Berg v Perfect Pork (a firm) and Victorian WorkCover Authority
[2014] VCC 2180
•19 December 2014
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-14-02800
| MARK ANDREW BERG | Plaintiff |
| v | |
| PERFECT PORK (a firm) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 9 December 2014 | |
DATE OF JUDGMENT: | 19 December 2014 | |
CASE MAY BE CITED AS: | Berg v Perfect Pork (a firm) & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2180 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application on the basis of s134AB(37)(a) – whether injury to the lumbar spine “serious” within the meaning of s134AB(38)(c) – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Judgment: Leave granted pursuant to s134AB(16)(b) of the Act to commence a common law proceeding against the defendants claiming damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr I Fehring | Stringer Clark |
| For the Defendant | Mr P D Elliott QC with Mr J Batten | Thomson Geer |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Originating Motion dated 10 June 2014.
2 The plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”) to commence a common law proceeding against the defendants claiming damages.
3 The plaintiff’s case is that he suffered an injury arising out of, or in the course of, or due to the nature of his employment with the first defendant.
4 There is no issue in this proceeding that in the course of his employment with the first defendant, on or about 28 October 2008, the plaintiff suffered an injury to his lumbar spine.
5 Further, there is no issue in this proceeding that the plaintiff continues to suffer pain and suffering consequences as a result of sustaining the injury, or that those pain and suffering consequences are likely to be permanent.
6 The plaintiff claims that the injury he sustained has resulted in permanent serious impairment or loss of a body function to his back and lumbar spine within the meaning of s134AB(37)(a) of the Act.
7 The plaintiff seeks leave to commence proceedings claiming damages for pain and suffering only.
8 The issue in dispute in this proceeding is limited to the question of whether or not the pain and suffering consequences of the plaintiff’s injury are “serious” within the meaning of s134AB(38)(c).[1] This issue is to be determined having regard to all of the evidence.
[1]Transcript (“T”) 5
9 To make out a “serious injury” within the meaning of s134AB(37)(a), the plaintiff must establish, on the balance of probabilities, that he suffered a “permanent serious impairment or loss of a body function”. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not “serious” unless the pain and suffering consequence is, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and, as being at least very considerable” within s134AB(38)(c).
10 It is necessary, as in every application of this kind, to examine the evidence in order to decide what injury the plaintiff suffered during the course of his employment and, what consequences (if any) were suffered and continue to be suffered by him.
11 The plaintiff filed and served two affidavits in support of his application. Those affidavits were sworn on 30 January 2014 and 7 November 2014 respectively.[2]
[2]See Plaintiff’s Court Book (“PCB”) pages 1 to 9 inclusive
12 In addition, the plaintiff was called for cross-examination and was extensively cross-examined by the defendants’ Senior Counsel.
13 In addition, the plaintiff filed a Court Book containing a number of medical reports and radiological images. I admitted into evidence as exhibit A the Plaintiff’s Court Book (“PCB”) pages 1 to 9 and 39 to 63, both inclusive.
14 I admitted into evidence as exhibit 3 on behalf of the defendants, pages 7 to 22 inclusive from the Defendants’ Court Book (“DCB”). I also admitted into evidence as exhibits 1 and 2 respectively, video surveillance evidence depicting the plaintiff at work on 2 June and 26 July 2014 and also on 7 November 2014. I will refer to this evidence in more detail later.
15 After considering all of the evidence and the various submissions made by counsel, and for the reasons which hereafter follow, I have concluded that the plaintiff should succeed on his Originating Motion. These are my reasons for that decision.
16 It is necessary to start with the affidavit material filed by the plaintiff.
17 The plaintiff is twenty-eight years of age. He attended school in Queensland but did not pass Year 12. He has no formal post schooling qualifications. He is single with a dependent child that lives with its mother.[3] Since leaving school he has had a number of different jobs, mostly involving labouring or panel beating, but has also been employed doing such jobs as delivering pizzas and stacking shelves in supermarkets. He has also had a job in sales employed by Repco.[4]
[3]PCB 1
[4]PCB 1 – 2
18 The plaintiff was injured on 28 October 2008 whilst working for the first defendant as a butcher. He was cutting shoulders out of slaughtered pigs when he took the full weight of one of the beasts and injured his back.[5] I will return to his injury in more detail later.
[5]PCB 2
19 The plaintiff was unable to work for a long time after being injured. He attempted to return to work on light office duties in March 2009 but he said he lasted in that job only a few days. He received weekly compensation payments for the statutory 130 weeks, which expired in April 2011.[6]
[6]PCB 3
20 In November-December 2009, he shifted to Portland, where he remains. He obtained employment through the WISE program at Repco. He was employed in sales in the Repco store and doing some deliveries. He said he was able to manage this work because he had a seat at the counter and was not constantly standing and, also because he had an understanding boss. However, when funding for the WISE program ceased, he was put off. Thereafter, he was out of work for about eight months.[7]
[7]PCB 3
21 In my view, the fact the plaintiff was only able to obtain employment with the aid of the WISE program and, the fact that after it ceased he was out of work for eight months demonstrates how vulnerable he can be in the labour market when he is unable to rely on his major asset, which is a strong body, to find manual labouring type work. The plaintiff in this application argues that because, as a consequence of his injury he has been left with what can be described as a “light work back”, that in itself is a serious consequence for him when he is no longer suitable for heavy manual work because of his injury. I accept this submission in the circumstances of this case.
22 Having been out of work for about eight months, the plaintiff found work at Woolworths doing night fill. He described the work as being heavy and involved a lot of bending. He deposed he often suffered aggravation of his back pain and never went home after a shift without a significant increase in his back pain. He said he medicated with Codalgin Forte and self-medicated with painkillers and alcohol at home.[8] This job lasted about a year.
[8]PCB 3
23 In his affidavit, the plaintiff deposed that his job meant that when he went home in pain and this was a cause of friction with his then partner. He said, inter alia:
“I subsequently moved out. I tried to continue to work but in the end I realised that I couldn’t keep going in this way. I resigned from Safeway about October 2013.”[9]
[9]PCB 4 [24]
24 In response, the defendants put into evidence an affidavit of one Tony Bueti sworn 21 November 2014. Mr Bueti is the manager of the relevant supermarket where the plaintiff worked. Mr Bueti deposed in substance that the plaintiff did not resign but rather he left his employment in questionable circumstances when he was observed selling a large amount of stock well below retail price without authority. The matter was apparently referred to the police but nothing appears to have come of it. The plaintiff did not return to the store and his employment was formally terminated on 13 April 2014. Mr Bueti also deposed to having observed the plaintiff working without restrictions.
25 The defendants use this evidence in part to attack the credit of the plaintiff. He said he resigned but the employer disagrees and says it terminated the plaintiff’s employment. Much was made of this matter both in cross-examination and in argument. The argument was flavoured by the nature of the circumstances investigated because of the inference that the plaintiff had acted dishonestly towards his then employer, Woolworths.
26 I am not prepared to draw an adverse inference as to the credit of the plaintiff based upon this evidence. I am sure there was an incident but this application can hardly turn on the question of whether the plaintiff resigned or was dismissed from his job. In my view, the answer matters for little in the scheme of things. The police did not take action and I certainly do not infer that the plaintiff acted dishonestly in any way without proper evidence.
27 The plaintiff deposed that as a result of the injury to his lower back, he has a constant ache and a feeling of tightness in his lower back. He says the level of pain increases with activity and can be extreme at times.[10]
[10]PCB 4 [29]
28 The plaintiff deposed to waking every night because of his back pain.[11] He says he now tries to avoid activities that he knows will increase the pain.[12] He deposed to being unable to walk longer than 200 metres without his back stiffening up and he cannot stand still for long periods. He also said he cannot sit for longer than an hour without the pain increasing.[13] He deposed to taking Codalgin Forte, three to seven tablets per week, depending on his activities.[14]
[11]PCB 4 [30]
[12]PCB 4 [31]
[13]PCB 5 [35] and [36]
[14]PCB 5 [37]
29 In his second affidavit, the plaintiff deposed to continuing to see his general practitioner for prescriptions for medication, which he said includes Tramadol which he said he took “occasionally”.[15]
[15]PCB 7 [2]
30 By the time the plaintiff swore his second affidavit, he had started a gardening maintenance business with a friend, James De Bono, who was not called. I will return to this activity later, because it is a feature of the video surveillance tendered by the defendants.
31 The plaintiff deposes that once or twice per week, he will have a particularly bad day when his back pain is more severe than at other times and he spends time in bed on these days. He continues to complain of sleep disturbance and lack of sleep as a consequence of his injury.[16]
[16]PCB 7 [3]
32 The plaintiff described the business he started with Mr De Bono as part of a Centrelink program. He said, inter alia:
“It is really a lawn mowing service but we were also doing anything else involving gardening activities. James was doing most of the heavier work and things that I couldn’t do. I cannot do any heavy lifting. I am able to use a rider mower. We do about 3 or 4 jobs per week and the jobs can last 1 to perhaps 2 hours. As long as we got the jobs finished it didn’t matter that we had a rest or break. I couldn’t do this work full time. I certainly couldn’t go back in my old work because that is far too heavy.”
33 The defendants tendered exhibit 1 during the cross-examination of the plaintiff. The video depicts the plaintiff and his partner attending to their gardening business on 2 June and 26 July 2014. The plaintiff is depicted, amongst other activities, mowing lawns both with a ride-on mower and a push mower, raking light cuttings and placing them into a trailer, using a petrol powered Whipper Snipper and edger, carrying a jerry can and spraying weeds. But none of the plaintiff’s work as depicted in the video seems to me to be all that onerous or requiring great strength. The activity in which the plaintiff is depicted in the video to my mind was entirely consistent with the activity that the plaintiff acknowledges that he can do. The plaintiff does not say and, has never said, he cannot work. His case is that he cannot perform heavy manual work without pain as a consequence. There is strong medical evidence to support that case. In his affidavit, the plaintiff deposed to his partner, Mr De Bono, undertaking most of the heavier work for the business.[17] In my judgment, having looked closely at the video evidence, what the plaintiff deposed to is corroborated by the video. In the course of argument, I commented I was not surprised his partner left the partnership because he seemed to be doing most of the work.[18]
[17]PCB 8 [5]
[18]T39
34 Rather than diminish the plaintiff’s case, I formed the strong impression the video, exhibit 1, enhanced his case. In my view, there was no need for the plaintiff to call Mr De Bono, because what the plaintiff had said about he having performed most of the heavier work was corroborated by the video. In my opinion, far from diminishing the plaintiff’s credit, the video, exhibit 1, enhanced it.
35 Exhibit 2 was a video of surveillance of the plaintiff at work on 7 November 2014. This video depicts the plaintiff cutting grass with a hand mower. No adverse inference can or should be drawn against the plaintiff because of what is depicted on it. At best from the defendant’s point of view, this video is equivocal.
36 The plaintiff deposed as to the present state of the business and how he copes with it in this way. I accept this as an accurate statement of the true position relating to the plaintiff’s gardening business:
“As previously stated, I have one or two bad days a week and often have to stay in bed. I am able to run the business as generally the work is able to be done when it suits me. I am able to move the jobs to another day. Even then I have back pain every day and often struggle to finish the jobs scheduled for that day.”[19]
[19]PCB 8 [6]
37 In his second affidavit, the plaintiff said that as a consequence of his injury, he was unable to pursue a hobby of restoring cars.[20] Whilst I accept this as accurate, there is little evidence that reveals the extent to which the plaintiff pursued this hobby.
[20]PCB 8 [7]
38 I turn to look at the medical evidence.
39 The plaintiff attended upon his then general practitioner, Dr Waechter, on the day after he suffered his injury at work. On examination, there was tenderness at the left lower thoracic facet joints and para lumbar muscle spasm. His back movements were said to be moderately restricted. He was referred to physiotherapist and given a certificate for several days’ rest from work.[21]
[21]PCB 39
40 A CT scan of the lumbosacral spine was performed on 8 December 2008. It reported:
“A pars defect is demonstrated on the right at L5; some sclerosis of the left pars is noted but no defect … At L4/5 level there is a possible small left lateral disc protrusion but no encroachment centrally upon the thecal sac. There is slight reduction of the epidural fat in the left exit foramen. At L5/S1 there is a mild annular bulge with slight effacement of the thecal sac, but good preservation of the epidural fat.”[22]
[22]PCB 39 and 46
41 Dr Waechter diagnosed chronic mechanical low back pain. He referred the plaintiff to an orthopaedic surgeon and, for pain management, but there is no record of the plaintiff having taken up either referral. Dr Waechter thought the plaintiff unfit for heavy labouring work such as his pre-injury employment.[23]
“There should be a reasonably good prognosis if Mark avoids heavy labouring work. He should be capable of doing light manual work and other non labouring jobs which involve minimal lifting over 10 kilograms.”[24]
[23]PCB 40
[24]PCB 41
42 Dr Stephanson has been the plaintiff’s general practitioner since March 2010 after the plaintiff moved to Portland to live. When he saw the plaintiff, he was complaining of intermittent left lower limb pain and sensory deficits of L5 distribution. He ordered an MRI scan of the lumbosacral spine which he said confirmed discopathy at the L5-S1 level but with no impact or impingement upon the central canal or nerve roots. He thought the discopathy (disc desiccation with a small bulge) was the explanation for the plaintiff’s ongoing lumbar back pain.[25] Dr Stephanson cautioned as to the kind of work and sporting activities the plaintiff should undertake.
[25]PCB 42 and 48
43 In his second report of April 2014, Dr Stephanson confirmed seeing the plaintiff on a regular basis for “ongoing analgesia to manage recurrent exacerbations of his lumbar back pain”. He had also referred the plaintiff for physiotherapy and, the physio had provided the plaintiff with an exercise program which he said in evidence he pursues. Dr Stephanson concluded:
“Despite the above improvements in clinical state the discopathy of L5/S1 is in my opinion likely to continue to provide Mr Berg with ongoing daily lumbar back pain which he has however clearly learnt to manage – both in terms of appropriate preventative exercises and avoidance of exacerbating activities. Mr Berg will need to remain vigilant in maintaining both of these aspects of his management to minimise the risk of further exacerbations of back pain and the more serious development of nerve root irritation leading to lower limb neurological disturbance.”[26]
[26]PCB 45
44 Mr David Brownbill, a neuro-surgeon, saw the plaintiff for medico-legal purposes on 25 May 2011. He gave the opinion that the plaintiff probably “sustained an L4-5 lumbar intervertebral disc derangement” as a result of the incident at his work on 28 October 2008. As a consequence, he thought the plaintiff was “restricted in relation to employment or related activities in a moderate to marked degree” and, that such incapacity would continue into the foreseeable future. He thought the plaintiff had no capacity to perform his pre-injury duties on a permanent basis.[27]
[27]PCB 52
45 Mr John O’Brien, a general surgeon, also saw the plaintiff at the request of the plaintiff’s solicitors. He saw the plaintiff twice, in February 2011, and in July 2013. He thought the plaintiff suffered chronic non-specific back pain with the exact source of the symptomatic pathology not defined by the investigations. He concluded his first report by stating:
“The patient now describes mild disability associated with ongoing chronic back pain. I would consider that the patient would not be capable of undertaking unrestricted heavy manual employment. As indicated, the patient now is working on a full-time basis, the patient reporting that his physical duties are somewhat limited, and that he does not get involved in any heavy lifting. In fact I would consider that the patient remains capable of undertaking modified duties, which I think he can undertake on a full-time basis. I would however consider that the patient will never be able to return to heavy physical unlimited type employment without an exacerbation of his ongoing lumbar pathology. Thus, in my opinion the patient will remain somewhat restricted in his general, social, domestic and recreational activities and this I believe will be a permanent situation.”[28]
[28]PCB 57-58
46 In his second report, Mr O’Brien did not change his opinion.[29]
[29]PCB 62-3
47 Mr Paul Kierce, an orthopaedic surgeon, saw the plaintiff for medico-legal purposes on behalf of the defendants on 20 June 2011.[30] He wrote a lengthy report that, in my view, was short on medical opinion and analysis. He diagnosed the plaintiff as suffering from a “work-related aggravation of pre-existing lumbar spondylosis”.[31] He went out of his way to say that much of the plaintiff’s problem was related to his excessive alcohol intake. This was not an issue in the hearing of this matter, with the plaintiff giving brief evidence that he had stopped drinking.[32]
[30]DCB 7
[31]DCB 13
[32]T29-30
48 In deciding this application, I prefer the medical evidence from the plaintiff’s treating practitioners and Mr Brownbill and Mr John O’Brien to the evidence of Mr Kierce, whose evidence I found unhelpful. In any event, in submissions, it was conceded by the defendants that the plaintiff was injured at his employment and that he does suffer from some ongoing pain from what has been described as a light work back.
49 Mr Elliott submitted the plaintiff is not a witness of truth. He relied on the circumstances of his dismissal from Woolworths and the videos in this regard. I have already said I reject these submissions. I thought the plaintiff gave straightforward evidence consistent with what he had been telling doctors over the last five years. I accept his evidence. I accept he suffers from chronic low back pain as a result of his injury at work in October 2008. I accept the plaintiff suffers the consequence that, as a result of his injury, he is restricted in the kind of work he can undertake and the kind of sports and hobbies that he can pursue. He is a young man aged twenty-eight years with limited education and training. In normal circumstances he would be relying on his ability to do heavy labouring work to derive an income, and this is now denied him. For a person of his age, education and training this is a significant consequence which will affect the plaintiff for the rest of his working life. When that consequence is added to the other consequences the plaintiff continues to suffer from, especially ongoing back pain, I am satisfied the plaintiff has made out his case for leave.
50 Mr Elliott submitted that whilst the plaintiff suffered an injury to his low back, he has largely recovered and the consequences for him insofar as they affect his working, domestic and social life do not amount to a serious injury within the Act. He pointed to the lack of treatment and the low level of medication and the activities that the plaintiff can undoubtedly still perform as demonstrated in the video evidence. I reject these submissions.
51 Accepting, as I do, the evidence of the plaintiff, both in his affidavits and before me and, accepting, as I do, the medical evidence tendered on behalf of the plaintiff, I am satisfied the pain and suffering consequences suffered by the plaintiff can, when judged by a comparison with other cases in the range of possible impairments, be fairly described as being more than significant or marked and, as being at least very considerable.
52 For these reasons, the plaintiff will have leave pursuant to s134AB(16)(b) of the Act to commence a common law proceeding against the defendants claiming damages for pain and suffering.
53 I will hear the parties on the question of costs.
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