Blackburn v Murindindee Shire Council
[2013] VCC 1298
•1 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-12-02117
| DAVID ALAN BLACKBURN | Plaintiff |
| v | |
| MURINDINDEE SHIRE COUNCIL | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 15 July 2013 | |
DATE OF JUDGMENT: | 1 August 2013 | |
CASE MAY BE CITED AS: | Blackburn v Murindindee Shire Council | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1298 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation Act 1985 (Vic) – Injury to lumbar spine – Pain and suffering and economic loss – Whether consequences to plaintiff are serious
Catchwords:
Legislation Cited:
Cases Cited: Guppy v Victorian WorkCover Authority & Anor [2010] VSCA 164 – Petkovski v Galletti [1994] 2 VR 427
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Jewell S.C. with Mr S. Carson | Faram, Ritchie & Davies |
| For the Defendant | Mr N. Griffin | Thomsons Lawyers |
HER HONOUR:
Introduction
1 The plaintiff’s application is for leave to bring proceedings for damages pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”). The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
2 The plaintiff relies on the definition of serious injury to be found in s134AB(37)(a) of the Act. There, “serious” is defined relevantly as meaning “a permanent serious impairment or loss of a body function.” The body function relied upon in this application is the low back/lumber spine
3 As is usual in these applications, the parties relied on material in their respective court books. The plaintiff swore two affidavits. The first affidavit was dated 2 February 2010 (“the first affidavit”) and the second affidavit was dated 5 December 2012 (“the second affidavit”). The plaintiff was the only witness called.
Background history
4 The plaintiff is 57 old. He is single and resides with his mother. He is currently on a disability pension. He was educated to year 8 and left school aged 14. Since then, he has worked in a number of labouring jobs including felling trees, construction work, as a deckhand on a trawler boat, managing a piggery, as a carpenter’s labourer and as a seasonal worker in a fruit cannery.
5 The plaintiff commenced employment with the defendant as a waste transfer attendant on 21 February 2001. Due to various health issues, including rheumatoid arthritis, hypertension and schizophrenia, he was restricted to working 19 hours a week.
6 The waste was deposited in the area where the plaintiff was working and he was involved in the maintenance of the bin. Where the bin was positioned, there were metal plates which were hinged to an adjacent wall to stop rubbish overflowing into areas between the bin and the wall. Before the bin was moved these steel flaps had to be lifted.
7 In about March 2006, the plaintiff suffered pain in his low back when he was performing the job of lifting these metal plates. He could not recall whether he had any time off of work but he was able to continue to do his duties and he believed that whatever he did to his back at that point in time fully recovered.
8 On or about 23 February 2007, however, the plaintiff was again in the process of lifting the plates when he felt a sharp pain in the base of his back near his hipline. He was bent over when he felt the pain and it is this episode that he claims not to have made a recovery from.
Treatment
9 As a result of the injury suffered on 23 February 2007, the plaintiff consulted doctors at the Downing Street Clinic at Alexandra. A CT scan of his back was organised and he was prescribed medication, including Panadeine Forte. The clinic also arranged for him to be examined by Mr Graeme Brazenor, a neurosurgeon in Melbourne.
10 Mr Brazenor advised the plaintiff against any form of surgery and gave him advice about undertaking exercise and avoiding activities which aggravated the pain in his lower back. However, the plaintiff’s main treatment was by way of medication such as Panadeine Forte, Panamax and Mobic
11 After this episode in February 2007, the plaintiff did not lift the plates again and the truck driver who came to pick up the waste bin did this job for him. The plaintiff continued to work according to an agreed return to work plan until August 2007 when he went onto a full invalid pension.
12 After ceasing work with the defendant, in either 2008 or 2009 the plaintiff obtained casual work at the SPC Cannery at Shepparton. However, he only worked 5 or 6 shifts doing washing up duties. This was because he found the work too physically demanding.
Medical reports
13 Mr Graeme Brazenor, first saw the plaintiff on 18 April 2007. In his report of 6 June 2011, Mr Brazenor stated that the plaintiff had “injured his back lifting heavy bin lids of 15kg each in March 2006,and further re-injured it on 23 February 2007” and that “he had experienced considerable pain in the low back and radiating down both legs and to the hip”.[1]
[1] Plaintiff’s court book (“PCB”), p. 1.
14 Mr Brazenor arranged for the plaintiff to have a magnetic scan of his lumbar spine performed on 26 March 2007, where essentially the main finding of interest was that there was a diffuse disc bulge at L4-5. Mr Brazenor thought that this was the disc that the plaintiff had injured on 23 February 2007 and possibly before that in March 2006. This bulge was more to the left than the right.
15 Mr Brazenor advised the plaintiff that “his days of bending at the waist and lifting objects to or from levels below his waist were over for good.”[2] He provided restrictions and limitations on the plaintiff’s employment activities, as specified in a certificate of capacity.
[2] PCB, p. 2.
16 In Mr Brazenor’s opinion, as a result of the injury, the plaintiff would never be fit to do any job which required repetitive bending at the waist or accessing of levels below the waist. His condition could be expected to improve if he followed this advice and did not sustain further discrete injury.
17 On 1 November 2012, Mr Brownbill, a consultant neurosurgeon, reported to the plaintiffs solicitor’s that when he saw the plaintiff on 31 October 2012, his specific symptoms were of lower back pain extending to the right, fluctuating in severity, worse with physical activity, crouching or bending. It presented most of the time and had not gone away completely since 2007. The plaintiff sometimes lay down with it.
18 Mr Brownbill described the plaintiff as being “co-operative on examination without embellishment” but as “exhibiting apparent poor memory of some details,”[3] The examination on 31 October 2012 had shown “restrictions of thoracolumbar spinal movements. There was no objective neurological abnormalities of the lower limbs. There were not signs of radiculopathy. The absence of all lower limb reflexes on probability represents his long-standing general medical condition.”
[3] PCB, p. 3.
19 Mr Brownbill described the radiological investigation of the plaintiff’s lumbar spine as demonstrating long-standing lower lumbar inter-vertebral disc derangement with a bulge at L4-5. The history provided in the medical centre notes indicated that there had been “at least intermittent long-standing lower back pain” and some ongoing back pain following the 2006 incident.”[4]
[4] PCB, pp. 4-5.
20 On this history, Mr Brownbill was of the opinion that the plaintiff probably sustained some aggravation of the pre-existing lumbar spine degenerative changes at that time. However, the plaintiff was able to continue performing his full duties until the incident in 2007 when there was severe low back pain which increased and as a result he went onto lighter duties and later ceased working.
21 The probability was that the plaintiff sustained further aggravation to the lumbar spine degenerative changes in the incident in 2007. It was likely that this pain would continue indefinitely in a fluctuating manner. He should avoid activities of heavy lifting, forced spinal mobility, repeated bending or prolonged sitting or standing. The injury sustained of aggravation of lumbar spine degenerative changes still persisted and, on description, impacted on the plaintiffs capacity to work.
22 In his report of 27 November 2011, Mr Michael Shannon diagnosed the plaintiff as having “a soft tissue injury, lumbar spine with aggravation of pre-existing lumbar disc degeneration. The prognosis was for the plaintiff’s back to remain stable but vulnerable to further injury.”[5]
[5] PCB, p. 3.
23 Mr Shannon noted that the plaintiff had a subsequent motor vehicle accident which he claimed had injured his upper back. The plaintiff had also stated that the upper back was not painful prior to the motor vehicle accident. In Mr Shannon’s opinion, the plaintiff was “limited in performance at work involving significant bending and lifting and he appeared to have very limited skills or qualifications.”[6]
[6] PCB, p. 4.
24 In his report of 12 February 2013 to the defendants solicitor’s Dr Dominic Yong, a Specialist Occupational Physician, diagnosed the plaintiff as being a man who reported chronic low back pain for an initial discal injury which had been complicated by a de-conditioning process. In Dr Yong’s opinion the plaintiff had a capacity for work with restrictions including avoiding repeated bending and twisting the back, firm pushing or pulling, varying his posture regularly between sitting, standing and walking and avoiding lifting more than two kilograms on a repeated basis.
25 On 12 February 2013, Dr Yong carried out a worksite assessment at Marysville Transfer Station The aim of the visit was to determine the inherent requirements of the pre-injury duties to assist to determine the plaintiff’s capacity for work.
26 In his opinion, the plaintiff had a current capacity for his pre-injury work and hours (19 hours). Dr Yong described the tasks as follows:
“The tasks do have minimal manual handling. They are self –paced. The tasks involved a variety of postures. There is an avoidance of repeated bending and twisting of the back. Therefore, the tasks do comply with the restrictions and are reasonable. “[7]
[7] Defendant’s court book (“DCB”), p. 3.
27 Mr Michael Dooley, orthopaedic surgeon, provided the defendants solicitor’s with two reports, dated 30 May and 7 June 2013. In his report of 30 May 2013, his opinion was that the plaintiff “had naturally occurring and age related degenerative disc disease of the lumber spine which was aggravated by lifting and manoeuvring episode during the course of his work in February 2007.”[8]
[8] DCB, p. 3.
28 However, accepting that the plaintiff aggravated his underlying degenerative disc disease in the work of related episode of February 2007, Mr Dooley was of the view that his subsequent clinical course had not been typical for the condition.
29 Following such an aggravation, Mr Dooley would have expected the plaintiff to have noted some ongoing intermittent low back pain. He would not have expected his pain to become more constant and more intense in time. He believed that the plaintiff had a psychological reaction to his situation and that this reaction influenced his ongoing symptoms.
30 Despite this opinion “from an orthopaedic point of view,” Mr Dooley did not believe that the plaintiff was fit to carry out his pre-injury employment but he believed that the plaintiff had the physical capacity to carry out light physical work and clerical duties.
31 In his more recent report of 7 June 2013, Mr Dooley’s opinion was if the plaintiff’s duties at the Transfer Station were to advise customers where to place their waste and collect payment but not to lift and manoeuvre the steel flaps he would be fit to carry out the duties.
Claimed consequences of plaintiff’s low back injury
32 In his first affidavit, the plaintiff deposed that he now suffers constant symptoms of low back pain. The level of his pain fluctuates, however, it is particularly bad when the weather is cold or if he has to stand in one place over a period of time.
33 The plaintiff claims that as a result of his low back pain:
· He has trouble sleeping and has been prescribed medication to help him sleep.
· On a couple of occasions when getting out of bed in the morning he has lost his balance due to a loss of feeling in his legs.
· He no longer has the capacity to undertake manual work.
· Although he has always enjoyed doing handyman work he does not believe he has the capacity to undertake this work anymore because it involves a lot of bending, kneeling down and lifting, which activities aggravate his back pain.
· He has brothers who live in Eildon and Gunbower, about two hours drive from where he lives. When he goes to visit them he has to stop and break his driving trip because his back and legs get very stiff.
· Prior to his injury, he was quite a keen fisherman. He used to own a boat and regularly fished at Lake Eildon or on the Upper Goulburn River. He tried to fish after the incident but found the jarring of the boat on the water caused an increase in his back pain and he has not been fishing again.
· He used to enjoy going surf fishing in Gippsland. He has not done this since his injury as he does not believe he could cast a surf road or stand on the beach for any length of time.
· He lives with his 76 year old mother and tries to help around the house but finds domestic housework difficult. Even simple activities such as standing at the kitchen bench and preparing a meal or at the sink washing the dishes, can cause his back to flare-up in pain. He tries to avoid household chores which involve him working below waist height or which require him to work in a bent position.
The plaintiff’s pre-existing back problems
34 While in his closing address Counsel for the defendant conceded that on 23 February 2007 the plaintiff had suffered a work-related aggravation/ acceleration of his underlying lumbar spine degeneration, it was submitted that his present problems were not the consequence of the aggravation/acceleration of his pre-existing condition.
35 In support of this submission, the defendant relied, in particular, on the following:
· Records from the Alexandra Medical Centre (AMC), the Marysville Clinic (MC), and the Kyabram Regional Clinic (KRC) revealing that the plaintiff had suffered from long-standing back pain from 15 August 2002 onwards. The plaintiff had no memory of these attendances except that he recalled having some past upper back pain.
· In 2002 it had been recognised in the Centrelink Treating Doctor’s Report (CR) that the plaintiff’s long-standing back pain and rheumatoid arthritis were disabling conditions. They had constituted a second reason for his entitlement to an invalid pension (schizophrenia being the first reason).[9]
[9] DCB, p. 53 and p. 56.
· The plaintiff had reported having a CT scan done at the Shepparton Base Hospital in 1999 which had confirmed the diagnosis.[10]
[10] DCB, p. 12.
· There was reference to chronic back pain and hip pain after car accident eight months ago (on 28 February 2008) [11]
[11] PCB, p. 92. See also PCB p. 120, where Mr Shannon reported that plaintiff told him that this injury was to his upper back.
· The plaintiff’s current symptoms as at 12/12/2002 were described in the CR as “-recurrent pain on normal activity. Becomes stiff and painful on rest/ remaining in one position. Pain occurs daily” It was also noted that he had difficulties sitting for any length of time and recurrent pain on mobilising any distance.[12]
[12] At p. 13.
· In the CR the prescription for the back pain condition was Panadeine Forte. [13]
· The records of the AMC confirmed the plaintiff’s requirement for continuing analgesic treatment going back to 2002
[13] At p. 13.
36 The defendant relied on this history of back pain going back to 2002 in submitting that the consequences the plaintiff now complained of were pre-existing and did not arise from the aggravation of his underlying lumbar spine degeneration in February 2007.
37 With respect to the plaintiff’s work capacity, the defendant’s case was that he had a light work capacity which predated the work-related incident in February 2007.
Finding
38 The defendant admits that the plaintiff suffered a work-caused injury on 23 February 2007, being an aggravation/acceleration of pre-existing lumbar spine degeneration. This was the opinion of Mr Dooley and Mr Shannon. It is consistent with the radiological investigation which revealed injury to the L4-5 disc with protrusion to the left of the midline.
39 Mr Braznor and Mr Brownbill were essentially in agreement with this diagnosis other than that there was possibly an initial aggravation of the plaintiff’s underlying degenerative condition in March 2006 and then a further aggravation in February 2007.
40 I accept the plaintiff’s evidence that on 23 February 2007 when he was lifting the second metal plate he felt a sharp pain in the base of his back, near his hipline and that he was bent over when he felt the pain. I find that this episode of lifting caused a aggravation /acceleration of his pre-existing lumbar spine degeneration.
41 I accept that the plaintiff had pre-existing degenerative changes to his spine and indeed that these changes were symptomatic. However, when comparing the plaintiff’s situation prior to the work incident in February 2007 to the situation after the work incident it is apparent that there have been very considerable changes.
42 The second injury, as an aggravation of the first injury (the pre-existing degenerative changes) must itself qualify as a serious injury, that is, the additional impairment caused by the aggravation must bear consequences of sufficient magnitude (more than significant or marked and at least very considerable) for the second injury to qualify as a serious injury . [14]
[14] See Petkovski v Galletti [1994] 2 VR 427
43 I accept that the additional impairment to the plaintiff’s lumbar spine means that he no longer has the capacity to do manual work. In addition that he is no longer a reasonably active person, he cannot enjoy partaking in the handyman work he once did, he is not able to continue with boating or fishing and he struggles to help his mother with household chores.
44 In making this decision I have taken into account that the medical records and Centrelink documentation relied on by the defendant. However, although this documentation clearly shows that the plaintiff suffered from back pain and arthritis from 2002 on woods there is no evidence that it stopped him from taking part in any of the recreational activities referred to above.
45 With respect to medication for his pain after the work-related incident in 2007, the plaintiff was prescribed Mobic, Panamax and Panadeine Forte. His evidence was that he now takes Osteo Forte three or four times a day for back pain. The level of his pain fluctuates but it is particularly bad in winter. He now has trouble sleeping and has been prescribed medication to help him sleep.[15]
[15] PCB, pp. 31-34.
46 While I accept that the plaintiff has taken Panadeine Forte for back pain and other medical issues, including arthritis,[16] prior to his injury in February 2007, however the medical records do not always refer to the reason for the pain medication script. However, even if he previously took medication for back pain, I accept that the plaintiff now needs to take medication for the low back pain related to the work-incident in February 2007.
[16] See note from the MC on 10 January 2007. Codeine phosphorate for arthritis of neck and right shoulder present since about 2003; See PCB, p. 61 providing neck playing up at present, using Panadeine Forte every 2/52 but stable use; AMC notes at PCB, p. 71 stating pain in neck for 14 months.
47 I reject the defendant’s submission that prior to February 2007 the plaintiff had a light work back. This is inconsistent with the fact that, despite the pre-existing degenerative condition of his lumbar spine, the plaintiff was able to lift the metal plates from 2001 until the episode in February 2007. In his second affidavit, the plaintiff deposed that he had to perform the manoeuvre of lifting the metal plates several hundred times during the course of his employment.[17]
[17] Plaintiff’s affidavit, p. 13, para. 5.
48 I am satisfied that, as a result of this incident at work, the plaintiff has an impairment or loss of body function of the lumbar spine, the pain and suffering consequences of which are when judged by comparison with other cases in the range of possible impairments or losses of body function fairly described as being more than significant or marked and as being at least very considerable. Consequently I grant his application for leave to bring proceedings for pain and suffering.
Work capacity
49 The effect of the requirements in s 134AB(38) of the Act is that to establish that he suffered a loss of earning capacity the plaintiff has to satisfy the test in paragraphs (e) (i) and (ii), that is, he must establish that his post-injury earning capacity is at least 40 per cent less than his pre-injury earning capacity and that he will continue permanently to have such a loss of earning capacity.
50 The case for the plaintiff is that as a result of his low back injury and resulting impairment he is no longer fit to carry his work as a transfer station attendant. This was submitted to be a very substantial consequence. In particular, because the plaintiff had commenced employment in February 2001 with an already compromised or impoverished earning capacity due to his schizophrenia and rheumatoid arthritis problems.
51 Despite his disabilities, the plaintiff was able to demonstrate that he could do this transfer station attendant work consistently because he did it from 2001 through to February 2007. It was submitted that for the plaintiff to have the further added impingement of the low back injury upon an already impoverished earning capacity, meant that he had no meaningful capacity for suitable employment.
52 The medical restrictions placed on him meant that he was not allowed to bend or deal with objects below waist level or lift greater than five kilograms. He could not do clerical work due to his educational background. This became a very significant and further reduction, such that it almost obliterated any practical capacity to do work for which he could do in the order of 19 hours a week.[18]
[18] Transcript pp. 47-48.
53 The defendant relied on the opinion of Mr Brazenor and Dr Yong in submitting that the plaintiff had a current capacity to perform his pre-injury duties as long as they complied with the restrictions that he avoided repeated bending, twisting of the back, avoided firm pushing, pulling, varied his posture regularly between sitting, standing and walking and avoided lifting more than 5 kg. In addition on Mr Dooley’s opinion that the plaintiff had the capacity to carry out light physical work and clerical duties.
54 In addition with respect to the plaintiff’s loss of earning capacity, the defendant relied on the fact that the plaintiff was only working 19 hours per week and earning a relatively small salary. It was submitted that it was virtually impossible to establish the threshold, being 40 per cent of his pre-injury wages. This was because the loss was so small in monetary terms that it could not be regarded as serious.
55 The plaintiff however relied on Guppy v Victorian WorkCover Authority,[19] a decision of the Court of Appeal delivered on 25 June 2010. This was a case of an individual who had a series of injuries where with each successive injury he was reduced to limited hours of work. He got down to a small number of hours that he could only work but still had the greater than 40 per cent loss arithmetically speaking.
[19] [2010] VSCA 164.
56 In Guppy’s case, counsel for the respondent gave an example of a person who was working, four hours per week before the injury which was reduced to two hours per week as a result of the injury. Although this would represent a 50 per cent loss of earning capacity, the consequence were submitted to hardly be described as very considerable. However, the court said:
“There may be circumstances in which such an argument would succeed but this is not such a case. I am satisfied that in Mr Guppy’s case the 40 per cent loss of earning capacity satisfies the very considerable test. For an already impoverished person to lose 40 per cent of his already reduced work capacity is a consequence that must on any measure be reviewed as very considerable.”[20]
[20] At para. 51.
57 However, in this case I am satisfied that the plaintiff has the capacity to carry out his pre-injury duties as described in Dr Yong’s report of 5 March 2013 which description was not challenged. According to that report, the plaintiff was able to work part-time, being 2hrs on Monday, Wednesday and Thursday. On Saturday he worked 6 hrs and on Sunday for 6 hrs.
58 The plaintiff would be based in a hut and residents would drive to the hut to discuss where they would put their rubbish. There was a seat provided in the hut so he could have a variety of sitting, standing or walking postures. He would direct the customer to where they would unload their waste.
59 Mr Yong concluded that the tasks had minimal manual handling and that they were self paced. They involved a variety of postures. There was an avoidance of repeated bending and twisting of the back. These tasks comply with limitations advised by Mr Shannon, Mr Brazenor, and Mr Dooley.
60 When he was cross-examined, the plaintiff agreed that after he returned to work he was not required to lift the lids. In addition, that his duties were to collect the cash and give directions as to where the rubbish was to be tipped He agreed that he could cope with the duties. However, that he didn’t really like this and felt that he should be doing more.[21] When he was re-examined, he said that he stopped work because there was no heater in the office and it was affecting his back.
[21] Transcript, p. 28.
61 I find that despite his various difficulties the plaintiff was capable of performing his pre-injury job and jobs of a similar light nature. Given this finding, I am not satisfied that the loss of earning capacity consequences of the injury can be fairly described as being more than significant or marked and as being at least very considerable when judged by comparison with other cases in the range of possible impairments. Given this finding, the plaintiff’s application for leave with respect to loss of earnings is refused.
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