Bradley v Gruma Oceania Pty Ltd & Victorian Workcover Authority
[2014] VCC 823
•5 May 2014
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01618
| MARK BRADLEY | Plaintiff |
| v | |
| GRUMA OCEANIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 30 April 2014, 1 May 2014 and 2 May 2014 | |
DATE OF JUDGMENT: | 5 May 2014 | |
CASE MAY BE CITED AS: | Bradley v Gruma Oceania Pty Ltd & Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 823 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION
Catchwords: Serious Injury – injury to the spine
Legislation Cited: Accident Compensation Act 1985
Judgment:Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr D J N Purcell | Arnold Dallas McPherson |
| For the Defendants | Mr W R Middleton QC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
1 This application for leave under the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of pecuniary loss damages relies on a paragraph (a) spinal injury and a consequential impairment of the function of the spine. The injury is said to be crush fractures of the thoracic spine and/or aggravation of degenerative changes in the spine.[1] The plaintiff alleges the injury occurred in a lifting incident at work on 28 March 2008.
[1]Transcript (“T”) 1
2 The defendants indicated the issues were firstly, that the crush fractures were not caused in the course of employment. Secondly, incapacity for work is not related to any spinal condition but to other non-compensable reasons.[2] It could be said that the discrete issue was really whether the plaintiff has discharged the onus of establishing that he has suffered a permanent loss of earning capacity of 40 per cent or more.
[2]T11-12
3 I find he has not discharged that onus for the following reasons. I note the recent repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless clear, proper and adequate reasons are required. However it is not necessary in this case to describe the evidence in any great detail. The evidence and the gaps in the evidence are largely self-explanatory.
4 The plaintiff has not discharged the onus of proof in regard to his suffering crush fractures of the thoracic spine on 28 March 2008. I am satisfied he suffered low back symptoms with some probable aggravation of pre-existing degeneration. However there has not been proved a permanent loss of earning capacity that satisfies the test from such aggravation of degenerative changes suffered on 28 March 2008.
5 On 6 October 2011, the defendants admitted liability for a s98C award that has been specifically limited to “back (specifically lumbosacral spine only”.[3] The monetary award offered with that specific limitation has been accepted by the plaintiff.[4] It goes without saying the alleged crush fractures higher up in the spine have never been the subject of an admitted compensable injury, quite the contrary. The plaintiff is a man aged fifty-six years. He has unfortunately suffered a number of medical problems over many years.
[3]Plaintiff’s Court Book (“PCB”) 152
[4]Defendants’ Court Book (“DCB”) 47
6 For much if not all his adult life he has suffered from alcohol addiction. He is also on the probabilities addicted to marijuana. Other problems of serious psychiatric illness have been also manifest for years. There are also physical injuries in addition to the spinal aggravation suffered on 28 March 2008. To the plaintiff's great credit he has managed to stay in factory type manual employment over many years.
7 After the 2008 injury, he returned to work in the factory full-time on light duties, still performing manual labour. He so worked until the factory shut down and all the workforce was made redundant in October 2008. Being a country man, he refused an offer to work in Melbourne. That decision was reasonable and understandable.
8 The plaintiff was candid enough to admit that if his old employer was still operating in Bendigo and his job was offered he would give it a try. Unfortunately he has not been able to find other work and I accept this is because of a litany of problems and not because of his spinal impairment suffered in the aggravation.
9 The plaintiff swore one affidavit only in 2012. No up-to-date affidavit evidence has been produced. That affidavit is not accurate in a number of respects. The section headed “Prior Injuries” is significantly deficient.[5] If it was intended in the two paragraphs that appear thereafter to give the reader or the insurer or the Court a proper understanding of his other health problems, it is glaringly inadequate.
[5]PCB 17
10 Even adding to these two paragraphs the additional paragraphs 16, 17, 27 and 32, the affidavit does not paint anything like a comprehensive or accurate picture of the plaintiff's health issues and medical history. No more needs to be said than to contrast this document with the applications to Centrelink for benefits the plaintiff signed on 15 December 2009,[6] 8 June 2010[7] and 3 August 2011.[8]
[6]PCB 29-26
[7]PCB 37-50
[8]PCB 52-59
11 In each application his various conditions were described to Centrelink in numerical order. They were listed by his longstanding general practitioner in these applications and signed off by the plaintiff. In 2009, some eleven months after he ceased work, the only condition mentioned is “Depression/Anxiety”. A number of significant consequences are then set out in that document for Centrelink’s attention.
12 These include very considerable comments on his ability to function.[9] His spine is not even mentioned. In 2010, the conditions listed in support of his application for Centrelink benefits consist of five problems:
[9]PCB 31
“(1) low back disc degeneration and crush fractures;[10]
(2)numbness in both hands, carpal tunnel syndrome;[11]
(3)right wrist pain;[12]
(4)alcohol and marijuana use.[13] [That condition was said to make him ‘essentially unemployable’];[14]
(5)depression”.[15]
[10]PCB 38
[11]PCB 40
[12]PCB 43
[13]PCB 45
[14]PCB 46
[15]PCB 47
13 After each injury there was listed a number of consequences that could be said to have a serious impact on earning capacity and enjoyment of daily life. They do not need to be quoted as they speak for themselves in these Centrelink applications.
14 In 2011, there were two conditions listed for Centrelink purposes:
“(1) depression;[16]
(2) alcohol abuse and marijuana abuse.”[17]
[16]PCB 53
[17]PCB 55
15 The low back then only appeared in a section headed “Additional Information”.[18]
[18]PCB 57
16 When these documents and the other medical evidence are read together with the only affidavit, it is impossible to take much, if any, of the affidavit as being accurate and reliable. Even in cross-examination the plaintiff conceded the most basic errors had been sworn to in the affidavit.
17 By way of example, he did not stop golf because of the back problem. It was due to some wrist and arm symptoms. When that occurred, in what circumstances and whether treatment was needed is simply not addressed in any details in the evidence before the Court.[19] The left hip was not painful. It was the right hip.[20] He did not see Dr Tenni the following day.[21] There are other matters in the affidavit that were plainly wrong.
[19]PCB 23; T32-33
[20]PCB 21; T29
[21]PCB 21; T28
18 The histories given to doctors that form one of the foundations of their opinions are similarly defective in many ways. These inaccuracies were illustrated in cross-examination and are demonstrated in the transcript and need not be quoted here.
19 I found the plaintiff essentially an honest witness but one who was very unreliable and often quite inaccurate.
20 The application essentially fails due to a lack of sufficient evidence of permanent incapacity as required by the Act. The evidence does not sufficiently delineate the consequences of the impairment of the spine from his other multiple problems.
21 Accordingly, the evidence fails to prove any permanent loss of earning capacity is attributable to or caused by the impairment of the function of the spine as is required.
22 There were many other examples where the evidence was left in an unsatisfactory state. For example, in a case where crush fractures in the thoracic spine or rib cage area are relied on, it emerged in oral evidence that some incident with another person caused rib fractures to the plaintiff. He said a bloke broke “all me ribs”.[22] There was no mention at all of this in the affidavit. Whether the fractures have healed; what relevance they have, if any, to radiological evidence of thoracic crush fractures and what treatment was required were just all left up in the air in terms of evidence.
[22]T38
23 I do not accept his evidence about the level of his back symptoms and the extent of any incapacities. I did not find he was consciously exaggerating. At times he was quite matter of fact about lack of real symptoms. The emphasis in the affidavit and oral evidence for this application is so at odds with the evidence provided for the Centrelink authorities that they just cannot be reconciled.
24 Other aspects of the case were relevant to credit. His drug and alcohol dependence made it clear his memory at times is defective. His demeanour in the witness box was not that of a reliable witness, although I repeat he was not consciously misleading in my view.
25 The plaintiff answered questions when he did not obviously understand them at times. He was compliant with the cross-examiner on occasions about a document when he was not even looking at the correct papers. I had to enlist the Court staff repeatedly to direct his attention to the document or the section in it counsel was taking him to, even though the document was right in front of him.
26 The evidence disclosed that he is having no treatment at all for his back complaints. No satisfactory reason was given.
27 I find he worked full-time on light duties up to the factory closure and his spinal condition was not in any way the cause of his ceasing employment. I do not accept it keeps him out of work now.
28 In October 2008, when he was made redundant, he had a residual capacity for full-time light factory work. He probably still has that now when looking at any impairment of the spine on its own. If he has lost his earning capacity since, which I do not find, it is for other health problems and not due to the March 2008 aggravation.
29 It remains then to examine whether the medical evidence of itself establishes the requisite loss of earning capacity. To say the evidence from treaters is sparse is an understatement. Dr Tenni, the general practitioner, is really the only one, and the treatment has been next to nothing for years.[23] The last three visits to that doctor over a period now of two years, from 22 February 2012 to 23 October 2013, indicate no treatment at all for his spine.
[23]PCB 60-61
30 Indeed, the only reference to it at all is a brief record of the plaintiff’s solicitor requesting an x-ray and recommending the plaintiff see his doctor.[24] This was obviously in a medico-legal context and clearly did not spring from the plaintiff pursuing medical attention to treat his spinal symptoms.
[24]PCB 61
31 There is no other treatment from anyone but this general practitioner.
32 The last specific word on earning capacity from Dr Tenni is now five years old, when he said:
“The plaintiff has long term alcohol and pot intake which is now preventing him from getting work.”[25]
[25]PCB 28
33 The only other material from this doctor is found in the Centrelink applications with their multiple medical conditions that the evidence does not disentangle in terms of consequences. What Dr Tenni did say in the last Centrelink application in 2011, when the low back was described, it is under a question referring to conditions that are “generally well managed and cause minimal or limited impact on ability to function”.[26]
[26]PCB 57
34 The only limit on work capacity the general practitioner referred to there was “frequent bending”.
35 The very limited treater evidence does not support leave to pursue proceedings for the recovery of loss of earning capacity damages.
36 Turning to the medico-legal evidence, it has to be examined against a background of it all being significantly tainted by incomplete or inaccurate histories. Examples are: Mr T Kossmann;[27] Mr Murphy;[28] Mr P Moran;[29] Mr B Dooley[30] and Mr M Dooley.[31] A number of these reports are also too dated to assist much in an assessment required now in May 2014.
[27]PCB 62 and 64
[28]PCB 67
[29]PCB 70 and 72
[30]PCB 74-75
[31]PCB 81
37 Apart from a psychiatrist, Dr N Ingram in 2013, there is no surgical or specialist opinion for the plaintiff since 2012 when Mr Murphy and Mr Moran reported. What the current medical position is now in April 2014 is just not made out on the evidence.
38 Mr Dooley, for the defendants, reported in March 2013. This is the most recent report and it is now over twelve months old. His final word was that with respect to work, the plaintiff “would have the physical capacity to undertake light physical work”.[32] This in fact was what he was doing until being made redundant in October 2008.
[32]PCB 83
39 Indeed, looking at the medico-legal evidence on physical work capacity, the preponderance of opinion is the plaintiff still had at the time of those reports a residual capacity for light physical work.[33]
[33]Mr Kossmann at PCB 65; Mr Murphy at PCB 68; Mr Moran at PCB 72; Mr B Dooley at PCB 76, and Mr M Dooley at PCB 81
40 I find this is the capacity he was exercising when he was made redundant. He still has that capacity looking at the spinal condition alone on the probabilities.
41 It is not necessary to detail or comment on the other evidence that has been tendered.
42 It also remains at the end of all the evidence that the compensable spinal condition has only been described by the plaintiff himself as “an ache”.[34] It is not apparently requiring treatment. He has virtually had none over the last six years.
[34]T47, T65
43 The condition has not been proved as producing a permanent loss of earning capacity as required by the Act.
44 The application is dismissed.
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