the following consequences as a result of his back injury in those affidavits:
Sleep
78 In his first affidavit, the plaintiff stated that “I did not sleep very well at all that night because of the pain”. He stated that not a night would go by that he would not wake up at some stage or another as a result of the back pain.[49]
[49]PCB 7
79 In his second affidavit, the plaintiff stated that his sleeping pattern had improved slightly but he still had to get up as a result of back pain two or three nights a week instead of every night.[50]
[50]PCB 10
80 In his final affidavit, the plaintiff stated that his “sleep had improved because of the recent treatment and the medication I am taking has also helped me to cope better”.[51]
[51]PCB 21
81 In his evidence, the plaintiff was cross-examined about the reporting by Mr Grave. The evidence was as follows:
Q:“He says, ‘Overall he is making some progress. Increase the Allegron to 20 milligrams at night and he's sleeping better but consequently is going through the scripts a little quicker’, he increased your Allegron to 25 milligrams and you remained on the Celebrex and Panadol Osteo. Did you find that, he increased the Allegron to 20 milligrams at night and you were sleeping better, agree with that?‑‑-
A:Yes.”[52]
[52]T16, L21 – 28
82 Later on in his evidence, the plaintiff stated:
Q:“‘He said originally the low back pain was preventing sleep but now it no longer does so’?‑‑-
A:Again, even recently it’s been good as far as me getting a good night’s sleep, and as I said, since - the treatment I’ve been getting from Murray Grave has assisted me on doing that.”[53]
[53]T61, L8-12
83 I find that the plaintiff’s sleep is now not an issue for him as a result of the low-back injury. The treatment by Dr Grave and time has seen an improvement in his sleeping patterns and the interruption to his sleep is no longer a consequence for him.
Pain
84 The plaintiff has complained to all of his medical practitioners, both treating and medico‑legal examiners, about the level of pain he suffers. The assessment of the complaint of pain, of course, relies on the credibility of the plaintiff. I have dealt with this issue earlier in these reasons. In his evidence, the plaintiff stated:
“… The injections have helped but it hasn’t completely taken away the pain, it has reduced it but it hasn't taken it away.”[54]
[54]T14, L1-3
85 The plaintiff later stated that when he saw Dr Grave on 3 September 2013:
“I remember telling him over the time that it slowly reduced in pain. I can’t remember exactly what date that was.”[55]
[55]T15, L25-27
86 The plaintiff agreed that in October 2013, that he reported to Dr Grave that he was able to move around with the same degree of pain on some occasions. He says his pain has been minimal, perhaps 1 out of 10.[56]
[56]T 18
87 The plaintiff stated that in December of 2013, he would describe his pain as being 2 out of 10.[57]
[57]T 23
88 I find that as a result of the treatment by Dr Grave and the medication taken by the plaintiff, that his pain levels have been controlled and reduced to what he describes as 2 out of 10 on the usual analogue scale. I find that the plaintiff has had a long-term low back injury and that the level of aggravation caused by the accident in this application is of a minor degree. The pain levels now suffered by the plaintiff are low-grade low-back pains and are not a very considerable consequence for him.
89 The plaintiff, in re-examination, gave evidence of occasions when he would be “caught out”. An example of that was when he was bathing the children and he had to reach over the bath to the taps on the wall. He stated that on those occasions, his pain level would go up to 5 or 6 out of 10. This would occur on average about three times a week.[58] I do not accept the plaintiff’s evidence in this regard. This is an example of him attempting to exaggerate his pain and difficulties as a result of his low back.
[58]T 91
90 I conclude that the plaintiff’s consequences in relation to pain are not very considerable.
Medication
91 The plaintiff has deposed that he takes the following medications: Allegron 20 milligrams, Panadol Osteo and Celebrex.[59] The Allegron medication is an anti-depressant and has no relevance to this application. The Celebrex medication is an anti-inflammatory. The Panadol Osteo is an over-the-counter pain-relief medication. The defendant is not paying for any of this medication.[60]
[59]T76
[60]T49
92 I accept that in some cases, the need to take constant medication for pain relief can amount to a very considerable consequence for a plaintiff. In this case, I do not accept that the need for the plaintiff to take Panadol Osteo and Celebrex amounts to a very considerable consequence for him. The plaintiff has had a longstanding low-back injury which flares up from time to time. The level of activities he is able to engage in is inconsistent with his complaints of pain to the level set out in his evidence and affidavits. I do not find that the need for the plaintiff to take Panadol Osteo and Celebrex is a very considerable consequence for him.
Ongoing treatment
93 The plaintiff is still under the care of Dr Grave. He last saw Dr Grave one week ago. His last injections to his back were in February 2014. The effect of Dr Grave’s treatment has been a marked improvement in his condition, as reported both by Dr Grave and by the plaintiff. On the current state of the evidence, it would appear that Dr Grave’s current treatment is more one of monitoring and ensuring that the plaintiff takes the pain-relief medication referred to earlier in these reasons and continues with his exercise program. There is no reporting from Dr Grave that a continuation of the injection therapy is required in this case.
94 I conclude that the ongoing medical treatment required by the plaintiff as the result of his low-back injury with the employer in this application is a minor inconvenience for him.
Activities of daily living
95 The plaintiff is currently in receipt of a parenting payment. He gave his occupation as “parenting”. He assists his wife in the care of their two children, aged six and five. The children go to school and to kindergarten. The plaintiff was videoed performing that task.
96 In the course of this application, the plaintiff gave evidence that he was able to move house on two occasions with the assistance of others,[61] that he performed the vacuuming tasks in the house and now has a new vacuum cleaner.[62] He stated he was able to go fishing, but in evidence it became clear that he went down to the Hopkins River with his children and his wife. He personally did not have a fishing licence. His wife did have a fishing licence. The low-back injury is not the reason the plaintiff does not do the actual fishing
[61]T21
[62]T40
97 I conclude that the plaintiff’s activities of daily living have not been interfered with to any great extent as a result of the low-back injury with the employer.
Conclusion
98 I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury to his low back has occasioned him. I am required to determine where the facts of this particular case sit in a broad spectrum of cases. The test to be applied is whether the plaintiff’s pain and suffering consequences, when judged by a comparison with other cases in the range of possible impairments or loss of body function, may be fairly described as being more than significant or marked and as being at least very considerable.
99 I have taken into account, in assessing the level of consequences for the plaintiff in respect of his injury, by also examining what capacities he has retained despite his injury.
100 I have taken into account the considerations set out in the cases of Haden Engineering Pty Ltd v McKinnon[63] and Sutton v Laminex Group Pty Ltd[64] to determine the impact of pain and the extent of it on the plaintiff in this case. Ultimately, the decision I am required to take is a value judgment in which matters of fact and degree are to be taken into account when making the assessment of the total consequences to the plaintiff arising from his injury to the lower back.
[63](2010) 31 VR 1
[64](2011) 31 VR 100
101 I am also required to take into account whether or not the injury and consequences to the plaintiff as a result of his lower back are permanent, in the sense that they are for the foreseeable future. I am also required to assess the level of aggravation which has been caused by this injury to a pre-existing low-back complaint that the plaintiff had suffered.[65]
[65]Petkovski v Galleti [1994] 1 VR 436
102 I conclude that, taking into account the consequences as I have found them to be, that they are not of such a level to be properly described as being “very considerable” either separately and individually or collectively as a group. I am not satisfied the plaintiff’s impairment as a result of the injury to his lower back is more than significant or marked and properly described as being at least very considerable.
103 The application for serious injury certification by the plaintiff is dismissed.
104 I will hear the parties on the question of costs.
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